Our kids are too obese. Surveys show that almost half of our young children are just too fat.

Nationwide, 67 percent of middle school students who eat school lunches are medically overweight or obese, less likely to participate in school activities or sports and, most significantly, remain fat when they grow older.

Congress long has encouraged proper school nutrition. As early as 1946 it enacted the National School Lunch Act “to safeguard the health and well-being of (schoolchildren)” by subsidizing school lunches.

In 1966, the Child Nutrition Act subsidized school breakfasts “in recognition of the demonstrated relationship between food and good nutrition and the capacity of children to develop and learn.”

In 2010, the hunger-Free Kids Act required the USDA to promulgate revised nutritional standards for school lunches and breakfasts in accordance with standards prescribed by the National Academy of Science Food and Nutrition Board study that daily sodium intake for schoolchildren “clearly was excessive” and daily consumption of whole grains was “extremely low.”

After public notice and over 130,000 public comments, the USDA in 2012 issued new, updated nutritional standards for school meals, prescribing interim and final limits for sodium, regulating salt and sugar content, and most importantly requiring that all grain items be “whole-grain rich,” meaning that any grain item contain at least 50 percent whole grains and the remaining grain content coming from enriched flour.

In 2018, 30 million children nationwide consumed 5 billion school lunches and 14 million ate school breakfasts under these programs, which are enormously important, especially for children in low-income families and for students of color who disproportionately participate in school meals.

Studies show that the health of schoolkids has increased dramatically as the result of these standards, with commensurate improvement in school performance and participation in school activities. In 2017, the Robert Wood Johnson Foundation concluded that they “are paying off.” For example, one study showed that overall nutritional quality of meals served in a Washington school district increased by 29 percent; 70 percent of elementary and middle school leaders reported students liked the updated standards.

Citing the Rudd Center for Food Policy, 12 middle schools in an urban low-income school district found that more students chose fruit, ate more vegetables. A study by the University of Vermont and Hunger Free Vermont in 2017-18, yet to be formally published, has shown that free meals to all students, regardless of financial need, “increase access to food by students who need it most while reducing financial stigma and stress on school communities and families.”

Importantly, schools have noted an increase in student readiness to learn and ability by schools to purchase more local food, a decrease in visible income disparities among students, improved social climate and visible relief from financial stress among families and school administrators as well as further improvements in learning, test scores, social climate in our schools, and family engagement.

Vermont, of course, is an enthusiastic benefactor. In 2018, 46,000 Vermont children participated in the school lunch program, 25,000 in the breakfast program, consuming over 11 million school meals.

But implementation of the whole-grain-rich requirement was initially challenging. The food industry was not prepared to supply a wide variety of high-quality items meeting those standards. Students were accustomed to white flour products. Whole-grain pasta, for instance, required new preparation methods, which took additional training.

But over the years, the Vermont Agency of Education has found that there has been much compliance. “The food industry has developed a wide variety of quality whole-grain-rich products. Local Vermont companies have been especially innovative and numerous Vermont bakeries have produced bread, bagel and pizza items that meet the requirements.” There are new cookbooks for muffins, pancakes, pizza dough, cornbread and whole-grain salads, and in the summer there are numerous training programs.

Sadly, without public notice and opportunity to comment, the USDA in late 2018 dismantled many of these standards.

It cut in half the whole-grains requirement, meaning that schools now may serve more white bread, biscuits, tortillas and white pasta with only half of the grains used in these menu products. Schools may now offer 1 percent instead of fat-free strawberry and chocolate milk. Finally, the USDA is braking targets aimed at gradually reducing sodium content.

These changes are justified, USDA claims, because kids don’t like whole-grain foods and therefore “experience difficulty in finding the full range of products they need.“

Alas, schoolkids in the South won’t eat grits, which they love, because “the whole-grain variety has little black flakes in it, and the kids won’t eat it.” As to milk, there must be more “options for students who select milk.” Chocolate and strawberry flavors will fit the bill.

