8VAC20-740 Regulations Governing Nutritional Standards for Competitive Foods Available for Sale in the Public Schools

REGULATIONS

Vol. 32 Iss. 17 - April 18, 2016

TITLE 8. EDUCATION

STATE BOARD OF EDUCATION

Chapter 740

Reproposed Regulation

Title of Regulation: 8VAC20-740. Regulations Governing Nutritional Standards for Competitive Foods Available for Sale in the Public Schools (adding 8VAC20-740-10 through 8VAC20-740-40).

Statutory Authority: § 22.1-207.4 of the Code of Virginia.

Public Hearing Information:

April 28, 2016 - 11 a.m. - James Monroe Building, 101 North 14th Street, 22nd Floor Conference Room; Richmond, VA 23219. The public hearing will begin immediately following adjournment of the Board of Education business meeting.

Public Comment Deadline: May 18, 2016.

Agency Contact: Catherine Digilio-Grimes, Director of School Nutrition Programs, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone [phone], or email [e-mail].

Basis: Section 22.1-207.4 of the Code of Virginia requires the Board of Education, in cooperation with the Department of Health, to promulgate and periodically update regulations setting nutritional guidelines for all competitive foods sold to students during regular school hours that are not part of the federal school lunch or school breakfast program.

Purpose: Section 22.1-207.4 requires the development and implementation of regulations regarding nutritional guidelines. In addition, the rising rate of obesity in children has become a major health concern, both because of its impact on childhood health and its potential effect on the development of chronic disease in adulthood. In response to this growing concern, attention has focused on the need to establish nutrition standards for foods in schools. Federal regulations governing the national school lunch and breakfast programs and afterschool snack program establish nutrition standards for school meals. In addition, federal regulations require every school division to have wellness policies that address nutrition and physical activity; the content and implementation of these local wellness policies have been at the discretion of the local school divisions. The proposed regulations would require each local school board to adopt the state nutrition guidelines as part of their existing local wellness policies.

Statewide nutritional guidelines for competitive foods available for sale to students on the school campus during the school day of any public school, and other public school food authorities such as residential child care institutions, would strengthen the local wellness policies and help address some of the factors that impact childhood obesity as well as increase the nutritional quality of foods offered in the school setting.

Substance: The language in the reproposed regulation is aligned with new federal regulation governing competitive foods in schools to provide clarity and consistency and avoid having different sets of regulations that school divisions would be required to follow. All references to beverages are eliminated. The reproposed regulation contains changes in the following sections:

• 8VAC20-740-10 - Definitions: modified several, added new definitions, and deleted some.

• 8VAC20-740-20 - Applicability: added item clarifying nonapplicability of food available for sale to adults only.

• 8VAC20-740-30 - Nutrition standards: reworded and expanded language to align with the federal regulation; added section on general standards, general exemptions and accompaniments.

• 8VAC20-740-40 - Implementations and compliance: expanded to address recordkeeping, oversight and compliance and noncompliance.

Issues: Nutrition standards for competitive foods can complement the federal school meal nutrition standards for an overall healthier eating environment in schools and implementation of consistent nutrition messages throughout the school day. Additionally, the rising rate of childhood obesity has become a major health concern because of both its impact on childhood health and as a contributing factor to the development of chronic disease in adulthood. In response to this growing concern, attention has focused on the need to establish nutrition standards for foods in schools by offering healthier food options on school grounds during the school day. From a nutritional perspective, the goal is to increase the consumption of whole grains, fruits, vegetables, and nonfat or low-fat dairy, and reduce fat, sugars, and sodium. Federal regulations governing the national school lunch program, school breakfast program, and afterschool snack program establish nutrition standards for school meals. Strengthened federal nutrition standards governing competitive foods became effective July 1, 2014, and these proposed state nutrition standards are aligned with the federal Smarts Snacks in School rules. Statewide nutrition standards for competitive foods available for sale to students during the school day on the school campus would help to strengthen local wellness policies and address some of the factors that impact childhood obesity. Potential disadvantages associated with this regulation to the public and regulated community include the following: (i) school divisions will be impacted administratively, as they will be required to adopt the new state nutrition standards as part of their required local wellness policies, and (ii) as schools change the food offerings on the school site during the school day to meet the adopted nutrition standards, they may experience financial impact. Disadvantages to the Commonwealth and agency include the following: (i) the Department of Education will be required to ensure compliance with these state and federal regulations throughout the local school agency and school food authority with existing resources, and (ii) the department may need to provide additional ongoing staff support and technical assistance to school divisions in the implementation of these regulations

