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CHAPTER 51 RULE

 

Chapter 51;
Child Nutrition Programs in Public Schools and Institutions
Frequently Asked Questions and Answers

Introduction

This rule; Chapter 51 Child Nutrition Programs in Public Schools and Institutions balances two important policy objectives. The rule is crafted to limit the sale of any foods or beverages that would compete with the school’s total food service program. This limitation is to ensure that the foods available to students are primarily those that meet the nutritional guidelines of the United States Department of Agriculture.

 This objective is balanced with a second objective- namely the furthering of community involvement through the use of the school as a community facility. The rule serves this objective by creating exceptions to the limitation of the sale of food and beverages to only nutritious foods, but does so in a manner that is aimed primarily at the public, not students, thus avoiding competition with students and the total food service program.

The further limitation is the rule on the accrual of funds from all foods and beverages to only the school or an approved student organization supports this policy objective and provides additional needed support to the school’s non-profit school food service program.

The rule also serves to influence a change in the culture of schools whereby children are constantly faced with abundant foods that exceed recommended caloric allowances, etc.

CHAPTER 51

(Please keep in mind there are Federal Regulations that prohibit the sale of foods of minimal nutritional value, as listed in appendix B of 7CFR 210 regulations, in the food service areas during the lunch periods.)

06/08/05

05-071 DEPARTMENT OF EDUCATION

Chapter 51: CHILD NUTRITION PROGRAMS IN PUBLIC SCHOOLS AND INSTITUTIONS

SUMMARY: This chapter contains state regulations which supplement federal regulations pertaining to the National School Lunch Program (which includes the After School Snack), the School Breakfast Program and the School Milk Program.

1. Definitions

A. “Foods of minimal nutritional value” as defined in 7 CFR 210.11, means: (a) In the case of artificially sweetened foods, a food which provides less than 5 percent of the Reference Daily Intake (RDI) for each of the eight specified nutrients per serving; (b) in the case of all other foods, a food which provides less than 5 percent of the RDI for each of eight specified nutrients per 100 calories and less than 5 percent of the RDI* for each of eight specified nutrients per serving. The eight nutrients to be assessed for this purpose are: protein, vitamin A, vitamin C, niacin, riboflavin, thiamin, calcium, and iron. This definition is applicable to the foods that are part of the total food service program of the school, and foods and beverages sold at food sales, school stores, and in vending machines.

 

B. “Total Food Service Program” means:

 

(i) the “Milk Program”, which in turn means the federal program under which fluid types of milk as defined in 7 CFR 215 are offered; or

 

(ii) the “Breakfast Program”, which in turn means the federal program under which a breakfast that meets the nutritional requirements set forth in 7 CFR 220 is offered; or

 

(iii) the “National School Lunch Program” (which includes the After School Snack), which in turn means the federal program under which the school operates a nonprofit lunch program that meets the requirements set forth in 7 CFR 210, and includes food provided in after school programs as defined in 7 CFR 210.2, and that meets the requirements of 7 CFR 210.10; or

 

(iv) any combination of the above.

 

2. Restriction on sale of Foods in Competition with the Total Food Service Program

Beginning July 1, 2005, any food or beverage sold at any time on school property of a school participating in the National School Lunch or School Breakfast Programs shall be a planned part of the total food service program of the school and shall include only those items which contribute both to the nutritional needs of children and the development of desirable food habits, and shall not include foods of minimal nutritional value as defined in Section 1 above, except that the local school board or the Career and Technical Education Region/Center cooperative board, established in accordance with 20-A MRSA Section  8301-A(6), may permit, by policy, the sale of food and beverages outside the total food service program:

A.  to school staff;

B.  to the public at community events sponsored by the school or held on school property;

C.  to the public at community events held on school property in accordance with the school board’s facilities use policy;

D.  in State-approved, instructional Career and Technical Education (CTE) Culinary Arts Programs.  and

E.  by a school, approved student organization or program if consistent with the requirement that such sales not include foods of minimal nutritional value as defined in 7 CFR, Section 210.11(a)(2).

