Proposed Amendments to Part 305 (School Food Service)

At its January 2014 meeting, the State Board discussed options available to the agency to comply with federal regulations implementing the Richard B. Russell National School Lunch Act (42 USC 1751 et seq.) and Child Nutrition Act of 1966 (42 USC 1771 et seq.), as amended by the Healthy, Hunger-Free Kids Act of 2010 (P.L. 111-296).  Those regulations, promulgated by the U.S. Department of Agriculture (USDA), require that starting July 1, 2014, all schools participating in the National School Lunch Program and School Breakfast Program comply with federally established competitive food standards for food and beverages sold on the school campus during the school day. 

Referred to as the "Smart Snack" rules, these competitive food standards also apply to any food and beverages sold through school-sponsored fundraisers.  Under the federal regulations, participating schools either may sell foods and beverages that meet the standards to students on the school campus during the school day or may sell food and beverages not meeting the standards to students "during non-school hours, (on) weekends or (through) off-campus fundraising events, such as concessions during sporting events and school plays". 

The federal regulations further authorize participating schools to sponsor fundraisers that offer food or beverages not meeting the standards (i.e., "exempted fundraising days") if their respective state education agency (SEA) has set a limit that ensures these types of fundraisers are "infrequent".  While USDA did not define "infrequent" in its rules, it did state that any established limit should be such that it would not "impair the effectiveness of the Smart Snack requirements".  In the event that a SEA fails or declines to set a limit, then participating schools in that state are prohibited from sponsoring exempted fundraising days. 

When considering a limit for exempted fundraising days earlier this year, Nutrition and Wellness Program staff conducted an initial consultation with 500 participating schools.  Based on the results of that consultation and direction staff received from the State Board of Education in January, staff initially proposed that participating schools be allowed to set their own limits for exempted fundraising days via a school-board adopted policy.  That initial recommendation was shared with USDA for its review and approval; however, USDA staff in late April concluded that a state "may not delegate the authority to specify exempt fundraiser frequency to local education agencies or to school food authorities".

In response to USDA's direction, staff now are proposing limits for exempted fundraising days that would phase in the impact of the Smart Snack standards over the next several school years, culminating in school year 2016-17 with a prohibition for exempted fundraising days for participating schools with grades 8 and below and a limit of nine exempted fundraising days for participating schools with grades 9 through 12.  (Further details about the proposal are outlined below".)

In May, staff shared the proposed limits for exempted fundraising days with the Illinois Association of School Business Officials, Illinois Association of School Boards, Illinois Association of School Administrators and Illinois Principals' Association.  While the groups recognized that the State Board had to adopt a limit on the number of exempted fundraising days that could be held, their representatives continued to urge the State Board to allow as much flexibility as possible.
As noted above, the proposed amendments set limits on exempted fundraising days that will be fully implemented by the 2018-19 school year (see Section 305.15(b)).  The phase-in approach being proposed gives time for participating schools to modify current contracts, agreements and overall operations to ensure a minimal impact on various school activities, clubs and organizations that rely on revenue from these types of fundraisers.  This approach also allows the food and beverage industry time to reformulate products to meet the Smart Snack standards that can be sold in place of the items currently sold.  Additionally, the proposed amendments encourage participating schools to move in the direction of healthier school environments.  Nutrition and Wellness Program staff will work together with school administrators to promote the use of non-food fundraisers and encourage the consumption of healthy foods that meet the Smart Snack standards, such as whole grains, low-fat dairy, fruits, vegetables and healthy protein food options.

Under the proposed amendments, high schools will be allowed to hold approximately one exempted fundraising day during each week school is in session (i.e., 36).  After two school years, the number allowed will be reduced by half to 18, eventually moving to one exempted fundraising day a month (i.e., nine annually), starting in the 2018-2019 school year.

For elementary schools, a limit of nine exempted fundraising days will be allowed in the first two years of implementation, reducing to four exempted fundraising days in years three and four, and then none beginning with the 2016-17 school year.  Reducing the number of exempted fundraising days at the elementary level to zero aligns to the goal of USDA and the health advocacy groups.  The gradual phased-in approach also provides time for school districts with participating schools to identify and adapt to non-food fundraising options.

The proposed amendments also recognize the difference articulated in the current rules between elementary schools (grade 8 and below) and high schools.  Since 2006, Section 305.15 has established food and beverage standards for the sale of foods to students in grades 8 and below.  For this reason, the Smart Snack regulations will most likely have a minimal impact on the fundraising efforts in elementary schools.

By contrast, the Smart Snack standards will have a major impact on high schools, to which no state nutrition standards currently apply.  The decision to propose a greater number of exempted fundraising days for high schools would minimize the consequences of reduced revenue and its resulting effect on school programs and activities, while providing necessary flexibility at the local level for school boards and administrators to adjust practices and policies to align to the Smart Snack standards.  Nutrition and Wellness Program staff also believe that the higher limit for high schools will encourage continued participation in the federal meals programs, since staff have heard anecdotally that school districts may drop their high schools from the National School Lunch Program rather than conform to the standards.  The proposed amendments for high school limits also respond to feedback received through staff's external consultation urging a greater number of exemptions for high schools due to the increased frequency at which fundraisers are held. 

It is important to remember that the limits proposed in the amendments to Part 305 are the maximum number of exempted fundraising days that participating schools may hold, which does not eliminate those schools' flexibility to allow fewer than the maximum allowed. 

Initial Review by State Board of Education: June 2014

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