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Chapter 718 (2010 Acts of Assembly) amended the Code of Virginia by adding § 22.1-207.4 on nutritional guidelines for competitive foods. The legislation requires the Board of Education (Board), in cooperation with the Department of Health, to promulgate and periodically update regulations setting nutritional guidelines for all competitive foods sold to students during regular school hours. The term competitive foods refers to food available for sale to students on the school campus during the school day other than meals reimbursed under programs authorized by the federal Richard B. Russell National School Lunch Act and the Child Nutrition Act of 1966. Pursuant to the legislation, the Board proposes for this regulation the maximum calorie, fat, sugar, and sodium content for competitive foods.

In addition, federal regulations require every school division to have wellness policies that address nutrition and physical activity. The content and implementation of these policies have been at the discretion of the local school divisions. The proposed regulations would require each local school board to adopt the state nutrition guidelines as part of their existing local wellness policies.

Result of Analysis. There is insufficient data to accurately compare the magnitude of the benefits versus the costs. Detailed analysis of the benefits and costs can be found in the next section.

Estimated Economic Impact. The U.S. Department of Agriculture adopted the Institutes of Medicines nutrition standards for competitive foods. These standards became effective as part of federal regulation on July 1, 2014. All schools that participate in the National School Lunch Program (NSLP) and School Breakfast Program (SBP) are bound by the federal regulation and its nutrition standards for competitive foods. All Virginia school divisions participate in the NSLP and SBP for elementary school. Chesterfield, Falls Church and Hanover do not participate in NSLP and SBP for high school. Falls Church does not participate in NSLP and SBP for middle school. All other Virginia school divisions participate in the federal programs for high school and middle school as well as elementary school.¹

The Board proposes competitive food nutritional standards (maximum calorie, fat, sugar, and sodium content) that are consistent with the federal regulation.² Thus, this proposed state regulation (8 VAC 20-740) will essentially only affect high schools in Chesterfield, Falls Church and Hanover, and the middle school in Falls Church.

Historically it has been common practice for schools to sell a la carte food items in addition to planned meals under the federal school lunch and school breakfast programs. An a la carte item means an individually priced food item served by the local school nutrition department that may or may not be part of the reimbursable meal under the federal child nutrition programs. A la carte items as well as food sold in vending machines and other food sold to students during regular school hours, including fundraisers, are subject to the maximum calorie, fat, sugar, and sodium content values in the federal and state regulations.

The standards in the federal regulation and this proposed state regulation effectively prohibit the sale of much of the competitive foods historically sold in schools. Thus, students will likely consume fewer foods during the school day that are high in calories, fat, sugar, and sodium. This may result in improved health for Virginia's schoolchildren. On the other hand it may have some negative consequences on revenues for schools. For example, one Virginia school division that on its own decided to stop selling french fries noticed an associated decrease in food sale revenue. This anecdotal example is countered though by a study³ published in the Journal of School Health which found that "Thus far, few data exist to substantiate the concern that changes in nutrition standards in schools lead to a loss in total revenue." An interesting phenomenon of increased participation in the National School Lunch Program was noted in a number of reports and might play a role in buffering financial losses.

At least some firms and farms which produce foods that meet the proposed standards for competitive food will likely encounter greater demand for their products. For example, standard hamburgers currently provided to schools do not meet the proposed standards, but healthier hamburgers which do meet the proposed standards and cost 20 percent more are commercially available.⁴ Of course at least some other firms and farms which produce foods that do not meet the proposed standards for competitive food will likely encounter lesser demand for their products. Since Virginia school divisions all together comprise a significant market, due to the combination of the new federal regulation along with this proposed state regulation there will likely be some adjustment in food production to meet the changed demand.

Businesses and Entities Affected. The proposed regulations affect the 132 public school divisions in the Commonwealth as well as food producers and distributors which supply schools with food.

