The competitive food conundrum: Can government regulations improve school food?

Duke Law Journal

Volumn 56, Issue 6, 2007, Pages 1491-1539

  Fried, Ellen ^a   Simon, Michele ^b,c  

^a NEW YORK UNIVERSITY   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

^c Marin Institute   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ADOLESCENT; BEVERAGE; CATERING SERVICE; CHILD; ECONOMICS; FEEDING BEHAVIOR; FOOD HANDLING; GOVERNMENT; GOVERNMENT REGULATION; HEALTH CARE POLICY; HISTORY; HUMAN; LEGAL ASPECT; OBESITY; REVIEW; SCHOOL; UNITED STATES;

ADOLESCENT; BEVERAGES; CHILD; FEDERAL GOVERNMENT; FOOD DISPENSERS, AUTOMATIC; FOOD HABITS; FOOD SERVICES; GOVERNMENT REGULATION; HISTORY, 20TH CENTURY; HUMANS; NUTRITION POLICY; OBESITY; SCHOOLS; STATE GOVERNMENT; UNITED STATES;

EID: 34547673031     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (266)

1. Winston S. Churchill, Speech to the Royal College of Physicians (Mar. 2, 1944), in 7 WINSTON S. CHURCHILL: HIS COMPLETE SPEECHES 1897-1963, at 6895, 6897 (Robert Rhodes James ed., 1974).
2. Ctrs. for Disease Control and Prevention, Dep't of Health and Human Servs., Quickstats: Prevalence of Overweight Among Children and Teenagers, by Age Group and Selected Period - United States, 1963-2002, 54 MORBIDITY & MORTALITY WKLY. REP. 194, 203 (2005).
3. INST. OF MED., CHILDHOOD OBESITY IN THE UNITED STATES: FACTS AND FIGURES 1 (2004), available at http://www.iom.edu/Object.File/Master/22/606/ FINALfactsandfigures2.pdf ("At present, approximately nine million children over 6 years of age are considered obese.").
4. INST. OF MED., PROGRESS IN PREVENTING CHILDHOOD OBESITY: HOW DO WE MEASURE UP? 24 (Jeffrey P. Koplan et al. eds., 2006), available at http://books.nap.edu/openbook.php?record_id=11722&page= R1.
5. CTRS. FOR DISEASE CONTROL AND PREVENTION, DEP'T OF HEALTH AND HUMAN SERVS., NATIONAL DIABETES FACT SHEET 1, available at http://www.cdc.gov/diabetes/pubs/pdf/ ndfs_2003.pdf. Diabetes is striking particularly hard among American Indians, African Americans, and Hispanic/Latino youth populations. Id.
6. K.M. Venkat Narayan et al., Lifetime Risk for Diabetes Mellitus in the United States, 290 JAMA 1884, 1888 (2003).
7. RESEARCH!AMERICA, POLL: OBESITY 10 (2006), available at http://www.researchamerica.org/polldata/2006/endocrinepoll. pdf (counting those who responded that "some" or "a lot" of responsibility rested on the group in question);
8. see also Press Release, Harvard Forums on Health 3 (June 11, 2003), available at http://www.phsi.harvard.edu/health_reform/ harvard_forum_release.pdf ("Two-thirds of Americans believe schools should play a major role in helping to fight the [childhood] obesity problem.").
9. FOOD AND NUTRITION SERV., U.S. DEP'T OF AGRIC., NATIONAL SCHOOL LUNCH PROGRAM 1, 3 (2006), available at http://www.fns.usda.gov/cnd/ lunch/AboutLunch/NSLPFactSheet.pdf. Although the nutritional composition of NSLP meals is improving, advocates urge lower fat and sodium levels and recommend that the commodity foods fit dietary guidelines issued by the U.S. Department of Agriculture. Mary Story et al., The Role of Schools in Obesity Prevention, FUTURE OF CHILDREN, Spring 2006, at 109, 113. The School Breakfast Program, also funded by the federal government but much smaller in size, falls outside the scope of this Article.
10. A California survey found that, among responding school districts, 60 percent of all food sales are àla carte items not covered by federal nutritional guidelines. PUB. HEALTH INST., THE 2003 CALIFORNIA HIGH SCHOOL FAST FOOD SURVEY 2, 5 (2004), available at http://www.phi.org/pdf-library/fastfoodsurvey2003.pdf.
11. "À la carte" refers to individual food items sold outside the reimbursable school meal, generally at mealtime.
12. 7 C.F.R. § 210.11(a)(1). Junk foods - officially, Foods of Minimal Nutritional Value (FMNV) - are currently defined as foods that provide less than 5 percent of the Reference Daily Intake (RDI) for eight specified nutrients per serving. 7 C.F.R. § 210.11(a)(2) (2006). They include soda water, water ices, chewing gum, and certain candies, including gum drops, jelly beans, and candy-coated popcorn. 7 C.F.R. pt. 210 app. B (2006).
13. U.S. DEP'T OF AGRIC., DIETARY GUIDELINES FOR AMERICANS 29-30 (2005), available at http://www.cnpp.usda.gov/Publications/DietaryGuidelines/2005/ 2005DGPolicyDocument.pdf.
14. NSLP guidelines require that school meals provide no more than 30 percent of calories from fat and 10 percent of calories from saturated fat, and provide recommendations for Vitamin A, Vitamin C, iron, calcium, and calories. 7 C.F.R. § 210.10(b) (2006).
15. A Centers for Disease Control and Prevention (CDC) survey found "a disturbing picture of the widespread availability of foods and beverages high in fat, sodium, and added sugars as [à] la carte choices, in vending machines, and in school stores." Howell Wechsler et al., Food Service and Foods and Beverages Available at School: Results from the School Health Policies and Programs Study, 71 J. SCH. HEALTH 313, 322 (2001). "Nutrition, health, and education agencies and professional organizations are increasingly concerned about the widespread availability of foods and beverages sold on school campuses that are not part of federally regulated school meal programs." Id, at 313.
