[Federal Register Volume 61, Number 140 (Friday, July 19, 1996)]
[Rules and Regulations]
[Pages 37670-37672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18404]
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DEPARTMENT OF AGRICULTURE
Food and Consumer Service
7 CFR Parts 210 and 225
RIN 0584-AC04
Removal of the ``Cheese Alternate Products'' Specifications From
the National School Lunch Program
AGENCY: Food and Consumer Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule eliminates the specifications governing the
use of ``Cheese Alternate Products'' in the National School Lunch
Program (NSLP). The removal of these specifications should enable the
food industry more freedom to produce cheese substitute products for
use in the NSLP while maintaining program nutrition standards through
reliance on existing Food and Drug Administration rules.
EFFECTIVE DATE: July 19, 1996.
FOR FURTHER INFORMATION CONTACT:
Ms. Marion Hinners, (703) 305-2556.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget.
Regulatory Flexibility Act
This final rule has been reviewed with regard to the requirements
of the Regulatory Flexibility Act (5 U.S.C. 601 through 612). The
Administrator of the Food and Consumer Service has determined that this
final rule will not have a significant economic impact on a substantial
number of small entities. There are currently fewer than ten companies
participating in the Child Nutrition Programs (CNPs) affected by this
regulation. In addition, the removal of this regulation is expected to
reduce the regulatory burden on all companies producing a cheese
alternate type product and allow the use of a wider variety of products
than currently can be used in the CNPs.
Category of Federal Domestic Assistance
The National School Lunch Program and the Summer Food Service
Program for Children are listed in the Catalog of Federal Domestic
Assistance under No. 10.555 and 10.559, respectively, and are subject
to the provisions of Executive Order 12372 which requires
intergovernmental consultation with State and local officials. (7 CFR
part 3015, subpart V and final rule related notice at 48 FR 29112, June
24, 1983.)
Executive Order 12778
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This final rule is intended to have preemptive
effect with respect to any State or local laws, regulations, or
policies which conflict with its provisions or would otherwise impede
its full implementation. This final rule is not intended to have
retroactive effect unless specified in the Effective Date section of
this preamble. Prior to any judicial challenge to the provisions of
this final rule or the application of the provisions, all applicable
administrative procedures must be exhausted.
Information Collection
This final rule contains no new information collection requirements
which are subject to review by the Office of Management and Budget
under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35).
Background
Cheese alternates are used primarily as economical replacements for
natural or processed cheese in the National School Lunch Program
(NSLP). Cheese alternates are a class of products currently required to
be made from conventional ingredients which must meet nutritional and
physical specifications set forth in the NSLP regulations in 7 CFR part
210, Appendix A--Alternate Foods for Meals (appendix A to part 210) in
order to be used as a food component contributing to the NSLP meal
patterns.
The Department published a proposed rule to remove the ``Cheese
Alternate Products'' specifications from the NSLP in the Federal
Register on September 27, 1995 (60 FR 49807). The Department accepted
comments on the proposal until November 13, 1995. One commenter
requested an extension of the comment period. A subsequent Federal
Register publication on November 27, 1995 (60 FR 58252) reopened the
comment period until December 27, 1995.
FCS received a total of 25 comments on the proposed rule. Five
comments were from the state or federal government agencies, five were
from School Food Authorities, six were from private companies and nine
were from trade associations. Eighteen commenters were generally
supportive of FCS proposals: five of those were from private industry
and six from trade organizations. Seven commenters opposed or advocated
major changes to the proposal. Of these seven, two were trade
organizations for dairy interests and one was a private manufacturer.
Commenters who supported the proposal cited positive changes
including that the proposal would: (1) Allow use of alternate protein
sources, (2) provide more flexibility in meeting the Dietary Guidelines
for Americans, (3) reduce food costs, (4) increase the number of
products available, (5) allow for more consistency between the food-
based and nutrient-based menu planning systems used in the NSLP, (6)
increase availability of lower fat and lower saturated fat products,
(7) reduce regulatory burden, (8) eliminate costly, lengthy product
evaluations on the part of industry, (9) increase products for
vegetarians and individuals with dairy product allergies, (10) allow
for reduction in cholesterol and calories and, (11) allow for the
protein digestibility-corrected amino acid score for assessing protein
quality.
The negative comments were varied. One of the government commenters
was concerned about the nutritional impact
[[Page 37671]]
of this change, particularly the reduced zinc adsorption if more
phytate-containing foods (e.g. soy-based cheese substitutes) were used.
FCS does not anticipate that removal of the cheese alternate
specifications will cause use of cheese substitutes to increase to the
extent that the bioavailability of nutrients such as zinc will be
compromised.
A School Food Authority commented that the nutritional quality and
physical characteristics of substitute cheese would be inferior to
natural cheese and that a sodium level should be specified because
cheese substitutes generally have a higher sodium level. Food and Drug
Administration (FDA) labeling regulations (21 CFR 101.3) require
products labeled as ``substitutes'' (e.g., cheese substitutes) to be
``not nutritionally inferior'' to the product for which they substitute
(e.g., cheese). As noted in the proposed rule, FCS is adding ``cheese
substitutes'' to the Food Buying Guide for Child Nutrition Programs
(FBG), Program Aid Number 1331. Schools and FCS use the FBG to
determine what meal components are reimbursable for schools using food
based menu planning. Thus the inclusion in the FBG of cheese
substitutes should help insure that nutritional quality is maintained,
since items labeled as cheese substitutes must be ``not nutritionally
inferior'' to cheese. Moreover, section 9(f) of the National School
Lunch Act (42 U.S.C. 1758(f)) requires that school meals meet the
Dietary Guidelines for Americans (Dietary Guidelines), jointly
published by the Department of Agriculture and the Department of Health
and Human Services. The Dietary Guidelines provide for moderating salt
and sodium intake, and schools are expected to comply. As has always
been true, schools must make the final decision on what to buy based on
good menu planning practices as well as flavor, functional
characteristics, and student acceptance. Schools electing to use a
higher sodium cheese substitute can, and should, reduce the sodium
contributed to the meal from other sources.