Localities Particularly Affected. The proposed regulations particularly affect Chesterfield, Falls Church and Hanover.

Projected Impact on Employment. Due to the combination of the new federal regulation along with this proposed state regulation, at least some firms and farms which produce foods which meet the proposed standards for competitive food will likely encounter greater demand for their products. These firms may hire new workers. Other firms and farms which produce foods that do not meet the proposed standards for competitive food will likely encounter lesser demand for their products. These firms may layoff workers.

Effects on the Use and Value of Private Property. Due to the combination of the new federal regulation along with this proposed state regulation, the value of firms which produce foods which meet the proposed standards for competitive food may increase. The value of firms which produce foods that do not meet the proposed standards for competitive food may decrease.

Small Businesses: Costs and Other Effects. Small businesses which produce foods that are sold to schools and do not meet the proposed standards are likely to lose demand for their products. Depending on the product, it may be possible to adjust the product to meet the proposed standards. That would likely add to the costs, though.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that would both reduce costs and still produce the desired policy.

Real Estate Development Costs. The proposed regulations are unlikely to affect real estate development costs.

Small Businesses: If the proposed regulatory action will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules (JCAR) is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPBs best estimate for the purposes of public review and comment on the proposed regulation.

_____________

¹Source: Virginia Department of Education

²Pursuant to Chapter 718 (2010 Acts of Assembly), the proposed state regulations governing nutritional standards for competitive foods sold in public schools do not apply to beverages. The federal regulation does apply to beverages.

³Wharton CM, Long M, Schwartz MB. Changing nutrition standards in schools: the emerging impact on school revenue. J Sch Health. 2008; 78: 245-251.

⁴Source: a Virginia-based food distributor which currently serves several school divisions

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis completed by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the regulatory process under the Administrative Process Act.

Summary:

The reproposed amendments (i) establish nutritional standards for competitive foods available for sale to students on the school campus of any public school and other public school food authorities, such as residential child care institutions, during the school day; (ii) require all local school boards to adopt the nutritional standards as part of existing wellness policies; (iii) establish recordkeeping requirement; and (iv) require the Department of Education to ensure compliance with the standards.

The reproposed amendments are based on the Institute of Medicine's Recommended Standards for Competitive Foods in Schools and align the regulation with the U.S. Department of Agriculture interim final rule governing competitive foods in schools issued in June 2013.

CHAPTER 740
REGULATIONS GOVERNING NUTRITIONAL [ GUIDELINES STANDARDS ] FOR COMPETITIVE FOODS [ SOLD AVAILABLE FOR SALE ] IN THE PUBLIC SCHOOLS

8VAC20-740-10. Definitions.

"A la carte item" means an individually priced food item served by the local school nutrition department that may or may not be part of the reimbursable meal under the federal Child Nutrition Programs.

"After school activities" means activities that occur on [ the ] school [ grounds campus ] after [ regular school hours the school day ].

"Beverage" means a drinkable liquid.

"Calorie" means the amount of heat required to change the temperature of one gram of water from 14.5 degrees Celsius to 15.5 degrees Celsius. Calorie is used synonymously with kilocalorie as a unit of measure for energy obtained from food and beverages.

"Child Nutrition Programs" means school meal programs funded and regulated by the U.S. Department of Agriculture (USDA) and includes the National School Lunch Program (NSLP), School Breakfast Program (SBP), [ Afterschool Snack Programs (ASP), ] Child and Adult Care Food Program (CACFP), Summer Food Service Program (SFSP), and Special Milk Program (SMP).

[ "Combination foods" means products that contain two or more components representing two or more of the recommended food groups: fruit, vegetable, dairy, protein, or grains. ]

"Competitive food" means [ any all ] food [ , excluding beverages, sold available for sale ] to students on [ the ] school [ grounds campus ] during [ regular the ] school [ hours that is not part of the reimbursable meals served through the National School Lunch Program (NSLP), School Breakfast Program (SBP), or Afterschool Snack Program (ASP) day other than meals reimbursed under programs authorized by the Richard B. Russell National School Lunch Act (42 USC § 1751 et seq.) and the Child Nutrition Act of 1966 (42 USC § 1771 et seq.) ].