16. Efforts to remove sugary snacks, beverages, and other low nutrition items periodically garner local, state, and federal attention, sparking hot debate. See, e.g., Lee Austin, Pasadena Restricts Candy Snacks, L.A. TIMES, Oct. 4, 1970, at SG_B1 (noting the ban of candy in the Pasadena School District);
17. Frances Cerra, Parents Close Tap on Soda in Westchester Schools Menu, N.Y. TIMES, Feb. 3, 1976, at 66 (highlighting efforts to remove artificial substances from school lunch foods);
18. Laura Shapiro, What's in a Lunch?, NEWSWEEK, Summer 1991, at 66 ("For today's kids, a balanced meal means a Coke in one hand and a Twinkie in the other."); Snack Bar Enforced to Aid Diets, L.A. TIMES, Oct. 13, 1963, at WS1 ("The district is in the midst of a controversial program to . . . ban . . . the sale of candy, soda pop and other confections in the schools.").
19. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-563, SCHOOL MEAL PROGRAMS: COMPETITIVE FOODS ARE WIDELY AVAILABLE AND GENERATE SUBSTANTIAL REVENUES FOR SCHOOLS 3 (2005), available at http://www.gao.gov/new.items/ d05563.pdf.
20. Idem
21. See Story et al., supra note 8, at 115.
22. In the mid-1990s, the items most widely available in school vending machines were, in descending order, imitation juice drinks, carbonated beverages, fruit juice, candy bars, cookies, candy, cheese puffs, and potato chips. Mary Story et al., Availability of Foods in High Schools: Is There a Cause for Concern?, 96 J. AM. DIETETIC ASS'N 123, 124 (1996).
23. Marianne B. Wildey et al., Fat and Sugar Levels Are High in Snacks Purchased from Student Stores in Middle Schools, 100 J. AM. DIETETIC ASS'N 319, 321 (2000).
24. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 16, at 14.
25. Simone A. French et al., Food Environment in Secondary Schools: ÀLa Carte, Vending Machines, and Food Policies and Practices, 93 AM. J. PUB. HEALTH 1161, 1161 (2003).
26. JOY JOHANSON ET AL., CTR. FOR SCI. IN THE PUB. INTEREST & THE PUB. HEALTH ADVOCACY INST., RAW DEAL: SCHOOL BEVERAGE CONTRACTS LESS LUCRATIVE THAN THEY SEEM 4 (2006), available at http://www.cspinet.org/beveragecontracts.pdf.
27. Id. at 2.
28. See Vending Machine Competition with the National School Lunch Program: Hearings Before the S. Select Comm. on Nutrition and Human Needs, 93d Cong. 34 (1973) (statement of Dr. Robert I. Kaplan, Member, Am. Dental Ass'n Council on Dental Health) ("Dental disease is . . . rampant everywhere in the United States. Of the various manifestations of dental disease, tooth decay is by far the most common. . . . [M]ore than $2 billion is . . . being spent annually [1973] to repair the ravages of tooth decay.").
29. Ingrid M. Libman et al., Changing Prevalence of Overweight Children and Adolescents at Onset of Insulin-Treated Diabetes, 26 DIABETES CARE 2871, 2873 (2003).
30. Ingrid M. Libman et al., Evidence for Heterogeneous Pathogenesis of Insulin-Treated Diabetes in Black and White Children, 26 DIABETES CARE 2876, 2876 (2003).
31. David S. Freedman et al., The Relation of Overweight to Cardiovascular Risk Factors Among Children and Adolescents: The Bogalusa Heart Study, 103 PEDIATRICS 1175, 1179 (1999).
32. A Texas Department of Agriculture survey estimated that food service departments lost more in reimbursable meal sales to competitive foods ($60 million) than annual revenue from vending contracts ($54 million) for a net loss. TEX. DEP'T OF AGRIC., SCHOOL DISTRICT VENDING CONTRACT SURVEY (2003), http://www.squaremeals.org/fn/render/channel/items/0, 1249,2348_2515_0_0,00.html (last visited Mar. 18, 2007).
33. See JOHANSON ET AL., supra note 23, at 15.
34. The Institute of Medicine of the National Academies recently gathered information for a report on nutrition standards for foods in school; the report was completed in April 2007. Inst. of Med., Projects: Nutrition Standards for Foods in Schools, http://www.iom.edu/CMS/3788/30181.aspx (last visited Apr. 30, 2007).
35. See infra Part IV.
36. See infra Part IV.
37. Michele Simon & Ellen J. Fried, State School Vending Laws: The Need for a Public Health Approach, 62 FOOD & DRUG L.J. 139, 140-41 (2007).
38. See id. at 140-45;
39. infra Part IV.
40. See Marion Burros, The Junk Food Amendment, WASH. POST, Oct. 27, 1977, at E7 ("The forces that have been trying to eliminate 'junk food' from schools for four years now said they finally won this year because they keep fighting and because of a 'growing interest generally in prevention and health matters.'").
41. MARION NESTLE, FOOD POLITICS 207 (2002);
42. see generally Marion Nestle, Soft Drink "Pouring Rights": Marketing Empty Calories, 115 PUB. HEALTH REP. 308 (2000) (describing the availability in schools of vending machines stocked with soft drinks).
43. See Joanne F. Guthrie & Joan F. Morton, Food Sources of Added Sweeteners in the Diets of Americans, 100 J. AM. DIETETIC ASS'N 43, 51 (2000) ("Americans' intakes of added sweeteners exceed levels typically recommended for a diet that meets current recommendations. Intakes of adolescents are particularly high. The largest source of added sweeteners in American diets is regular soft drinks, and their consumption appears to be increasing.").
44. NESTLE, supra note 37, at 199.
45. French et al., supra note 22, at 1165.
46. David S. Ludwig et al., Relation Between Consumption of Sugar-Sweetened Drinks and Childhood Obesity: A Prospective, Observational Analysis, 357 LANCET 505, 507 (2001).
47. Compare id., with The Coca-Cola Company, Information Regarding Obesity and Soft Drinks, http://www.thecoca-colacompany.com/ourcompany/ al_obesity_and_softdrinks.html (last visited Mar. 19, 2007). Also, Coca-Cola's Health and Wellness Institute turns to science in a positive vein; it "focuses on how beverages and beverage ingredients can improve health and help address significant health and nutrition problems around the world." Beverage Inst., for Health and Wellness, Research Focus, http://www. thebeverageinstitute.org/about_us/research_focus.shtml (last visited Mar. 19, 2007).
48. Patricia M. Anderson & Kristin F. Butcher, Childhood Obesity Trends and Potential Causes, 16 FUTURE OF CHILDREN, Spring 2006, at 19, 31.
