October 14, 2013

Catherine Digilio Grimes

Director of School Nutrition Programs

Virginia Department of Education

P.O. Box 2120

Richmond, VA 23218-2120

Dear Ms. Grimes:

The Virginia State Dairymen’s Association (VSDA) appreciates the opportunity to submit comments on proposed 8VAC20-740, Regulations Governing Nutritional Guidelines for Competitive Foods Sold in the Public Schools (adding 8VAC20-740-10 through 8VAC20-740-40).  This proposed regulation is required by Sec. 22.1-207.4 of the Code of Virginia.

About VSDA

The VSDA was founded in 1907. The goal of our organization is to represent and promote the dairy industry in Virginia. The VSDA is a member-organization that spans the state of Virginia and represents its members’ views on a state and federal level.  We are committed to ensuring a profitable and sustainable dairy industry in Virginia.

In general, VSDA shares the goals behind the proposed regulations.  We are proud to produce healthy, delicious dairy products that form a solid nutritional basis for promoting the health of all Virginians, especially our young people.   As farmers, we are part of an almost century-old tradition of funding programs to promote nutrition in public schools, through the National Dairy Council and regional dairy councils.

Reasons to Promote Dairy Consumption in Schools

We believe that any regulations which aim at improving students’ nutrient intake should promote dairy consumption.  In addition to their beneficial role in the diets of all Americans, milk and other dairy products are the #1 source of nine critical nutrients in children’s diets – protein, calcium, phosphorus, magnesium, potassium, riboflavin and vitamins A, B12 and D.  If more children consumed recommended amounts of dairy, their intakes of these nutrients would improve even further.

All dairy foods make a contribution to intakes of important nutrients.  For example, while milk is the #1 food source of calcium, cheese is #2.  For this reason, it is sound nutrition policy to encourage the consumption of fluid milk, cheese and yogurt in schools.  There are several reasons to promote a variety of dairy products; for example, students – including members of minority communities -- who have difficulty digesting lactose often find cheese or yogurt easier to consume than fluid milk.

One of the main reasons to encourage dairy consumption in Virginia schools is that most students are not getting recommended amounts of dairy in their diets.  Except for 2-3-year-olds, no age group of Americans meets recommended amounts on average.  The U.S. population as a whole consumes only 1.7 servings of dairy each day, on average, compared to the 3 servings that are recommended for most age groups.  As children get older, the gap between recommended and actual intakes tends to increase.  Intake of dairy is lower for females than for males, and lower among African Americans and Hispanics than among non-Hispanic whites.

We believe that the Department of Education shares our view that regulations should promote milk and other dairy products.  However, two aspects of the proposed regulations would, in fact, discourage dairy consumption, and we strongly urge the Department to revise these provisions.

Fluid Milk Should be Excluded from Regulation

The proposed rule appears to be internally inconsistent in its treatment of fluid milk, as well as inconsistent with the statute, which says that regulations are to apply to competitive foods “excluding beverages.” Since milk is a beverage, it should not be covered by competitive foods rules.  In fact, the regulation itself also says in two different places that it does not apply to beverages.  Proposed 8VAC20-740-10 (Definitions) defines “competitive food” as “excluding beverages.”  Proposed 8VAC20-740-20 (Applicability) also states clearly that the entire regulation “shall not apply to beverages.”

However, proposed 8VAC20-740-30 (Nutrition Standards) creates a general rule that “snacks and food items” may have no more than 35% of calories from total sugars.  It then provides exemptions for several beverages, including flavored milk with 22 grams of sugars or less.  The obvious question is:  If beverages are exempt from competitive foods standards, why is it necessary to exempt certain flavored milk from one of the competitive foods standards (i.e., the sugar limit)?  Moreover, does this imply that flavored milk with more than 22 grams of sugar is not exempt and is therefore subject to the 35%-of-calories standard?

Fluid milk processors have made substantial reductions in the amount of added sugars in school milk. As a practical matter, a large portion of the milk in Virginia schools does, in fact, meet or fall below the 22-gram limit, although some is marginally above this level.  Regardless, the reductions in sugar content have already occurred without the need for a regulation (in fact, they have occurred without any federal or state mandate as schools and their processors responded to previous concerns about sugar content and calorie levels).

Since standards recommended by the Institute of Medicine informed the Board of Education’s development of the regulations, and since the IOM did recommend a 22-gram limit, we assume that this limit’s inclusion in the proposed regulation is simply an accidental artifact of reliance on the IOM standards. 

Recommendation:  Language excluding beverages from the entire regulation should be retained in the final rule, and language exempting milk of any type from the sugar standard should be stricken.

Cheese Should be Treated Consistent with the Federal Standard

Cheese can be a popular snack, often in the form of string cheese or cheese and crackers.  Although cheese contains saturated fat, its other valuable nutrients make it the kind of nutrient-dense food that should be encouraged in schools, compared to more energy-dense foods that are often a source of empty calories.

With respect to the proposed regulations’ treatment of cheese, we would simply urge the Department to conform its regulations to federal standards.  In fairness to the writers of the regulations, the federal competitive food rules had not been written when the General Assembly enacted the statute behind the regulations, and federal rules had not been finalized at the time the Department was putting the proposed regulation together.  Now, however, there is an interim final federal rule, which we commend to the Department’s attention.

The federal regulations (7 CFR 210.11) set up a general standard for total fat and saturated fat content, and then exempt certain foods that are nutrient-dense. The general standard is the same as in the proposed Virginia regulation:  no more than 35% of calories from fat, and less than 10% of calories from saturated fat.  (The federal standard also calls for zero trans fat, but provides no exemption from this criterion.)  However, the federal standard exempts “reduced-fat cheese and part-skim mozzarella cheese” from the total and saturated fat limits. (Similarly exempted products include nuts, seeds, nut/seed butters and certain foods containing nuts and seeds.)

The federal exemption recognizes the important nutrient contribution that cheese makes as a healthy snack, while also encouraging greater use of reduced-fat and low-fat cheeses by specifically exempting them, but not exempting full-fat cheese.  The VSDA believes the federal standard is a good template for the Department to use.

Recommendation:  The proposed regulation should be modified to include an exemption from fat standards for reduced-fat cheese and part-skim mozzarella cheese identical to the corresponding exemption in the federal interim final rule for competitive foods.

VSDA appreciates the Department’s consideration of our views, and looks forward to working together in support of children’s nutrition and health.

Sincerely,

Eric Paulson

Executive Secretary

Virginia State Dairymen's Association