Competitive food includes all foods [ sold available for sale ] to students:

1. In school cafeterias as a la carte items [ not offered as a component of the planned reimbursable menu ].

2. In vending machines located on [ school grounds during regular school hours the school campus during the school day ].

3. As fundraisers held on [ school grounds during regular school hours the school campus during the school day ].

4. In school snack bars on [ school grounds during regular school hours the school campus during the school day ].

5. In school stores operated on [ school grounds during regular school hours the school campus during the school day ] by the school, a student association, or other school-sponsored organization.

6. At school activities such as special fundraisers, achievement rewards, classroom parties, school celebrations, classroom snacks, or school meetings held on [ school grounds during regular school hours the school campus during the school day ].

[ 7. In culinary education programs where food prepared as part of the educational curriculum is sold to students; however, this provision does not apply if food is sold to adults only. ]

This term does not apply to food a student brings from home for consumption at school [ or items available for sale to adults only in areas not accessible to students (e.g., teachers lounges) ].

"Dietary Guidelines for Americans" means guidelines jointly issued by the U.S. Department of Health and Human Services and U.S. Department of Agriculture and revised every five years and that provide authoritative advice based on current scientific evidence and medical knowledge for people two years of age and older about how good dietary habits can promote health and reduce risk for major chronic diseases.

[ "Food of minimal nutritional value" or "FMNV" means foods and beverages that are restricted by the U.S. Department of Agriculture (7 CFR 210.11(a)(2) and subsection (a) of Appendix B to 7 CFR Part 210 Definition) unless specifically exempted by USDA. The federal FMNV definition is limited to the following four specific categories of foods and beverages:

1. Soda water (any carbonated or aerated beverages, i.e., beverages that are labeled as "aerated" or that bubble and fizz for several minutes after opening).

2. Water ices (any frozen, sweetened water such as "…sicles" and flavored ice with the exception of products that contain fruit, fruit juice, milk, milk ingredients, or egg ingredients other than egg whites).

3. Chewing gum (regular and sugarless).

4. Certain candies (regular and sugarless), including:

a. Hard candy (e.g., sour balls, candy sticks, lollipops, starlight mints, after-dinner mints, sugar wafers, rock candy, cinnamon candy).

b. Jellies and gums (e.g., gum drops, jelly beans, and jellied and fruit-flavored slices and shapes).

c. Marshmallow candies, fondant, such as candy corn and soft mints, licorice, spun candy, and candy coated popcorn.

"Entree item" means an item that is either (i) a combination food of meat or meat alternate and whole grain rich food; (ii) a combination food of vegetable or fruit and meat or meat alternate; or (iii) a meat or meat alternate alone with the exception of yogurt; low-fat or reduced fat cheese; nuts, seeds, and nut or seed butters; and meat snacks (e.g., dried beef jerky). ]

[ "Kcal" means kilocalorie, commonly known as calorie, which is a unit of measure in the United States for energy obtained from food and beverages. A kilocalorie is equal to 1,000 calories. ]

"Obesity" means obesity in children and adolescents referring to the age-specific and sex-specific body mass index (BMI) that is equal to or greater than the 95th percentile of the BMI charts of the Centers for Disease Control and Prevention (CDC).

[ "Regular school hours" means the same as the standard school day, as defined in 8VAC20-131-5, a calendar day that averages at least five and one-half instructional hours for students in grades 1 through 12, excluding breaks for meals and recess, and a minimum of three instructional hours for students in kindergarten. Regular school hours does not include school-related activities or events that occur either before or after the standard school day, such as clubs, yearbook, band and choir practice, student government, drama, childcare programs, interscholastic sporting events, school plays, band concerts, or other school-related programs.

"School campus" means, for the purpose of competitive food standards implementation, all areas of the property under the jurisdiction of the school that are accessible to students during the school day.

"School day" means, for the purpose of competitive food standards implementation, the period from the midnight before to 30 minutes after the end of the official school day. ]

"School food authority" or "SFA" means, under the federal child nutrition laws, the entity that is legally responsible for the operations and administration of the local school nutrition programs (i.e., school division).