49. RUB. HEALTH INST., supra note 9, at 9.
50. Susan B. Templeton et al., Competitive Foods Increase the Intake of Energy and Decrease the Intake of Certain Nutrients by Adolescents Consuming School Lunch, 105 J. AM. DIETETIC ASS'N 215, 219 (2005).
51. Kiyah J. Duffey et al., Differential Associations of Fast Food and Restaurant Food Consumption with 3-y Change in Body Mass Index: The Coronary Artery Risk Development in Young Adults Study, 85 AM. J. CLINICAL NUTRITION 201, 203 (2007).
52. Andrew M. Tershakovec et al., Obesity, School Performance and Behaviour of Black, Urban Elementary School Children, 18 INT'L J. OBESITY & RELATED METABOLIC DISORDERS 323, 323, 325-26 (1994).
53. Ashlesha Datar et al., Childhood Overweight and Academic Performance: National Study of Kindergartners and First-Graders, 12 OBESITY RES. 58, 58, 60-67 (2004).
54. Tershakovec et al., supra note 47, at 323.
55. Martha Y. Kubik et al., The Association of the School Food Environment with Dietary Behaviors of Young Adolescents, 93 AM. J. PUB. HEALTH 1168, 1171 (2003).
56. Karen Weber Cullen & Issa Zakeri, Fruits, Vegetables, Milk, and Sweetened Beverages Consumption and Access to àla Carte/Snack Bar Meals at School, 94 AM. J. PUB. HEALTH 463, 464 (2004).
57. Story et al., supra note 8, at 113.
58. Id. at 111.
59. FOOD RESEARCH & ACTION CTR., STATE OF THE STATES: 2005, at 12-13 (2005), available at http://www.frac.org/State_Of_States/2005/Report.pdf.
60. TEX. DEP'T OF AGRIC., supra note 29.
61. DEMOCRATIC STAFF OF THE SENATE COMM. ON AGRIC., NUTRITION & FORESTRY, FOOD CHOICES AT SCHOOL: RISKS TO CHILD NUTRITION AND HEALTH CALL FOR ACTION 26 (2004), available at http://harkin.senate.gov/ wellness/Food_Choices_at_School.pdf.
62. U.S. GEN. ACCOUNTING OFFICE, GAO-03-569, SCHOOL MEAL PROGRAMS: REVENUE AND EXPENSE INFORMATION FROM SELECTED STATES 5 (2003), available at http://www.gao.gov/new.items/d03569.pdf.
63. Id. at 3.
64. Id. at 22-23, 24.
65. Schools may also contain costs in order to minimize their revenue shortfall. Id. at 20-22, 24.
66. 152 CONG. REC. S3240, 3241 (daily ed. Apr. 6, 2006) (statement of Sen. Harkin) (referring to the Child Nutrition Promotion and School Lunch Protection Act of 2006, Senate Bill 2592, 109th Cong., which would amend the Child Nutrition Act of 1966);
67. see infra note 123 and accompanying text.
68. U.S. GEN. ACCOUNTING OFFICE, GAO/RCED-96-91, SCHOOL LUNCH PROGRAM: CAFETERIA MANAGERS' VIEWS ON FOOD WASTED BY STUDENTS 1 (1996) available at http://www.gao.gov/archive/1996/rc96191.pdf.
69. Approximately 65 percent of high school females and 54 percent of high school males do not consume lunches obtained through the National School Lunch Program. Mary Story & Dianne Neumark-Sztainer, Competitive Foods in Schools: Issues, Trends, and Future Directions, TOPICS IN CLINICAL NUTRITION 37, 37-38 (1999).
70. U.S. DEP'T OF AGRIC., FOODS SOLD IN COMPETITION WITH USDA SCHOOL MEAL PROGRAMS: A REPORT TO CONGRESS 4 (2001), available at http://www.cspinet.org/nutritionpolicy/ Foods_Sold_in_Competition_with_USDA_School_Meal_Programs.pdf.
71. National School Lunch Act of 1946, ch. 281, Pub. L. No. 79-396, 60 Stat. 230 (codified as amended at 42 U.S.C §§ 1751-1769 (2000)).
72. 42 U.S.C. § 1751 (2000).
73. CLAUDIA PROBART ET AL., PROJECT PA, PREVENTING CHILDHOOD OVERWEIGHT AND OBESITY: PARENTS CAN MAKE A DIFFERENCE 6 (2004), available at http://nutrition.psu.edu/ projectpa/pdfs/parentManual/parentsManual.pdf.
74. Associated Press, Obesity Takes Its Toll on the Military: Officials Increasingly Worried About Troops Being Too Fat to Fight, MSNBC.COM, July 5, 2005, http://www.msnbc.msn.com/id/8423112 (last visited Mar. 19, 2007).
75. Vending Machine Competition with the National School Lunch Program: Hearings Before the S. Select Comm. on Nutrition and Human Needs, 93d Cong. 20, 21 (1973) [hereinafter Hekman Statement] (statement of Edward Hekman, Administrator, Food and Nutrition Service).
76. Rose Dosti, Type A School Lunch Programs Striving for Appetite Appeal, L.A. TIMES, Oct. 21, 1971, at J1. Enrollment grew from 24.8 percent of schools from inception in 1946 to 47.1 percent in 1970. Id.
77. See, e.g., Sweets in Sylmar: Students Sell Candy to Help Repay Loans, L.A. TIMES, Nov. 9, 1961, at E2.
78. See, e.g., School Board Delays Purchase of Candies, L.A. TIMES, Sept. 2, 1970, at SG7.
79. See Ellen Stern Harris, Consumer Advocate: Comprehensive State Food Plan, L.A. TIMES, Aug. 21, 1977, at F5 ("PTAs that oppose junk foods can try to get action at the local level . . . .").
80. Congress directed the Secretary "to take a hard look" at foods that competed with the balanced school lunch. H.R. REP. No. 91-81, at 3 (1969), as reprinted in 1970 U.S.C.C.A.N. 3014, 3016. "Many State and local school lunch directors will welcome this Federal interest in the impact on sound nutritional food services of the availability of candy bars, soft drinks and a snack line in the school cafeterias." Id.
