On April 27, 2012, the U.S. Department of Agriculture (“USDA”) issued an interim final rule that will provide additional financial assistance to schools serving lunch and breakfast meals that comply with the updated menu planning and nutrition requirements for the National School Lunch Program (“NSLP”) and the School Breakfast Program (“SBP”). The interim rule, which amends the current NSLP regulations to conform with requirements in the Healthy, Hunger-Free Kids Act of 2010 (“HHFKA”), is intended to provide an incentive to increase school participation in the NSLP and SBP, improve the dietary habits of school children, and reduce childhood obesity.

Under the interim rule, state agencies that administer the NSLP and SBP will certify local school food authorities (“SFAs”) that comply with the updated NSLP and SBP menu planning and nutrition requirements that were adopted by the USDA in January 2012. SFAs can receive certification by demonstrating that both lunches and breakfasts served to students meet the nutritional requirements in effect at the time of certification. Certified SFAs will then be eligible to receive a performance-based cash reimbursement of 6 cents for each reimbursable lunch served. The performance-based assistance is intended to offset the cost of complying with the enhanced nutrition requirements and will be in addition to the general cash assistance that SFAs currently receive to supplement the cost of providing free or reduced price meals to low-income students.

Once certified, SFAs will be required to demonstrate continued compliance with the NSLP and SBP meal pattern requirements by providing the state agency with an annual attestation of compliance, along with a representative sample of lunch and breakfast menus and a school meal nutrient assessment. SFAs also may demonstrate compliance during the course of a regular state agency administrative review, if the state offers such an option. Certified SFAs also must maintain documentation of compliance, including food production and menu records, and they must make appropriate records available to the state agency upon request. If a state agency determines that a certified SFA has failed to maintain compliance with the updated meal patterns for the school lunch program, the SFA may not be eligible to continue receiving the performance-based reimbursement. Notably, an SFA that fails to comply only with the nutrition requirements for the school breakfast program will not jeopardize the performance-based reimbursement for eligible lunches served under the NSLP.

The interim rule represents the most recent initiative by the USDA intended to improve the dietary habits of school children and address health concerns related to child obesity. In March 2012, for example, the USDA issued a proposed rule that would provide certain schools with funding to purchase fresh fruits and vegetables that would be made available during the school day.

Parties interested in submitting comments on the USDA interim rule may do so on or before July 26, 2012.