BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                    SB 1169


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          Date of Hearing:   June 22, 2016


                           ASSEMBLY COMMITTEE ON EDUCATION


                              Patrick O'Donnell, Chair


          SB  
          1169 (McGuire) - As Amended May 31, 2016


          SENATE VOTE:  39-0


          SUBJECT:  Pupil nutrition:  competitive food service and  
          standards


          SUMMARY:  Makes changes to school nutrition requirements, as  
          specified.   Specifically, this bill:  


          1)Eliminates the option for certain food to be sold to students  
            before the beginning of the schoolday by narrowing the period  
            of time in which certain food may be sold to students, from  
            "one-half hour before the start of the schoolday to one-half  
            hour after the schoolday," to "the midnight before to 30  
            minutes after the end of the official schoolday."  
           2) Modifies the food that may be sold to students from outside  
             of the schoolday as follows:
              a)    Strike reference to "full meals, individually sold  
                dairy or whole grain foods, and individually sold portions  
                of nuts, nut butters, seeds, eggs, cheese packaged for  
                individual sale, fruit vegetable that have not been deep  
                fried, and legumes."
              b)    Insert "fruit, vegetable, dairy, protein, or whole  
                grain rich food items; foods with a fruit, vegetable,  











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                dairy, protein, or whole grain item as its first  
                ingredient; or combination foods containing at least  
                one-quarter cup of fruit or vegetable."
           3) Modifies the standards that competitive food must meet as  
             follows:
              a)    For the limit of up to 35% of total calories being  
                from fat:
                i)      Strikes reference to "eggs" and "legumes."
                ii)     Adds reference to "seed butters, part skim  
                  mozzarella cheese, seafood, and a dried fruit and nut  
                  and seed combination."
                iii)    Specifies that "cheese" is to be "reduced-fat  
                  cheese."
              b)    For the limit of not more than 10% of total calories  
                from saturated fat, and the exemption for eggs or cheese  
                packaged for individual sales, provides that less than 10%  
                of total calories shall be from saturated fat, and exempts  
                "reduced-fat cheese or part skim mozzarella cheese  
                packaged for individual sale, nuts, nut butters, seeds,  
                seed butters, or a dried fruit and nut and seed  
                combination."
              c)    For the limit of up to 35% of total weight being  
                composed of sugar, adds "a dried fruit and nut and seed  
                combination to the list of exempt items."
              d)    For calories per individual food item, increases the  
                calories from "175" to "200."


           4) Adds standards for competitive food as follows:
              a)    Contains less than 0.5 grams of trans fat per serving.
              b)    Contains not more than 200 milligrams of sodium per  
                item, package, or container sold to a student.
           5) Modifies the competitive entrées that may be sold to  
             students outside of the schoolday for items sold by the  
             school the day or the day after the entrée is served as part  
             of the school meal, as follows:  
              a)    Modifies the limit on fat from no more than four grams  
                of fat per 100 calories, to "not more than 35% of total  
                calories from fat."











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              b)    Adds "contains less than 0.5 grams of trans fat per  
                serving."
              c)    Adds "is offered in the same or smaller portion sizes  
                as in the federal National School Lunch Program or federal  
                School Breakfast Program."
           6) Creates new requirement that a competitive entrée sold by  
             the school but not the day or the day after the entrée is  
             served as part of the school meal, or is sold by any other  
             entity, meet the following standards:
              a)    Not more than 35% of its total calories shall be from  
                fat.
              b)    Less than 10% of its calories shall be from saturated  
                fat.
              c)    Not more than 35% of its total weight shall be  
                composed of sugar, including naturally occurring and added  
                sugar.
              d)    Contains less than 0.5 grams of trans fat per serving.
              e)    Contains not more than 480 milligrams of sodium.
              f)    Contains not more than 350 calories.
           7) Eliminates the option for competitive snack foods to be sold  
             to students before the beginning of the schoolday by  
             narrowing the period of time in which competitive snack foods  
             may be sold to students, from "one-half hour before the start  
             of the schoolday to one-half hour after the schoolday," to  
             "the midnight before to 30 minutes after the end of the  
             official schoolday."  
           8) Limits the competitive snack foods that may be sold to  
             students during the schoolday to the following:


              a)    Fruit, vegetable, dairy, protein, or whole grain rich  
                food items.
              b)    Food with a fruit, vegetable, dairy, protein, or whole  
                grain item as its first ingredient.
              c)    Combination foods containing at least one-quarter cup  
                of fruit or vegetable.
           9) Reduces the maximum allowable calories per individual  
             competitive snack food from 250 to 200 calories.
           10)Requires competitive snack food sold to students during the  











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             schoolday to contain less than 0.5 grams of trans fat per  
             serving.