81. See Story et al., supra note 8, at 111 ("The program should . . . offer . . . healthful lower-fat foods . . . .").
82. Child Nutrition Act of 1966, Pub. L. No. 89-642, 80 Stat. 885 (codified as amended at 42 U.S.C. §§ 1771-1785 (2000)).
83. Type A lunch requirements included the following: "2 ounces of protein in the form of meat, poultry, cheese, fish, eggs, beans or peas; 1/2 cup fruit and vegetable; 1 serving bread; 1 teaspoon butter and 3/4 cup milk." Rose Dosti, Type A School Lunch Programs Striving for Appetite Appeal, L.A. TIMES, Oct. 21, 1971, at J1. Serving size was adjusted by school level. Id. Commodity-based lunch was another option. Id.
84. A USDA official described Type A school lunch as a '"beautiful picture of what a balanced meal should be.' . . . 'It meets the needs of needy children, it is enormously flexible, it leaves the door wide open for imaginative use of the general meal pattern and it provides one-third of the nutrients needed daily for a growing body.'" Id.
85. National School Lunch Act and Child Nutrition Amendments of 1970, Pub. L. No. 91-248, § 8, 84 Stat. 207, 212-13 (codified as amended at 42 U.S.C. § 1779 (2000)).
86. Hekman Statement, supra note 68, at 22.
87. Child Nutrition Programs: Hearings Before the Subcomm. on Elementary, Secondary, and Vocational Education of the H. Comm. on Education and Labor, 96th Cong. 175 (1979) (statement of Carol Tucker Foreman, assistant secretary for food and consumer services, United States Department of Agriculture).
88. Hekman Statement, supra note 68, at 22.
89. Id.; Vending Machine Competition with the National School Lunch Program: Hearings Before the S. Select Comm. on Nutrition and Human Needs, 93d Cong. 13 (1973) [hereinafter Plagge Statement] (statement of Gretchen Plagge, Food Service Director, Santa Fe, New Mexico). "[Federal regulations] did provide a standard under which we could develop programs." Vending Machine Competition with the National School Lunch Program: Hearings Before the S. Select Comm. on Nutrition and Human Needs, 93d Cong. 18 (1973) (statement of Josephine Martin, administrator, School Food Service Program, Georgia State Department of Education).
90. Some schools chose to defy the regulations and kept soda on the menu and in the lunchroom. LaBarbara Bowman, Stop Soft Drink Sale, County Schools Told, WASH. POST, June 17, 1972, at B2.
91. Plagge Statement, supra note 82, at 13.
92. One United States Congressman charged that "Canteen Corporation, a subsidiary of International Telephone & Telegraph (ITT), is among [the] interests standing to make the biggest gain." Reuss Scores School Vendors, WASH. POST, Feb. 27, 1973, at A2.
93. Canteen Corporation was one of the first vending companies to contract on a large scale with schools. See 75 Years: Canteen Was There from the Beginning, http://www.canteen.com/history.html (last visited Mar. 19, 2007).
94. See Hekman Statement, supra note 68, at 41. A vending machine representative credited complaints to Congressmen from students unhappy with loss of vending machine sales for impetus that led to legislation stripping the USDA of regulatory authority. Id. ("As we understand the facts, the impetus for the amendment arose in Rochester, Minn., among the students at Mayo High School.").
95. Id. at 21-22.
96. The law was known as the "vending machine amendment" because the Senate Select Committee had announced: The purpose of the hearing is to explore the impact of last year's congressional action removing the authority of the Secretary of Agriculture to regulate the use of vending machines in schools. Great concern has been expressed to the committee that the unregulated use of vending machines dispensing snacks and soft drinks, especially during the lunch period, will seriously undermine the nutritional effectiveness of the School Lunch Program. Vending Machine Competition with the National School Lunch Program: Hearings Before the S. Select Comm. on Nutrition and Human Needs, 93d Cong. vi (1973).
97. See School Vending Machines Assailed for 'Junk Food', N.Y. TIMES, Apr. 18, 1973, at 12.
98. Vending Machine Competition with the National School Lunch Program: Hearings Before the S. Select Comm. on Nutrition and Human Needs, 93d Cong. 3 (1973) (statement of Senator Clifford Case). Case's earlier bill to ban the competitive lunchroom sales passed in the Senate; he blamed USDA's lack of support for its demise. Id.
99. See supra note 88.
100. Opponents included the American School Food Service Association, the American Parent Committee, Inc., and the American Dental Association. Vending Machine Competition with the National School Lunch Program: Hearings Before the S. Select Comm. on Nutrition and Human Needs, 93d Cong. 3 (1973) (statement of Senator Clifford Case).
101. See Plagge Statement, supra note 82, at 10 ("The pressures of private vending interests . . . are incredible at the local level.").
102. Vending Machine Competition with the National School Lunch Program: Hearings Before the S. Select Comm. on Nutrition and Human Needs, 93d Cong. 43 (1973) (statement of G. Richard Schrieber, president, National Automatic Merchandising Association).
103. Marion Burros, A Victory for Vending: Can Vigilance Veto Junk Foods?, WASH. POST, June 9, 1977, at F1.
104. Id. The National Confectioners Association and National Candy Wholesales Association often took credit for working "together effectively to prevent anticandy rulings from becoming part of the National School Lunch Act over the years." Id.
105. Jean Mayer & Johanna Dwyer, Flunk Junk Food Out of School Vending Machines, L.A. TIMES, June 30, 1977, at 140 ("As every parent knows, vending machines have proliferated in the last few years and now can be found in school corridors, locker rooms, gyms and even some study halls.").
106. "Junk" Food in School, U.S. NEWS & WORLD REP., Nov. 14, 1977, at 94 (citing junk food bans in Gilroy, California; Bloomington, Indiana; Burlington, Wisconsin; Dallas, Texas; Washington, D.C.; and the states of West Virginia and Massachusetts, as well as junk food restrictions in twenty-three other states).
107. Marlene Cimons, Citizens Begin Drive to Upgrade School Lunch, Breakfast Programs, L.A. TIMES, Mar. 17, 1977, at H25.
108. National School Lunch Act and Child Nutrition Amendments of 1977, Pub. L. No. 95-166, 91 Stat. 1325 (codified as amended at 42 U.S.C. §§1751, 1753-1759a, 1760-1762a, 1763, 1766, 1769, 1771-1776, 1779, 1784, 1786, 1788 (2000)).