[ "School Health Advisory Board" or "SHAB" means an entity formed according to the provisions of § 22.1-275.1 of the Code of Virginia that assists in the development of wellness policies as required by § 204 of Public Law 108-265 (42 USC § 1751 et seq.) and develops an annual report of activities that is required to be submitted to the Department of Education as amended. ]

"Trans fat" means food items containing vegetable shortening, margarine, or any partially hydrogenated vegetable oil unless the label required on the food, pursuant to applicable federal and state law, lists the trans fat content as [ less than 0.5 zero ] grams per serving.

"Wellness policy" means a policy required for public schools participating in a nutrition program authorized by the Richard B. Russell National School Lunch Act (42 USC § 1751 et seq.) or the Child Nutrition Act of 1966 (42 USC § 1771 et seq.) [ that meets minimum standards designed to support school environments that promote student wellness ].

[ "Whole grains" means grains that are made with enriched and whole grain meal or flour in accordance with the most recent grains guidance from the U.S. Department of Agriculture Food and Nutrition Service.

"Whole-grain rich" means products that contain at least 50% whole grains and the remaining grains in the product must be enriched. ]

8VAC20-740-20. Applicability.

A. This [ regulation chapter ] shall apply to all public school divisions, public schools, and [ public ] school food authorities (SFAs) in the Commonwealth of Virginia.

B. This [ regulation chapter ] shall not apply to beverages.

C. This [ regulation chapter ] shall apply to the nutritional content of food items [ , excluding beverages, sold available for sale ] to students on the school [ grounds campus ] of any public school [ during regular school hours, and other public SFAs such as residential child care institutions, during the school day ]. It shall [ include apply to ]:

1. Foods [ sold available for sale ] to students in vending machines.

2. Foods [ sold available for sale ] to students as a la carte items in the school cafeteria.

3. Foods [ sold available for sale ] to students at snack bars and stores operated by the school, a student association, or other school-sponsored organization.

4. Foods [ sold available for sale ] to students at school activities such as fundraisers.

[ 5. Foods available for sale to students by culinary or other educational programs. ]

D. This [ regulation chapter ] shall not apply to the nutritional content of foods [ and beverages ]:

1. Provided [ through the National School Lunch, School Breakfast, and Afterschool Snack programs, as regulated by 7 CFR Part 210 and 7 CFR Part 220 as meals reimbursed under programs authorized by the Richard B. Russell National School Lunch Act (42 USC § 1751 et seq.) and the Child Nutrition Act of 1966 (42 USC § 1771 et seq.) ].

2. [ Sold Available for sale ] at snack bars, concession stands, or athletic events after [ regular school hours the school day ].

3. [ Sold Available for sale ] either during intermission or immediately before or after athletics events [ scheduled after the school day ].

4. [ Sold Available for sale ] for school-related fundraising activities that take place off [ the ] school [ grounds campus ].

5. [ Sold Available for sale ] during activities that take place after [ regular school hours the school day ], such as clubs, yearbook, band and choir practice, student government, drama, sports practices, interscholastic sporting events, school plays, and band concerts.

[ 6. Available for sale to adults only in areas not accessible to students.

E. The requirements of this chapter supplement 8VAC20-290 and 8VAC20-580, which remain in effect. ]

8VAC20-740-30. Nutrition standards.

 [ Competitive foods sold to students shall support the Dietary Guidelines for Americans by complying with the following nutritional standards:

A. The nutrition standards apply to all foods available for sale to students (i) outside the school meal programs; (ii) on the school campus; and (iii) at any time during the school day. The nutrition standards shall be consistent with the most recent Dietary Guidelines for Americans.

B. To be allowable, a competitive food must (i) meet all of the competitive food nutrient standards and (ii) must either:

1. Be a grain product that contains 50% or more whole grains by weight or have as the first ingredient a whole grain (i.e., whole-grain rich);

2. Have as the first ingredient one of the nongrain major food groups: fruits, vegetables, dairy, or protein foods (e.g., meat, beans, poultry, seafood, eggs, nuts, seeds, etc.);

3. Be a combination food that contains 1/4 cup of fruit or vegetable; or

4. Contain 10% of the Daily Value of a nutrient of public health concern based on the most recent Dietary Guidelines for Americans (i.e., calcium, potassium, vitamin D, or dietary fiber) for the period through June 30, 2016. Effective July 1, 2016, this criterion is obsolete and may not be used to qualify as a competitive food.