           11)Requires competitive snack food sold to students during the  
             schoolday to contain not more than 200 milligrams of sodium  
             per item, package, or container.


           12)Modifies the exemption on not more than 35% of its total  
             calories being from fat, by deleting "eggs" and "legumes,"  
             adding "seed butters, part skim mozzarella cheese packaged  
             for individual sale, seafood, and a dried fruit and nut and  
             seed combination," and specifying that cheese is to be  
             "reduced-fat" cheese.


           13)Modifies the exemption on not more than 10% of its total  
             calories being from saturated fat to "less than 10%," deletes  
             "eggs," adds "part skim mozzarella cheese packaged for  
             individual sale, nuts, nut butters, seeds, seed butters, or a  
             dried fruit and nut and seed combination," and specifies that  
             cheese is to be "reduced-fat" cheese.


           14)Modifies the exemption on not more than 35% of its total  
             weight being composed of sugar by adding "a dried fruit and  
             nut and seed combination."


           15)Eliminates the option for food containing artificial trans  
             fat to be sold to students before the beginning of the  
             schoolday by narrowing the period of time in which food  
             containing artificial trans fat may be sold to students, from  
             "one-half hour before the start of the schoolday to one-half  
             hour after the schoolday," to "the midnight before to 30  
             minutes after the end of the official schoolday."  













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           16)Clarifies that nutrition standards apply to competitive  
             beverages.


           17)Eliminates the option for certain beverages to be sold to  
             students before the beginning of the schoolday by narrowing  
             the period of time in which certain beverages may be sold to  
             students, from "one-half hour before the start of the  
             schoolday to one-half hour after the schoolday," to "the  
             midnight before to 30 minutes after the end of the official  
             schoolday."  


           18)Adds a limit on the serving size of fruit-based drinks,  
             vegetable-based drinks, and milk, as follows:


              a)    Maximum serving size of eight fluid ounces for  
                elementary schools, and 12 fluid ounces for middle  
                schools.
              b)    Maximum serving size of 12 fluid ounces for high  
                schools.
           19)Specifies that drinking water is to be "plain drinking  
             water."
           20)Prohibits drinking water that contains flavor.


           21)Prohibits flavored one-percent fat milk.


           22)Authorizes flavored or unflavored nonfat milk.


           23)Requires middle schools to meet the same standards as those  
             for elementary schools, rather than the standards for high  
             schools.


           24)Prohibits any beverage from containing caffeine with the  











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             exception of trace amounts of naturally occurring caffeine  
             substances.


           25)Authorizes the sale of:


              a)    Other beverages that are labeled to contain less than  
                five calories per eight fluid ounces in a maximum serving  
                size of 20 fluid ounces.
              b)    Other beverages that are labeled to contain no more  
                than 40 calories per eight fluid ounces in a maximum  
                serving size of 12 fluid ounces.
              c)    Specifically prohibits the sale of beverages labeled  
                or commonly referred to as sodas, colas, or soft drinks.  
              d)    Prohibits the sale of any beverages containing  
                caffeine with the exception of trace amounts of naturally  
                occurring caffeine substances.
           26)Deletes reference to the Enhanced Food Based Meal Pattern,  
             Nutrient Standard Meal Planning, Traditional Meal Pattern and  
             the SHAPE Menu Patterns.
           27)Modifies the requirement that every school publicize its  
             school wellness policy as follows: 


              a)    Deletes the requirement that every school post the  
                school district's nutrition and physical activity policies  
                in public view within all school cafeterias or other  
                central eating areas.
              b)    Adds the requirement that every school inform the  
                public about the contents of the school's local school  
                wellness policy.
           28)Modifies the definition of "snack" to exclude "onion rings,  
             nachos, french fries, donuts, cookies, pastries, cinnamon  
             rolls, and candy" and to include "yogurt, cheese, nuts,  
             seeds, fruit, or vegetables."
           29)Deletes the definition of "full meal" to conform to federal  
             regulations.