109. NESTLE, supra note 37, at 209 (quoting H.R. REP. No. 95-281, at 57 (1977), as reprinted in 1977 U.S.C.C.A.N. 3517, 3573).
110. See Curb Junk Foods in Schools?, U.S. NEWS & WORLD REP., Sept. 24, 1979, at 59 (interview with James E. Mack). Peanuts and other confectionery ingredients were cited for their nutritional benefits; if nutrition was inadequate, industry spokesmen presented other justifications for candy's continued presence in schools, such as preventing children from wandering off campus where "they may tend to turn to some other things instead of candy." Id.
111. Idem.
112. 45 Fed. Reg. 6,758, 6,772 (Jan. 29, 1980) (codified, as amended, at 7 C.F.R. § 220 app. B (2006)). Some local administrators feared the USDA proposal was "weak" and might preempt stronger local bans. Marian Burros, Junking Some Junk Food, WASH. POST, May 18, 1978, at E4.
113. Cmty. Nutrition Inst. v. Bergland, 493 F. Supp. 488 (D.D.C. 1980).
114. Idem.
115. Id. at 495.
116. Idem.
117. Nat'l Soft Drink Ass'n v. Block, 721 F.2d 1348, 1353 (D.C Cir. 1983).
118. Id. at 1352 (quoting Child Nutrition Act of 1966, § 7 Pub. L. No. 92-433, 86 Stat. 724 (1972) (codified as amended at 42 U.S.C. § 1779 (2000)).
119. Idem.
120. Id. at 1353.
121. Id. at 1355 (Wilkey, J., dissenting).
122. See supra text accompanying note 81.
123. NESTLE, supra note 37, at 197-218.
124. Softer Rules for Junk Food, WASH. POST, Mar. 14, 1984, at A25 ("The court's ruling, in a suit filed by soft drink manufactures, said the restriction was not reasonable in the case of soft drinks; yesterday's proposal extends the same logic to other sweets.").
125. After the district court affirmation of the regulations in 1980 and before the appellate court's reversal of time and place rules in 1983, the Food and Nutrition Services Administrator under the Reagan Administration declared that "[t]he department . . . plans to rescind a rule that prohibits the sale of so-called junk food, such as soda and hard candies, in competition with school lunch." Marion Burros, New Federal Policies Alter Food Programs, N.Y. TIMES, Oct. 21, 1981, at C1. The administrator added, the rule "has merit, but . . . is impossible to enforce or administer." Id.
126. Robert Pear, Soda Industry Tries to Avert a School Ban, N.Y. TIMES, May 17, 1994, at A15.
127. Robert Pear, Senator, Promoting Student Nutrition, Battles Coca-Cola, N.Y. TIMES. Apr. 26, 1994, at A20.
128. Better Nutrition and Health for Children Act of 1994, Pub. L. 103-448, § 203, 108 Stat. 4699, 4738 (codified as amended at 42 U.S.C. § 1779 (2000)). The model language concept is similar to the USDA's role of providing guidance to federally mandated wellness committees.
129. S. REP. No. 103-300, at 35 (1994).
130. Child Nutrition and WIC Reauthorization Act of 2004, Pub. L. No. 108-265, § 204, 118 Stat. 729, 780-81 (2004).
131. See Child Nutrition Promotion and School Lunch Protection Act of 2006, S. 2592, 109th Cong. (2006) (aiming "to improve the nutrition and health of school children by updating the definition of [FMNV]"); Child Nutrition Promotion and School Lunch Protection Act of 2006, H.R. 5167, 109th Cong. (2006) (same).
132. S. 2592; HR. 5167.
133. Child Nutrition Promotion and School Lunch Protection Act of 2007, S. 771, 110th Cong. (2007).
134. Table 1 is liberally adapted from NESTLE, supra note 37, at 208-09.
135. See supra notes 105-16 and accompanying text.
136. It is difficult to get a precise measure of how much and where competitive foods are sold. USDA's Food and Nutrition Service found that most competitive foods are sold in the cafeteria at lunchtime and that the same foods, such as fruit drinks, salty snacks, baked goods, "are sold simultaneously by the [à] la carte cafeteria venues and vending machines." OFFICE OF ANALYSIS, NUTRITION & EVALUATION, U.S. DEP'T OF AGRIC. MEASURING COMPETITIVE FOODS IN SCHOOLS 3-4 (2004), available at http://www.fns.usda.gov/oane/MENU/Published/CNP/FILES/CompFoodSum.pdf.
137. See Nat'l Soft Drink Ass'n v. Block, 721 F.2d 1348, 1355 (D.C Qr. 1983) (granting "deference to the expertise" of the Secretary of Agriculture to set competitive food guidelines).
138. Carol Tucker Foreman, Remarks at the University of Arkansas Conference on Legal and Policy Issues Related to Obesity: The Uses of the Law to Address the Epidemic (May 5, 2005) (transcript on file with the Duke Law Journal).
139. National School Lunch Act and Child Nutrition Amendments of 1977, Pub. L. No. 95-166, 91 Stat. 1325 (1977) (codified as amended at 42 U.S.C. §1771 (2000)).
140. H.R. Rep. No. 95-708, at 26 (1977) (Conf. Rep.), as reprinted in 1977 U.S.C.C.A.N. 3555, 3573.
141. Foreman, supra note 130, at 2.
142. Id. at 3.
143. Id. at 6.
144. OFFICE OF ANALYSIS, NUTRITION & EVALUATION, U.S. DEP'T OF AGRIC. FOOD & NUTRITION SERV., SCHOOL NUTRITION DIETARY ASSESSMENT STUDY-II FINAL REPORT 89 (2001), available at http://www.fns.usda.gov/oane/ menu/Published/CNP/FILES/sndaII.pdf.
145. Foreman, supra note 130, at 6.
146. Idem
147. Idem.
148. Idem.
149. Idem.
150. Id. at 8. An Institute of Medicine committee report providing these definitions and setting nutrition standards in schools was released April 2007. Inst of Med., Projects: Nutrition Standards for Foods in Schools, http://www.iom.edu/CMS/3788/30181.aspx (last visited Apr. 30, 2007).
151. For the full text of the new bill, see Child Nutrition Promotion and School Lunch Protection Act of 2007, S. 771, 110th Cong. (2007).