If water is the first ingredient, the second ingredient must be one of the food items listed in this subsection.

C. General exemptions:

1. Fresh, canned, and frozen fruits or vegetables with no added ingredients except water or, in the case of fruit, packed in 100% juice, extra light, or light syrup are exempt from the nutrient standards.

2. Canned vegetables that contain a small amount of sugar for processing purposes are also exempt from the nutrient standards.

3. An entree item offered as part of the national school lunch program under 7 CFR Part 210 or the school breakfast program under 7 CFR Part 220 is exempt from all competitive food standards if it is offered as a competitive food on the day of, or the school day after, it is offered in the lunch or breakfast program. Exempt entree items offered as a competitive food must be offered in the same or smaller portion sizes as in the lunch or breakfast program.

Side dishes offered as part of the lunch or breakfast program and served a la carte must meet the nutrition standards in this section.

D. The accompaniments to a competitive food item must be included in the nutrient profile as a part of the food item served in determining if an item meets the nutrition standards for competitive food. The contribution of the accompaniments may be based on the average serving size of the accompaniment used per item.

E. Nutrient standards: ]

1. Standard 1: Calories.

a. Snack items [ and side dishes sold a la carte ] (i) shall be [ no more than ] 200 calories [ or less ] per [ portion item as served ] or as packaged [ , including the calorie content in any accompaniments, such as butter, cream cheese, and salad dressing, and (ii) must meet all other nutrient standards ].

b. [ A la carte entree items shall not exceed calorie limits on comparable National School Lunch Program (NSLP) entrees. A la carte entree items shall not provide more calories or larger portion sizes than the comparable NSLP entree items. In accordance with 8VAC20-290-10, a la carte entree items for sale to students shall be limited to those entree items recognized as being components of the school breakfast program or school lunch program meal patterns.

Entree items sold a la carte, unless the entree item meets the exemption for NSLP/SBP entree items in subdivision C 3 of this section, shall (i) contain no more than 350 calories, including the calorie content of any accompaniments, per item as served or as packaged, and (ii) meet all of the other nutrient standards in this section.

c. The calories contained in any accompaniments must be included in the nutrient profile as a part of the item served. ]

2. Standard 2: Fat.

a. [ Snacks and food items shall meet the following criteria for dietary fat per portion or as packaged:

(1) No more than 35% of total calories from fat.

(2) Less than 10% of total calories from saturated fats.

(3) Zero grams of trans fat.

b. Exceptions: Nuts and seeds (allowed as combination products as long as other nutrient standards are met; the fat content will not count against the total fat content of the product).

Total fat. Competitive foods shall contain no more than 35% of total calories from fat per item as packaged or served. Exemptions to the total fat standard are granted for:

(1) Reduced fat cheese and part-skim mozzarella cheese. This exemption does not apply to combination foods.

(2) Nuts, seeds, and nut or seed butters. This exemption does not apply to combination foods that contain nuts, seeds, or nut or seed butters, such as peanut butter and crackers and trail mix.

(3) Products consisting of only dried fruit with nuts or seeds with no added nutritive sweeteners or fat.

(4) Seafood with no added fat.

b. Saturated fat. Competitive foods shall have less than 10% of total calories from saturated fat per item as packaged or served. Exemptions to the saturated fat standard are granted for:

(1) Reduced fat cheese and part-skim mozzarella cheese. This exemption does not apply to combination foods.

(2) Nuts, seeds, and nut or seed butters. This exemption does not apply to combination foods that contain nuts, seeds, or nut or seed butters, such as peanut butter and crackers and trail mix.

(3) Products consisting of only dried fruit with nuts or seeds with no added nutritive sweeteners or fat.

c. Trans fat. Competitive foods must have zero grams of trans fat per item as packaged or served. ]

3. Standard 3: Sugar. [ a. Snacks and food items shall provide no more than 35% of calories from total sugars per portion or as packaged b. Exceptions Total sugar shall be no more than 35% of weight per item as packaged or served. Exemptions to the sugar standard are provided for ]:

[ (1) 100% fruits and fruit juices in all forms without added sugars.

(2) 100% vegetables and vegetable juices without added sugars.