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           30)Adds the following definitions, to align to federal  
             regulations:


              a)    "Combination foods" means products that contain two or  
                more components representing two or more of the  
                recommended food groups: fruit, vegetable, dairy, protein,  
                or grains.
              b)    "Competitive foods" means all food and beverages other  
                than meals reimbursed under programs authorized by the  
                federal Richard B. Russell National School Lunch Act and  
                the federal Child Nutrition Act available for sale to  
                students on the school campus during the schoolday.
              c)    "School campus" means all areas of the property under  
                the jurisdiction of the school that are accessible to  
                students during the schoolday.
              d)    "Schoolday" means the period from the midnight before  
                to 30 minutes after the end of the official schoolday.
           31)      Deletes obsolete language regarding the prohibition of  
             the sale of certain food (deep dried, par fried, flash fried,  
             trans fat) as being applicable to raw bulk United States  
             Department of Agriculture (USDA) commodity foods but not  
             applicable to other USDA commodity foods until the 2009  
             reauthorization of the USDA National School Lunch Program.


          EXISTING LAW:    


           1) Provides that, from one-half hour before the start of the  
             schoolday to one-half hour after the schoolday, the only food  
             that may be sold to students are full meals, individually  
             sold dairy or whole grain foods, and individually sold  
             portions of nuts, nut butters, seeds, eggs, cheese packaged  
             for individual sale, fruit, vegetables that have not been  
             deep fried, and legumes. (Education Code (EC) 49431)













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           2) Requires the food described above, if sold outside of a USDA  
             meal program, to meet all of the following standards:


              a)    Not more than 35% of its total calories shall be from  
                fat.  Exempt from this standard are individually sold  
                portions of nuts, nut butters, seeds, eggs, cheese  
                packaged for individual sale, fruit, vegetables that have  
                not been deep fried, or legumes.
              b)    Not more than 10% of its total calories shall be from  
                saturated fat.  Exempt from this standards are eggs or  
                cheese packaged for individual sale.
              c)    Not more than 35% of its total weight shall be  
                composed of sugar, including naturally occurring and added  
                sugar.  Exempt from this standard are fruit or vegetables  
                that have not been deep fried.
              d)    Not more than 175 calories per individual food item.   
                (EC 49431)





           3) Requires snacks sold outside of a USDA meal program, from  
             one-half hour before the start of the schoolday to one-half  
             hour after the schoolday, to meet the same standards as is  
             required for competitive food in elementary schools except  
             snacks may have up to 250 calories per individual food item.   
             (EC 49431.2)





           4) Prohibits entrée items sold outside of a USDA meal program,  
             from one-half hour before the start of the schoolday to  











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             one-half hour after the schoolday, from containing more than  
             400 calories per entrée, and no more than four grams of fat  
             per 100 calories.  (EC 49431.2)





           5) Provides that, regardless of the time of day, only the  
             following beverages may be sold:


              a)    Fruit-based drinks that are composed of no less than  
                50% fruit juice and have no added sweetener.
              b)    Vegetable-based drinks that are composed of no less  
                than 50% vegetable juice and have no added sweetener.
              c)    Drinking water with no added sweetener.
              d)    One-percent-fat milk, nonfat milk, soy milk, rice  
                milk, and other similar nondairy milk.  (EC 49431.5)





           6) Provides that, from one-half hour before the start of the  
             schoolday to one-half hour after the schoolday, only the  
             following beverages may be sold:


              a)    Fruit-based drinks that are composed of no less than  
                50% fruit juice and have no added sweetener.
              b)    Vegetable-based drinks that are composed of no less  
                than 50% vegetable juice and have no added sweetener.
              c)    Drinking water with no added sweetener.
              d)    One-percent-fat milk, nonfat milk, soy milk, rice  
                milk, and other similar nondairy milk. 
              e)    An electrolyte replacement beverage that contains no  
                more than 42 grams of added sweetener per 20-ounce  
                serving.  (EC 49431.5)











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           7) Prohibits a school or school district from selling food  
             containing artificial trans fat to K-12 students, from  
             one-half hour before the start of the schoolday to one-half  
             hour after the schoolday.  (EC 49431.7)


           8) Requires every public school to post the school district's  
             nutrition and physical activity policies, in public view  
             within all school cafeterias or other central eating areas.   
             (EC 49432)


          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, the provisions in this bill make changes to local  
          authority and program requirements implemented at the local  
          level, for participating schools, school districts, and county  
          offices of education.  These changes are unlikely to drive  
          significant new cost to the state.  They may result in  
          additional costs to schools, but are conditions of their  
          participation in a program for which they receive federal  
          funding.