152. See Press Release, Senator Tom Harkin, The Child Nutrition Promotion and School Lunch Protection Act of 2006, available at http://www.harkin.senate.gov/documents/pdf/schoolfood.pdf ("The proposed legislation does not affect school parties and classroom celebrations and also provide [sic] exemptions for school fundraisers.").
153. Child Nutrition Promotion and School Lunch Protection Act of 2007, S. 771, 110th Cong. (2007).
154. See Nat'l Soft Drink Ass'n v. Block, 721 F.2d 1348, 1353 (D.C Cir. 1983) ("An examination of the legislative history leads to the conclusion, albeit inconclusively, that the Congressional intent was to confine the control of junk food sales to the food service areas during the period of actual meals service.").
155. Simon & Fried, supra note 35, at 140-41. For a summary of the various state legislation,
156. see generally Michele Simon, Can Food Companies Be Trusted to Self-Regulate? An Analysis of Corporate Lobbying and Deception to Undermine Children's Health, 39 LOY. L.A. L. REV. 169 (2006).
157. Nanci Hellmich, Health Movement Has School Cafeterias in a Food Fight, USA TODAY, Aug. 22, 2005,
158. at Al; see also Linda Jacobson, Calif. Says 'No' to School Junk-Food Sales, EDUC. WK., Sept. 28, 2005, at 20 (describing restrictions in California legislation on food and drinks sold in schools).
159. TRUST FOR AMERICA'S HEALTH, F AS IN FAT: HOW OBESITY POLICIES ARE FAILING IN AMERICA 32 (2006), available at http://healthyamericans.org/reports/obesity2006/Obesity 2006Report.pdf.
160. MARGO WOOTAN ET AL., CTR. FOR SCI. IN THE PUB. INTEREST, SCHOOL FOODS REPORT CARD 3 (2006), available at http://cspinet.org/ new/pdf/school_foods_report_card.pdf. Such "report cards" that simply catalogue bills fail to tell the entire story. The devil is truly in the details.
161. Simon & Fried, supra note 34, at 139, 150.
162. Idem
163. Id. at 140.
164. MICHELE SIMON, APPETITE FOR PROFIT 230-33 (2006).
165. Id. The governor would later sign a compromise bill.
166. Idem.
167. Idem
168. See infra Part III.D.
169. Examples include California, The Pupil Nutrition, Health, and Achievement Act of 2001, CAL. EDUC. CODE § 49430 (West 2005), and Indiana, IND. CODE §20-26-9 (2005).
170. The twelve states that to date have considered or passed legislation that requires regulations to be set by another regulatory body are Arizona, ARIZ. REV. STAT. ANN. §15-242 (2006),
171. Arkansas, ARK. CODE ANN. §20-7-133 (2005),
172. Kansas, KAN. STAT. ANN. §72-5128 (2006),
173. Kentucky, KY. REV. STAT. ANN. §§158.852, 158.854 (West 2005),
174. Louisiana, LA. REV. STAT. ANN. §17:197 (2007),
175. Maine, ME. REV. STAT. ANN. tit. 20-A §6602 (2006),
176. New Mexico, N.M. Stat. §22-13-13.1 (2005),
177. North Carolina, N.C. GEN. STAT. §115C-264.3 (2006),
178. South Carolina, H. 3346, 2005-2006 Gen. Assem., 116th Sess. (S.C. 2005),
179. Tennessee, TENN. CODE ANN. §49-6-1401 (2006),
180. Vermont, H. 272, 2003-2004 Leg., Reg. Sess. (Vt. 2004), and West Virginia, W. Va. Code Ann. §5-1E-3 (LexisNexis 2006).
181. This model is very similar to the wellness policy approach of the federal government. Examples include Maryland, MD. CODE ANN., EDUC. §7-401 (LexisNexis 2006),
182. Oregon, S. 860, 73rd Leg. Assem., Reg. Sess. (Or. 2005), and Rhode Island, R.I. GEN. LAWS §16-21-28 (2006).
183. Examples include Illinois, ILL. ADMIN. CODE tit. 23, §305 (2006), New Jersey, STATE OF N.J. DEP'T OF AGRIC, MODEL SCHOOL NUTRITION POLICY, http://www.nj.gov/agriculture/divisions/fn/childadult/ school_model.html (last visited Mar. 19, 2007), and Texas, TEX. DEP'T OF AGRIC, TEXAS PUBLIC SCHOOL NUTRITION POLICY (2004), available at http://www.squaremeals.org/vgn/tda/files/2348/ 2538_Texas%20Public%20School%20Nutrition%20Policy.pdf.
184. For example, Texas set regulations first, then later passed a law to grant certain exemptions; Kentucky set minimum standards on beverages in law and directed regulatory body to set remaining regulations. See Simon & Fried, supra note 34, at 141-43. Arkansas legislation appointed an advisory committee to make recommendations to the State Board of Education. Infra notes 169-73 and accompanying text.
185. TEX. DEP'T OF AGRIC, supra note 162, at 1.
186. STATE OF N.J. DEP'T OF AGRIC., supra note 162.
187. For full detail of the California episode, see SIMON, supra note 155, at 224-28.
188. See infra Part IV. A.
189. E-mail from Harold Goldstein, Executive Director, California Center for Public Health Advocacy, to Michele Simon (Dec. 21, 2006, 3:30 PM) (on file with the Duke Law Journal).
190. TRUST FOR AMERICA'S HEALTH, supra note 149, at 6.
191. After losing 110 pounds, Republican Governor Mike Huckabee went public with his experience by promoting his book, MIKE HUCKABEE, QUIT DIGGING YOUR GRAVE WITH A KNIFE AND FORK: A 12-STOP PROGRAM TO END BAD HABITS AND BEGIN A HEALTHY LIFESTYLE (2005).
192. Kevin W. Ryan et al., Arkansas Fights Fat: Translating Research into Policy to Combat Childhood and Adolescent Obesity, 25 HEALTH AFF. 992, 995 (2006).