 

Funds from all food and beverage sales made at any time on school property shall accrue to the benefit of the school's non-profit school food service program, except that the local school board or the Career and Technical Education Region/Center cooperative board, established in accordance with 20-A MRSA Section  8301-A(6), may establish, by policy, a process whereby a school, approved student organization, or sponsor of an event held in accordance with 2C above is allowed to benefit from the sale of food and beverages. This includes foods and beverages sold at food sales, community events, school stores, and in vending machines. 

 

3. Maximum Price for School Meals

 

The maximum charge to children shall be set annually by the Department in

consultation with the Superintendents of Schools School Nutrition Programs Advisory Committee.

 

4. Accounts and Records

Sponsors shall file claims on a monthly basis with the Division of school Nutrition Programs on a form provided by the Division. claims shall be filed by the 8th day of the month following month covered by the claim. Sponsors shall maintain accurate records of income and expenditures, inventories, daily service counts, and other pertinent records to provide data required on the claims for reimbursement.

STATUTORY AUTHORITY: 20-A MRSA, Section 6602

EFFECTIVE DATE: October 30, 1978

READOPTED: August 31, 1979

AMENDED: July 17, 2005

AMENDED: January 2006

 

EFFECTIVE DATE (ELECTRONIC CONVERSION): __________________

Listed below are questions frequently asked surrounding interpretations of this rule, and responses which clarify the requirements put forth in the rule.

 

  1. Q. Are sales of foods after school hours, to the public, considered sales to the public, or sales at a community event?

A. After school hours represents a time of day. This is not an event. An event is an occurrence or some type of activity that takes place.

 

  1. Q. What can be sold in vending machines, before and after school?

A. Only foods that are not considered foods of minimal nutritional value.

 

  1. Q. What is the federal listing of specific foods considered to be of minimal nutritional value?

 

A. These foods appear on line in Federal Regulation 7CFR210 Appendix B: Soda Water, Water Ices, Chewing Gum, And Certain Candies Such As: Hard Candy, Jellies and Gums, Marshmallow Candies, Fondant, Licorice, Spun Candy, and Candy Coated Popcorn. This regulation can be accessed at: www.fns.usda.gov

 

  1. Q. Can a student sell popcorn or bake sale items to classmates?

A. If the products are not considered foods of minimal nutritional value and the sale is permitted by school board policy.

 

  1. Q. Are foods and beverages sold in school stores restricted in any way?

A. Yes, all foods and beverages sold in school stores must not be considered foods of minimal nutritional value. Exceptions would apply only if the school store is available to the public during an event and school board policy allows school store purchases by the public.

 

  1. Q. Can the funds received from the sale of foods and beverages in a school store, vending machines, or from other food sales be retained by the sponsor of the sale?

A. Yes, if there is a policy established by the school board.

 

  1. Q. Can Girl Scout cookies be sold at school?

 

A. Yes, but only if the sale is to the public and during an event. Girl Scout cookies may not be sold to students.

 

  1. Q. Must funds from the sale of foods and beverages sold at any time on school property revert to the Food Service Program?

A. Yes, unless there is a written policy that meets exceptions A, B, C, D, or E or the rule.

 

  1. Q. Can a student organization sell foods of minimal nutritional value to the public at a community event?

A. Yes, exception B would apply.

 

  1. Q. Can a school board by policy allow soda to be sold in vending machines?

 A. No, the policy would violate Regulation, Chapter 51.

 

  1. Q. Must a food product contain more than 5% of all eight specified nutrients as defined in federal regulation in order to be acceptable?

A. No. The definition for foods of minimal nutritional value means that if all of the nutrients that are contained in given food product fail to meet the 5% rule, the food is considered a food of minimal nutritional value. If, however, at least one of the nutritients of those contained in a food product meets or exceeds the 5% rule, the food is acceptable.

 

  1. Q. What is the definition of “artificially sweetened foods?”

A. An artificially sweetened food is one that is sweetened with a non-nutritive sweetener such as saccharin, aspartame, Acesulfame, Potassium, and Sucralase.

 

  1. Q. Can the PTA sell apples to students after school and who benefits from the sale?

A. Yes. The funds received would revert to the Food Service Program, unless school board policy allows for the sponsor of the sale to benefit from the sale.