          COMMENTS:  Federal Healthy, Hunger-Free Kids Act of 2010. This  
          bill comes on the heels of a major overhaul of federal nutrition  
          standards for the National School Lunch Program (NSLP). The  
          federal Healthy, Hunger-Free Kids Act of 2010, which was signed  
          into law by President Obama in December of 2010, makes the first  
          significant changes to the nutritional regulations over the NSLP  
          since 1995. In January 2012, the United States Department of  
          Agriculture released the Final Rule Nutrition Standards for the  











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          National School Lunch and School Breakfast Programs in  
          accordance with the new federal legislation. As part of the new  
          regulations, schools are required to serve food options that  
          align with meal patterns specifying acceptable quantities of  
          different types of food. 


          According to the author, "In recent years, the USDA has made  
          various changes to the Healthy, Hunger-Free Kids Act.  Most  
          recently, there have been changes to the laws and regulations  
          that govern competitive foods and beverages.  In order to ensure  
          all schools are complying with the most recent changes to the  
          Healthy, Hunger-Free Kids Act, state law must be amended.  This  
          bill makes changes to current state law in order to comply with  
          the new federal laws and regulations that govern competitive  
          foods and beverages under the Health, Hunger-Free Kids Act of  
          2010.  This proposal makes the following changes:
             1.   Expands the variety of healthy items that can be sold in  
               schools.  These items must meet all current nutritional  
               standards. For example, items may include, nuts, beef  
               jerky, edamame (soybeans in the pod), dried soybeans,  
               dried/roasted chickpeas, hummus, and dried fruit.
             2.   Caps the calorie limit at 200 for snacks that can be  
               sold during the school day.  
             3.   Prohibits caffeine in all beverages served and sold  
               during the school day.
             4.   Clarifies and expands what no- or low-calorie beverages  
               may be sold in high schools.  For example, beverages may  
               include, sparkling water (flavored or unflavored), fruit  
               water, electrolyte replacement drinks, and teas.  Sodas and  
               diet sodas will continue to be prohibited.
             5.   Allows a school and district flexibility to determine  
               the best way(s) to communicate their local school wellness  
               policy to their community."



          Electrolyte Replacement Beverages (ERBs) and "other beverages"  
          sold in High School.  This bill deletes the authorization for  











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          ERBs to be sold to high school students and instead specifies  
          that "other beverages" with less than 5 calories per 8 ounces in  
          a maximum serving size of 20 ounces and "other beverages" with  
          less than 40 calories per 8 ounces in a maximum serving size of  
          12 ounces may be sold. The committee should consider what types  
          of beverages would be allowed under these provisions. The  
          California Department of Education contends that the term "other  
          beverages" includes ERBs, as well as other types of beverages  
          such as flavored sparkling water, diet vitamin water, diet  
          flavored water, and diet tea.  

          The committee should consider whether: 
          1)the previous authorization for ERB's should be expanded to  
            include ANY type of beverage that falls under the calorie  
            restrictions, so long as that beverage does not contain  
            caffeine or is qualified as a soda; or, 
          2)the current authorization for ERB's alone should be changed to  
            include the new lower calorie restrictions, which conforms to  
            federal regulations. 

          If the intent is to open up more options for healthy low calorie  
          beverages to be sold in high schools, the committee should  
          consider amending the bill to authorize beverages such as  
          sparkling water, instead of authorizing "other beverages" that  
          could include unhealthy options. 

          ERBs are designed to replace fluids after exercise and generally  
          contain sodium and potassium to improve fluid absorption in the  
          body.  According to a USDA report on Carbohydrate/Electrolyte  
          Replacement Beverages, "carbohydrate/electrolyte beverages  
          provide carbohydrate (glucose, sucrose, glucose polymers)  
          replacement to sustain energy output, and electrolytes (sodium,  
          potassium) to replace those lost in sweat."  The USDA report  
          states that ERBs may be useful for individuals who have lost  
          large quantities of fluids through sweating on a daily basis,  
          and those who perform continuous exercise for more than 60  
          minutes, however, the report concludes that there is no need to  
          substitute ERBs for water as a primary form of fluid  
          replacement.  The committee should consider whether high school  











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          students receive enough daily exercise (and subsequent loss of  
          fluids) to warrant the sale of ERBs to students during school  
          hours.  