193. ARK. CODE ANN. §§20-7-133 to -135 (2003).
194. Ryan et al., supra note 171, at 997.
195. Idem.
196. Idem.
197. See Arkansas Gov. Mike Huckabee Wants Proof that Vending Machines Lead to Childhood Obesity Before Enacting Regulations, VENDING MARKET WATCH, June 22, 2004, http://www.amonline.com/article/ archive_article.jsp?siteSection=1&displayMonth=June&displa yYear=2004
198. Ryan et al., supra note 171, at 998.
199. See id.
200. Id at 998-1000.
201. Id at 1001.
202. See Krista Kafer, Vending Machine Bills Defeated in Colorado, Illinois, SCH. REFORM NEWS, July 1, 2006, available at http://www.heartland.org/Article.cfm?artId-19262 (last visited Apr. 6, 2007).
203. See Susan Jones, Groups Blast Proposed Junk Food Ban in Schools, CNSNEWS.COM, Feb. 12, 2004, http://www.cnsnews.com/ ViewNation.asp?Page-%5CNation%5Carchive%5C200 402%5CNAT20040212a.html (last visited Apr. 6, 2007).
204. Dave McKinney & Rosalind Rossi, Gov Renews Fight Against Junk Food, CHI. SUN-TIMES, Nov. 29, 2005, at 16.
205. See Press Release, State of Illinois, Illinois State Board of Education Unveils New Proposed Rules Banning Junk Food from Illinois Elementary and Middle Schools (Dec. 9, 2005), available at www.isbe.state.il.us/ news/2005/dec9_05.pdf/
206. see also Rosalind Rossi, State School Board May Ban Whole Milk, Allow Chips, CHI. SUN-TIMES, Dec. 10, 2005, at 5 (explaining that "unlike current Illinois rules, which specifically crack down on 'candy' and 'potato chips,' the new rules would not ban any specific junk food . . . . [but] [i]nstead, the rules create a definition of what junk food is, based on nutritional content).
207. Kate N. Grossman, Proposed Junk-Food Ban 'Goes too Far': Critics Fear Loss of School Revenue, District Control, CHI. SUN- TIMES, Dec. 15, 2005, at 23.
208. See Maudlyne Ihejirika, Ban on Junk Food Sales at Schools Starts this Fall, CHI. SUN-TIMES, Mar. 17, 2006, at 24.
209. See LEGISLATIVE SUPPORT SERVS., 2005-2006 ILLINOIS BLUE BOOK 1 (2005-06), available at http://www.cyberdriveillinois.com/publications/ illinois_bluebook/2005_2006/legislat ive_branch/legsupport.pdf.
210. Ann Sanner, State Panel Rejects Ban on School Junk Food, CHI. SUN-TIMES, Apr. 12, 2006, at 14.
211. See Kate N. Grossman, State Board Passes New School Junk-Food Ban, CHI. SUN-TIMES, June 23, 2006, at 24.
212. 30 Ill. Reg. 15832 (Sept. 29, 2006).
213. 30 Ill. Reg. 17132 (Oct. 27, 2006).
214. 30 Ill. Reg. 17475 (Nov. 3, 2006).
215. Id. at 17484.
216. The federal government reports that three-quarters of schools have not met the USDA's 30 percent limit for calories from fat in school lunches. See U.S. GEN. ACCOUNTING OFFICE, GAO-03-506, SCHOOL LUNCH PROGRAM: EFFORTS NEEDED TO IMPROVE NUTRITION AND ENCOURAGE HEALTHY EATING 3 (2003) available at http://www.gao.gov/new.items/d03506.pdf.
217. Kim Severson, L.A. Schools To Stop Soda Sales: District Takes Cue from Oakland Ban, S.F. CHRON., Aug. 28, 2002, at A1.
218. See Simon, supra note 147, at 173.
219. For example, the Farm to School Program has connected these school lunch programs with local farms in an effort to improve the nutrition of school lunches. See Farm to School Program, About the National Farm to School Program, http://www.farmtoschool.org/about.htm (last visited Apr. 6, 2007).
220. For these voluntary bills, some states have provided model guidelines for schools to follow. See, e.g., CHILD NUTRITION & WELLNESS, KANSAS STATE DEP'T OF EDUC, KANSAS SCHOOL WELLNESS POLICY MODEL GUIDELINES (2005), available at http://www.kn-eat.org/SNP/SNPDocs/Wellness/ Wellness_Policy_Guidelines_Booklet_Final.pdf;
221. COLORADO DEP'T OF EDUC, NUTRITIOUS SCHOOL VENDING: STEP-BY-STEP GUIDE TO IMPLEMENTING COLORADO SENATE BILL 04-103 (2004), available at http://www.cde.state.co.us/ cdenutritran/download/pdf/VendingGuide.pdf.
222. Sometimes a champion legislator might follow up with a mandatory bill, but not always.
223. See, e.g., S.B. 437, 423d Leg., Reg. Sess. (Md. 2005), available at http://www.mlis.state.md.us/2005rs/bills/sb/sb0473f.pdf; S.B. 860, 73d Leg., Reg. Sess. (Or. 2005).
224. In an email exchange a local district food service director clarified to a local school advocate in Kansas exactly what the state required of districts, given that the Kansas State Department of Education (KSDE) has model guidelines on their website, but the bill language does not require schools to act. Here is the director's reply: "KSDE developed model policy guidelines, but it's up to each individual school district to develop their own policy. . . . Each district has the option to choose the model, which has different levels (Basic, Advanced and Exemplary). It's confusing, I know." E-mail from Cindy Foley, Food Service Director, Salina Kansas Public Schools, to Bette Sue, local school advocate in Kansas, (Dec. 19, 2006, 12:00 CST) (on file with the Duke Law Journal).
225. See Child Nutrition and WIC Reauthorization Act of 2004, Pub. L. No. 108-265, §204, 118 Stat. 729, 780-81 (2004).
226. §204(b)(2)-(3), 118 Stat, at 781.
227. U.S. Dep't of Agric. Food & Nutrition Serv., Examples: Local Wellness Policy, http://www.fns.usda.gov/tn/Healthy/wellnesspolicy_examples.html (last visited Apr. 6, 2007).
228. U.S. Dep't of Agric. Food & Nutrition Serv., The Local Process: How to Create and Implement a Local Wellness Policy, http://www.fns.usda.gov/tn/ Healthy/wellnesspolicy_steps.html (last visited Mar. 16, 2007).
229. See Press Release, Action for Healthy Kids, Study Finds that Half of Local Wellness Policies Fall Short of Federally Mandated Requirements 1 (Aug. 21, 2006), available at http://www.actionforhealthykids.org/filelib/pr/ WP%20preview%20release%208-21-06.pdf.