Trade association and private industry commenters generally agreed
that FCS should eliminate the current requirement that cheese
alternates must be used in combination with at least 50 percent natural
cheese because there was no nutritional basis to keep the requirement.
One School Food Authority thought this requirement should be retained
to help maintain the nutritional integrity and physical properties of
cheese substitutes. FCS believes that nutritional quality will be
maintained by the FDA standard and that the physical properties will
not vary appreciably from current cheese substitutes, since their
marketplace acceptability is partly a function of these properties.
One private industry commenter was against the proposal because of
the possibility for abuse by manufacturers to supply inferior cheese
products. FCS believes manufacturers will have no increased opportunity
for abuse beyond their opportunity in the current approval system. As
stated above, the nutritional integrity of a cheese substitute is
maintained through compliance with FDA requirements and by inclusion of
FDA labeled cheese substitutes in the FBG. Further, FCS believes that
the functionality of cheese substitutes will also be maintained through
marketplace pressures, because their acceptability is dependent upon
their functional characteristics.
Both trade association and private industry commenters thought that
a protein quality requirement should be retained because FDA
regulations prohibits a substitute from containing a lesser amount of
protein while making no direct provisions for protein quality. Because
of this concern, FCS contacted FDA early in the regulatory process for
clarification of their regulation. In a letter to William E. Ludwig,
the Administrator of FCS, Dr. F. Edward Scarbrough, the Director of the
FDA's Office of Food Labeling, stated that: ``a substitute food must be
able to support the same nutrition claims as the reference food, and
since the protein claim for the reference food must include protein
quality, the substitute food must also account for protein quality.''
Referring to FDA regulations, he went on to say ``the (FDA) believes
that (21 CFR) 101.3(e)(4) maintains its long standing policy that
protein quality is a factor in determining if a substitute food is
nutritionally inferior to a reference food.'' Because FDA considers
protein quality when determining whether a substitute food is
``nutritionally inferior'', FCS believes that protein quality standards
will be maintained when products labeled as ``cheese substitutes'' are
used. Therefore, FCS does not need to define an independent protein
quality requirement for cheese substitutes.
Accordingly, this final rule is being published without changes
from FCS' proposed rulemaking. Upon publication this final rule removes
the section entitled ``Cheese Alternate Products'' Appendix A to part
210--Alternate Foods for Meals. The removal of the cheese alternate
products section from appendix A to part 210 eliminates FCS
specifications for use of cheese alternates as meat alternates. This
change allows the use of cheese substitutes that are consistent with
FDA regulations which allow for fat and calorie reductions. This change
adds to the choice of products available to food service managers while
reducing processors' regulatory burdens. In addition, the removal of
the cheese alternate products specifications is consistent with the
Department's ongoing efforts to promote school meals that meet the
Dietary Guidelines and is consistent with National Performance Review
goals of reducing unnecessary federal regulations. Note that the
removal of this specification also means that the cheese alternate
label statements currently required by the FCS specification will no
longer be required. FCS expects that companies that have currently
approved labels with these statements will discontinue use of these
statements as soon as it is reasonably possible but no longer than one
year from the effective date of this regulation.
List of Subjects
7 CFR Part 210
Children, Commodity School Program, Food Assistance Programs,
Grants programs-social programs, National School Lunch Program,
Nutrition, Reporting and recordkeeping requirements, Surplus
agricultural commodities.
7 CFR Part 225
Food Assistance Programs, Grant programs--Health, Infants and
Children.
For the reasons set forth in the preamble, 7 CFR parts 210 and 225
are amended as follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
1. The authority citation for 7 CFR part 210 continues to read as
follows:
Authority: 42 U.S.C. 1751-1760, 1779.
Sec. 210.10 [Amended]
2. In Sec. 210.10, the first sentence of paragraph (k)(3)(i) is
amended by removing the words ``cheese alternate products''.
Sec. 210.10a [Amended]
3. In Sec. 210.10a, the first sentence of paragraph (d)(2)(i) is
amended by removing the words ``cheese alternate products,''.
Appendix A to Part 210 [Amended]
4. In Appendix A to Part 210--Alternate Foods for Meals, the
section entitled ``Cheese Alternate Products'' is removed.
[[Page 37672]]
PART 225--SUMMER FOOD SERVICE PROGRAM
1. The authority citation for 7 CFR part 225 continues to read as
follows:
Authority: Secs. 9, 13 and 14, National School Lunch Act, as
amended (42 U.S.C. 1758, 1761 and 1762a).
Sec. 225.16 [Amended]
2. In Sec. 225.16, the first sentence of paragraph (f)(3) is
amended by removing the words ``cheese alternate products,''.
Dated: July 12, 1996.
William E. Ludwig,
Administrator, Food and Consumer Service.
[FR Doc. 96-18404 Filed 7-18-96; 8:45 am]
BILLING CODE 3410-30-M