          According to the University of California Center for Weight and  
          Health, "Research shows that water is the best drink for  
          children during the school day and at most sports practices.   
          Water doesn't contain unnecessary calories or artificial  
          sweeteners and children don't need the extra electrolytes and  
          minerals that sports drinks may provide.  Children get plenty of  
          electrolytes from the food they eat, so during the school day  
          and at most practices, sports drinks don't provide any extra  
          benefit over water." The Center further finds that, "many sports  
          drinks contain high fructose corn syrup (also the main sweetener  
          in soda), which may be linked to increased rates of obesity.   
          While manufacturers are developing products with lower sugar  
          content, they are replacing the sugar with artificial sweeteners  
          such as Sucralose that have no nutritional value.  Studies  
          suggest that artificial sweeteners may increase people's taste  
          for sweets and even lead people to eat more after exercising."  
                                                               
          What about Vitamin Water?  Some argue that this bill authorizes  
          vitamin water drinks to be authorized to be sold in high schools  
          during the schoolday.  Many vitamin water drinks, however,  
          contain sugar sweetener and/or artificial sweetener, similar to  
          regular and diet soda.  Vitamin water drinks that contain sugar  
          sweetener could contain as many or more calories than ERBs or  
          soda.  Some argue that vitamin water drinks that contain  
          artificial sweetener are equivalent to diet soda and should not  
          be sold in schools.  In fact, vitamin water drinks that contain  
          artificial sweetener are sometimes referred to as diet water,  
          and one brand is named "Skinny Water."  

          The committee should consider whether it is appropriate for  
          schools to sell vitamin water drinks to students of any age.  

          Similarly, there are ERBs on the market that do not contain any  
          added sweetener.  One such example of these products is  
          "Smartwater."  These products contain water with added  











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          electrolytes but do not contain sweeteners.  These products may  
          also fall under the current definition of "drinking water with  
          no added sweetener" because they do not meet the definition of  
          an ERB as outlined in regulations which establishes minimum  
          levels of sodium and potassium.  According to the "Smartwater"  
          label, it contains electrolytes, but the label does not list the  
          amount of electrolytes contained in the bottle.  Because the  
          label does not list the amount of these ingredients it is  
          unclear whether the amount is appropriate for children.  The  
          committee should consider whether it is appropriate to sell  
          unsweetened electrolyte water to students during the school day,  
          particularly to elementary school students.  The committee  
          should also consider whether to specifically authorize or  
          prohibit unsweetened electrolyte water to be sold in schools  
          during the schoolday, and to what age students.

          Vitamin Toxicity.  The committee should consider whether there  
          could be a risk of vitamin toxicity for children who drink more  
          than one vitamin water drink per day, and for children who drink  
          vitamin water drinks in addition to taking a daily multivitamin.  
           It is unclear whether drinking one or more bottles of vitamin  
          water drinks alone, or in addition to a multivitamin, could put  
          students at risk for ingesting the upper limits of these  
          vitamins, which could cause toxicity concerns.  

          The Tolerable Upper Intake Level (UL) is the maximum level of  
          daily nutrient intake that is likely to pose no risk of adverse  
          effects, based on the Dietary Reference Index (DRI) established  
          by the National Academy of Sciences and the Institute of  
          Medicine.  According to the USDA, as intake increases above the  
          UL, the potential risk of adverse effects may increase.  

          For purposes of illustration, the established UL for Niacin  
          (Vitamin B3) for children ages 9-13 is 20 milligrams (mg) per  
          day.  According to the listed amount of Niacin on a bottle of  
          "vitaminwater" brand beverage, a child age 9-13 who drinks two  
          bottles of "vitaminwater" brand beverage will reach the UL for  













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          Niacin.<1>  As another example, if a child age 9-13 is taking a  
          daily multivitamin such as "Flintstones Complete" which contains  
          15mg of Niacin,<2> that child would reach the UL for Niacin  
          after drinking only half a bottle of "vitaminwater" brand  
          beverage.  The committee should consider whether it is  
          appropriate to sell vitamin water drinks to children in school  
          at any age.  



          Committee Amendments: 


          1)Amend the bill to delete the authorization for "other  
            beverages" and instead reinstate the authorization for ERB's  
            with the new lower calorie restrictions.
          2)Add an authorization for plain and flavored sparkling water  
            with no artificial sweeteners, that contain fewer than five  
            calories per eight fluid ounces in a maximum serving size of  
            20 fluid ounces or 40 calories per eight fluid ounces in a  
            maximum serving size of 12 fluid ounces.





          REGISTERED SUPPORT / OPPOSITION:




          Support

          ---------------------------
          <1>


           Source: University of California Center for Weight and Health.
          <2> Source: Flintstones Website.   
          http://flintstonesvitamins.com/complete/index.html










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          American Heart Association


          American Stroke Association


          California Food Policy Advocates


          State Superintendent of Public Instruction Tom Torlakson




          Opposition


          None on file.




          Analysis Prepared by:Chelsea Kelley / ED. / (916)  
          319-2087