230. SCH. NUTRITION ASS'N, A FOUNDATION FOR THE FUTURE II: ANALYSIS OF LOCAL WELLNESS POLICIES FROM 140 SCHOOL DISTRICTS IN 49 STATES 8 (2006), available at http://www. schoolnutrition.org/uploadedFiles/SchoolNutrition.org/News_&_Publications/ School _Foodservice_News/New_Folder/Regional%20LWP%20Report.pdf.
231. ILL. STATE BD. OF EDUC., REPORT ON BARRIERS TO IMPLEMENTING SCHOOL WELLNESS POLICIES AND RECOMMENDATIONS TO REDUCE THOSE BARRIERS, S. 162, 95th Gen. Assem., Reg. Sess. (Ill. 2006), at 7-11, available at http://www.isfsa.net/ Wellness%20 Policy%20Report%20Draft%202.pdf.
232. Madhu Krishnamurthy, District Calls on Parents: Lake Zurich Schools Puts Onus on Parents to Keep its Students Healthy, CHI. DAILY HERALD, Oct. 30, 2006, at 1.
233. Eric Bowen, BOE Sours on Candy Ban, DOMINION POST (Morgantown, W.Va.), Nov. 15, 2006, at A1.
234. Idem
235. Idem
236. See Snack Bar Enforced to Aid Diets, supra note 15; Sweets in Sylmar: Students Sell Candy to Help Repay Loans, supra note 70.
237. Robert J. Allan, Most Schools are Scrapping the Sale of Junk Foods, L.A. TIMES, Jan. 29, 1978, at CS1; The Spoon-Feeding of Nonjunk, L.A. TIMES, May 1, 1978, at D4.
238. David G. Savage, L.A. Board Lifts Soft Drink Ban, L.A. TIMES, May 14, 1985, at OC_A8.
239. Los Angeles Schools Lift Junk Food Ban, WASH. POST, May 2, 1990, at A10.
240. Soft Drink Tax for Tooth Care Proposed, L.A. TIMES, Oct. 17, 1975, at B36.
241. Id. Calls for taxes on junk foods continue today. See, e.g., Michael F. Jacobson & Kelly D. Brownell, Small Taxes on Soft Drinks and Snack Foods to Promote Health, 90 AM. J. PUB. HEALTH 854 (2000).
242. Allan, supra note 214.
243. The Spoon-Feeding of Nonjunk, supra note 214.
244. Idem.
245. CTR. FOR FOOD AND JUSTICE, URBAN & ENVTL. POLICY INST., CHALLENGING THE SODA COMPANIES: THE LOS ANGELES UNIFIED SCHOOL DISTRICT SODA BAN 5 (2002), available at http://departments.oxy.edu/uepi/cfj/publications/ Challenging_the_Soda_Companies.pdf.
246. Idem
247. Reuters, L.A. Schools Ban Sodas, CNN.COM, Aug. 27, 2002, http://www.cnn.com/2002/fyi/teachers.ednews/08/27/la.soda.reut/ (last visited Apr. 30, 2007).
248. Id at 11.
249. See supra Part III.
250. See Randolph Kline et al., Beyond Advertising Controls: Influencing Junk-Food Marketing and Consumption with Policy Innovations Developed in Tobacco Control, 39 LOY. L.A. L. REV. 603, 610 n.27 (2006) (describing the "broad powers enjoyed by public health officials" as delegated to local governments).
251. See generally, NESTLE, supra note 37 (positing that the food industry provides sufficient political pressure to influence legislation about nutrition and health).
252. See supra Part III. A.
253. One New Mexico school administrator complained to Congress in 1973 about the influence of Coca-Cola representatives on the state school board decision to allow soda vending machines in New Mexico schools. Plagge Statement, supra note 82, at 11.
254. Lobbyists sent a scientific expert to testify against a soda ban in Philadelphia public schools; that expert failed to reveal her corporate bias. See SIMON, supra note 155, at 225.
255. Charles R. Shipan & Craig Volden, Bottom-Up Federalism: The Diffusion of Antismoking Policies from U.S. Cities to States, 50 AM. J. POL. SCI. 825 (2006).
256. See id. at 825-26 ("Because studies of the interaction between state and local policies so far have been limited . . . we currently have no systematic understanding of whether, when, and how local actions might influence state politics and policy adoptions."). The authors do say that states inspire other state action. See id, at 825 ("Political scientists have . . . found evidence of policies spreading from neighbor to neighbor or across similar states . . . .").
257. Id. at 826.
258. Id at 827-28.
259. Id at 840.
260. Idem.
261. Such groups include the Campaign for a Commercial-Free Childhood, Campaign for a Commercial-Free Childhood Home Page, http://www. commercialexploitation.org (last visited Apr. 6, 2007), and Commercial Alert, Commercial Alert Home Page, http://www.commercial alert.org (last visited Apr. 6, 2007), both of whom have taken stronger stands against marketing to children than other groups such as Action for Healthy Kids, Action for Healthy Kids Home Page, http://www.actionforhealthykids.org (last visited Apr. 6, 2007), and Center for Science in the Public Interest, Center for Science in the Public Interest Home Page, http://www.cspinet.org (last visited Apr. 6, 2007), the later being more concerned about nutrition than commercialism per se.
262. Unfortunately, this proposal will only address those schools that participate in the NSLP, but this is the majority of public schools, so the potential impact is still significant.
263. Connecticut is currently engaged in a unique experiment in which schools are given an incentive of 10 cents extra per meal if they adhere to certain guidelines for competitive foods. See CONN. GEN. STAT. §10-215b (2007).
264. The specific policy approaches to accomplishing this goal are beyond the scope of this Article.
265. For two recent examples, see AM. ACAD. OF PEDIATRICS, CHILDREN, ADOLESCENTS, AND ADVERTISING (2006), available at http://aappolicy. aappublications.org/cgi/reprint/pediat rics; 118/6/2563.pdf;
266. WORLD HEALTH ORG., MARKETING OF FOOD AND NON-ALCOHOLIC BEVERAGES TO CHILDREN (2006), available at http://www.who.int/ dietphysicalactivity/publications/Oslo%20meeting%20layout%2027%20NOVEMBER.pdf.