(3) Unflavored nonfat and low-fat (1.0%) milk and yogurt.

(4) Flavored nonfat and low-fat (1.0%) milk with no more than 22 grams of total sugars per 8-ounce serving.

(5) Flavored nonfat and low-fat yogurt with no more than 30 grams of total sugars per 8-ounce serving.

a. Dried whole fruits or vegetables.

b. Dried whole fruit or vegetable pieces.

c. Dehydrated fruits or vegetables with no added nutritive sweeteners.

d. Dried fruits with nutritive sweeteners that are required for processing or palatability purposes. ]

4. Standard 4: Sodium.

[ a. Snack items shall meet a sodium content limit of 200 milligrams or less per portion or as packaged.

b. A la carte entree items recognized as being components of the school breakfast program or school lunch program meal patterns that are not part of the planned reimbursable menu shall meet a sodium content of 480 milligrams or less per portion. Portion sizes for a la carte entree items shall not be larger than the comparable portion size for NSLP entree items

a. Sodium content in snacks (i) shall be no more than 230 mg per item as packaged or served, including the sodium content in any accompaniments, such as butter, cream cheese, and salad dressing; and (ii) must meet all other nutrient standards. Effective July 1, 2016, the sodium standard shall be no more than 200 mg per item as packaged or served, including the sodium content in any accompaniments.

b. Entree items sold a la carte, unless the entre item meets the exemption for NSLP/SBP entree items in subdivision C 3 of this section (i) shall have no more than 480 mg of sodium per item as packaged or served, including the sodium content in any accompaniments, such as butter, cream cheese, and salad dressing; and (ii) must meet all other nutrient standards in this section ].

[ 5. Standard 5: Foods of minimal nutritional value. In accordance with 8VAC20-290-10 and 7 CFR Part 210, all foods of minimal nutritional value (FMNV) as defined in 8VAC20-740-10 shall be prohibited from being sold to students on school grounds during regular school hours. ]

8VAC20-740-40. Implementation and compliance.

A. Each local school board shall [ incorporate and ] adopt [ these the ] nutrition [ guidelines as part of its existing local wellness policy standards in this chapter as a compulsory component of the divisionwide local wellness policy mandated by federal regulation for all local education agencies that participate in the national school lunch program. In addition to incorporating the nutrition standards for competitive foods, the local wellness policy shall (i) establish and identify school division leadership with the authority to enforce the local wellness policy throughout the school campus; (ii) establish specific goals for nutrition promotion, nutrition education, physical activities, and other school-based activities that promote wellness; and (iii) establish policies that address marketing and advertising of only foods that meet the nutrition standards for competitive foods, serve to promote student health, prevent childhood obesity, and combat problems associated with poor nutrition and physical inactivity ].

B. [ Each local school board shall submit annually to the Department of Education the School Health Advisory Board (SHAB) Progress Report as required by § 22.1-275.1 of the Code of Virginia. This report shall include a status report on the development and implementation of the local wellness policy. This report shall be used by the Department of Education to monitor compliance with this chapter. Local educational agencies and school food authorities must retain the records used to document compliance with this chapter; that is, the documentation used to assess the nutritional profile of the food item and determine whether a food item is an allowable competitive food (e.g., the nutrition labels, recipes, or product specifications).

1. Local educational agencies:

a. Shall be responsible for maintaining records documenting compliance with the competitive food nutrition standards for food available for sale in areas that are outside of the control of the school nutrition programs operation.

b. Shall be responsible for ensuring any organization or school activity designated as responsible for food service at the various venues in the school (other than the school nutrition programs) maintains records documenting compliance with the competitive food nutrition standards.

c. Shall designate an individual at the division or school level to monitor and ensure compliance with this chapter in all areas that are outside the control of the school nutrition programs operation. This designee shall not be school nutrition personnel.

2. The school food authority shall be responsible for maintaining records for foods served under the auspices of the nonprofit school nutrition programs account.

3. The Department of Education shall ensure that the local education agencies and school food authorities comply with these nutrition standards. Noncompliance determined by the local education agency, school food authority, or Department of Education shall require corrective action. ]

VA.R. Doc. No. R11-2611; Filed March 24, 2016, 9:20 a.m.