  1. Q. If a school dance that is open to students only and food is sold at the dance, who would benefit from the sales and what foods can be sold?

A. If the dance is not a public event, the school approved student organization or program sponsoring the dance could benefit from the funds by an approved policy of the school board. Food items sold must be acceptable in accordance with exception E of this rule.

 

  1. Q. Does the rule prevent me from continuing to sell cookies, brownies, or cakes as part of the a la carte offerings?

A. No. However, the cookies, brownies, and cakes that are sold must be acceptable as defined in this rule.

 

  1. Q. How does Chapter 51 affect current contracts with beverage companies that specify that soda (only their beverages) can be sold in vending machines?

A. Such contracts should be renegotiated to specify that only acceptable products will be supplied by the beverage company.

  1. Q. Are carbonated waters acceptable beverage products?

 

A. Yes

 

  1. Q. Can a student organization sell candy as a fund raiser?

A. Yes. However, students may only sell candy off the school property or in accordance with exceptions B and C of the rule.

 

  1. Q. Can students sell non-food items for fundraising purposes?

A. The rule only applies to the sale of foods and/or beverages.

 

  1. Q. Can foods of minimal nutritional value such as cupcakes or cookies be provided to students for celebrations/parties?

A. The rule only applies to the sale of foods and/or beverages. If foods are provided not sold, the rule does not apply.

 

  1. Q. If an after school Teen Center, sponsored by a community program, which is open to students only, and held in a facility on school property sells food to the students, must the foods that are sold meet the nutritional standards of this rule? Who benefits from the sale of foods in this situation?

A. The foods and beverages that are sold to students at this Teen Center must meet the nutritional standards of this rule. The sponsor of the Teen Center can benefit from these sales, only in accordance with school board policy.
 

  1. Q. Are cough drops and chewing gum defined as foods?

A. Yes. Federal Regulations consider cough drops and chewing gum foods of Minimal Nutritional Value. This regulation can be accessed at: www.fns.usda.gov

 

  1. Q. Can soda, chips, and candy be sold to the school staff?

A. Yes. Exception A of the rule applies to such sales.

 

  1. Q. Can school staff collect money from students to support a classroom pizza party?

A. No. The collection of money to pay for student’s participation in a classroom pizza party represents a food sale.

 

  1. Q. My High School does not participate in the National School Lunch Program; does this rule apply to my school?

A. No. The rule only applies to schools participating in the National School Lunch Program.

 

  1. Q. Can a student bring foods of Minimal Nutritional Value from home?

A. Chapter 51 does not apply to foods and beverages brought to school by students.

 

  1. Q. If a School Food Service Department is contracted to provide banquet catering for a community or public event, must the food service program benefit from the funds received?

A. Yes. However, exception B or C of the rule could apply to such situations.

 

  1. Q. Can the Career and Technical Education Programs (CTE) sell lollipops to students during school hours?

A. No. Lollipops are considered foods of Minimal Nutritional Value.

 

  1. Q. Can nutritious foods and beverages be sold to students during the school day through vending machines and school stores? If so, can the Board by policy allow profits to accrue to approved student organizations, or must these funds go to the Food Service Program?

 
A. Yes, with a policy in place the profits are allowed to go to the student organization as long as you are not selling foods of minimal nutritional value.

 

 

  1. Q. Can student groups sponsor sales of nutritious foods and beverages to students as well as staff? If so, can the Board by policy allow the profits to accrue to approved student organizations?

A. Yes.

 

  1. Q. If vending machines with nutritious foods and beverages are available to students after the school day; can the Board by policy allow funds from these vending machines to accrue to approved student organizations?

A. Yes.

 

  1. Q. We believe that it is the DOE’s intent that outside groups (Lions Club) that sell foods and beverages (nutritious or not) in accordance with the Boards facilities use policy are allowed to keep their profits for their own use. Con you confirm that this is correct?

A. Yes, if this is a public event with a policy in place.

 

JM/GL/aew

 

The complete rule can be viewed on the secretary of state page or by using this link Chapter 051.