Finally, Secretary Perdue says, kids are wasting or throwing away mandated healthy foods. “If kids aren’t eating the food, and it’s ending up in the trash, they aren’t getting any nutrition, thus undermining the intent of the program. “

Admittedly, there is a lot of waste. Indeed, in 2015 UVM researchers using digital photographs found that “while children placed more fruits and vegetables on their trays, they consumed less and threw more away. But USDA cites no empirical proof that those participating in the school meal programs waste more than children on their own.

On the other hand, a 2014 study by the Harvard School of Public Health found the opposite — kids ate more fruits and vegetables after the new standards were promulgated. One expert, the director of the Rudd Center for Food Policy and Obesity at UConn, says that more food ending up in the trash “is not supported by the research. There have been studies, ours included, that (show) food plate waste has not increased. Admittedly, taste volume goes up when fruits and vegetables are added. But consumption of this important food group has increased as well.”

Moreover, critics and supporters agree that schools can take steps to make fruits and vegetables more enticing, such as slicing then rather than serving them whole, and offering them with dips.

Congressional legislation demands that nutrition standards for school meals be “consistent with the goals of the latest dietary guidelines” based on the Food and Nutrition Board’s recommendation. The USDA has not explained how these new changes comply with these mandates. Critics say they do not.

The new rule has sparked vigorous opposition from nutrition experts. Commenting on the changes when they first were proposed, the Robert Wood Johnson Foundation noted that the anticipated several years’ delay in reducing sodium content “only hurts children’s health. Nine out of ten children consume too much sodium, increasing their risk of high blood pressure, heart disease and stroke. Eating more whole grains is associated with reduced risk of heart disease, stroke and diabetes, which are a healthy source of fiber… (Nor) is allowing flavored low-fat milk good; they likely will push school meals over past overall calorie limits. “At the very least there should be a calorie cap of no more than 130 calories in an 8-ounce drink.

The policy director at the Center for Science in the Public Interest has said: “The ‘flexibilities’ the administration is offering (schools) are both unnecessary and undermining,” in effect risking the health of millions of kids by giving them less nutritious food.

Admittedly, the new rule permits states to exempt themselves, and Vermont’s Agency for Education has done so, particularly with respect to the relaxed whole-grain rule.

The agency stresses that even the USDA acknowledges that the stricter whole-grain-rich requirement provides a more nutritious meal for students, and implementation of this requirement has been successful in this state. For this reason, the agency “does not see a good reason to reduce the nutritional uplift of the meals served in our state.” Implementing the new USDA whole-grain rule would pose difficulty for state staff in conducting the administrative reviews required by USDA. Identifying whether enough whole-grain-rich items are being served will be more complicated. And “changing the requirements now will add additional confusion for program operators who have adapted to the requirements over the last five years.”

Six states (New York, California, Illinois, Minnesota, New Mexico, Vermont) and the District of Columbia, asserting their quasi-sovereign interest to protect the health of their children as well as “their proprietary interest in health care costs they pay for some of these children,” have sued the USDA in federal court in New York to nullify the new rules.

They charge that the weakened 2018 standards will have adverse health conditions for children, in violation of the Administrative Procedure Act. They were adopted without public notice or opportunity for interested persons to participate in the rule-making. Nor are they in accordance with the School Lunch Act and Child Nutrition Act, which mandated that school meals meet nutritional requirements prescribed on the basis of “tested nutritional research” or consistent “with the goals of the most recent Dietary Guidelines for Americans” based on the FNB’s recommendations; for all these reasons they are “arbitrary and capricious (or) an abuse of discretion” in violation of the APA.

The litigation is no slam-dunk. The USDA on June 7 notified the court that it will move to dismiss the complaint because it fails to state a cause of action, or, alternatively, because the states have no “standing” — that is, a justiciable interest in challenging the rules, especially because they can exempt themselves therefrom, notwithstanding, as the states allege in rebuttal, to implement them they will incur additional expenditure of time and money. These are wonderful issues for lawyers , but will take months to resolve even on the district court level, not to mention the appeals that undoubtedly will follow.

For all these reasons, we congratulate the Vermont Attorney General for joining in this litigation and the Agency of Education for its firm decision to ignore the new rules and continue to adhere to the former administration’s nutritional guidelines that have proven so beneficial.

Albert G. Besser of Morrisville was a practicing lawyer for 50 years and was in the Office of Strategic Services during World War II.

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