Competitive Food and Beverages Definition of Sold

This management bulletin provides information from the California Department of Education (CDE) Nutrition Services Division regarding a change in how school food authorities and parent and student organizations must apply the definition of “sold” when selling competitive foods and beverages. This MB supersedes MB NSD-SNP-04-2010: Definition of Sold for Competitive Foods, issued in June 2010.

Code of Federal Regulations—Competitive Food and Beverage Requirements and Definitions

• Competitive Foods: all foods and beverages sold to students on school campus during the school day outside the reimbursable meal programs (Title 7, Code of Federal Regulations [7 CFR], Section 210.11[a][2])

• School Campus: all areas of the property under the jurisdiction of the school that are accessible to students during the school day (7 CFR, Section 210.11[a][4])

• School Day: the period from the midnight before to 30 minutes after the end of the official school day (7 CFR, Section 210.11[a][5])

Only those foods and beverages that comply with state and federal competitive food and beverage requirements are allowed to be sold to a student on the school campus during the school day outside of the federal meal programs.

Per sections 210.11(b) and 220.12 of 7 CFR, state agencies and school food authorities may impose additional restrictions on the sale of and income from competitive foods, provided they are not inconsistent with federal requirements.

In addition to the federal rules, California enacted California Education Code (EC), sections 49430–49431.7, which contain restrictions that apply to all foods and beverages sold to students on a school campus, during the school day, outside of the federal meal programs.

California Education Code—Definition of “Sold”

Assembly Bill 626 (Skinner), effective January 1, 2014, updated the definition of sold relating to competitive foods and beverages. Found under EC, Section 49430(f), the updated definition of sold reads:

‘Sold’ means the exchange of food or beverages for money, coupons, vouchers, or order forms, when any part of the exchange occurs on a school campus.

Implementation of the Definition of “Sold”

In April 2014, the nutrition services division (NSD) received direction from the CDE that the definition of sold, as written in EC, Section 49430(f), must be implemented by public, noncharter school districts and schools as follows:

A competitive food or beverage is sold only when there is an actual exchange of foods and/or beverages.

The following are common examples of exchanges that do not constitute a sale because there is no actual exchange of a food or beverage and therefore, do not need to meet the competitive food and beverage requirements:

• Exchanging money for a coupon or a voucher that will be redeemed for a food or beverage

• Providing an order form to a student

• Returning a completed order form with or without payment

The following are examples of exchanges that do constitute a sale because there is an exchange of a food or beverage and therefore, must meet the competitive food and beverage requirements:

• A student exchanging a food or beverage for money, a coupon, or a voucher on the school campus, during the school day, outside of the federal meal programs

• A student picking up a food or beverage on the school campus—as a direct result of orders taken through an order form on school campus—during the school day, outside of the federal meal programs

If the foods and/or beverages are noncompliant according to EC, sections 49430, 49431, 49431.2, and 49431.5, the student must collect the foods or beverages off the school campus or one-half hour after the end of the school day if on the school campus, or an adult may collect the foods or beverages if on the school campus.

The CDE understands that in some instances it is difficult to ensure that a student does not buy a noncompliant item during the school day while on the school campus, which would constitute a noncompliant sale. For example:

• A student sells candy bars, intended for sale off the school campus, to students on the school campus during the school day

• A student sells items, intended for sale off the school campus, from an order form to students on the school campus during the school day

The CDE strongly recommends that noncompliant items, intended to be sold off of the school campus or after the school day, not be distributed to students on the school campus during the school day.

School food authorities (SFAs) are encouraged to review their competitive food and beverage sale practices to protect the integrity of the federal meal programs, as well as to create a healthy school environment. According to the authority provided in 7 CFR, sections 210.11 and 220.12, the CDE recommends that SFAs impose additional restrictions as necessary in the local school wellness policy. Restrictions may include:

• Only allowing a certain number of compliant food and beverage sales per year, which encourages groups to provide nonfood sales as often as possible

• Only allowing food and beverage sales to occur after the last lunch period to maximize participation in the National School Lunch and School Breakfast Programs

Please forward this management bulletin to all individuals and groups within your school community who will be directly affected by this change or who may benefit from this information.

If you have any questions regarding this management bulletin, please contact the Competitive Foods and Beverages team by email at COMPETITIVEFOODS@cde.ca.gov.