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SCHOOL HEALTH POLICY
Carrots and Sticks: Compliance Provisions
in State Competitive Food Laws—Examples
for State and Local Implementation of the
Updated USDA Standards
CAMILLE K. GOURDET, MA, JDa JAMIE F. CHRIQUI, PhD, MHSb ELIZABETH PIEKARZ, JDc QUANG DANG, JDd FRANK J. CHALOUPKA, PhDe
ABSTRACT
BACKGROUND: Competitive foods remain prevalent in schools even though the majority of states’ laws have addressed this
for several years. Whereas updated federal standards take effect during school year 2014-2015, aspects of competitive food
regulation will remain relegated to the states and districts and concerns exist about compliance with the federal standards. This
study examined compliance provisions codiﬁed into state law that focused on incentives, monetary penalties, or contracts which
could provide examples for other jurisdictions.
METHODS: Codiﬁed statutory and administrative laws effective as of January 2013 for all 50 states and the District of Columbia
were compiled using Boolean searches in Lexis-Nexis and Westlaw. All laws were analyzed by 2 study authors to determine the
presence and components of relevant provisions.
RESULTS: Eighteen states’ laws contained compliance mechanisms including ﬁnancial and/or programmatic incentives (5
states), contract provisions (11 states), and monetary penalties for noncompliance (7 states). Five states’ laws contained a
combination of approaches.
CONCLUSIONS: Compliance measures help to strengthen competitive food laws by providing state agencies with an
enforcement mechanism. Enforcing such provisions will help to create healthier school environments. This study will provide
useful insight for governments at all levels as they implement competitive food laws.
Keywords: competitive foods; state laws; nutrition standards; contracts; monetary penalties; incentives.
Citation: Gourdet CK, Chriqui JF, Piekarz E, Dang Q, Chaloupka FJ. Carrots and sticks: compliance provisions in state
competitive food laws—examples for state and local implementation of the updated USDA standards. J Sch Health. 2014; 84:
466-471.
Received on July 15, 2013
Accepted on November 9, 2013
C
hildhood obesity rates in the United States
have more than tripled over the last 30 years
although recent data provide signs of progress in
some jurisdictions.1,2 Because children consume
approximately one third of their daily food intake
at school,3 schools are uniquely positioned to shape
children’s eating habits. Students are more likely to
purchase foods and/or beverages high in calories,
fats, and/or sugar, when available.4-6 Additionally,
increased consumption of calorie-dense competitive
foods and beverages (ie, foods and beverages sold
outside of school meal programs) is associated with
decreased fruit and vegetable consumption.3,7 The
literature on the relationship between competitive
food laws and student body mass index (BMI) is
emerging,8 with some studies finding that policies
allowing energy-dense competitive foods and beverages in schools are associated with increased BMI;9,10
conversely, policies that restrict or prohibit such items
are associated with lower rates of overweight or
obesity, or lower rates of increase in BMI.11-14
A patchwork of federal, state and school district laws
and policies govern competitive foods and beverages,
although the predominant laws are presently state
level.15-18 On June 28, 2013, the US Department
of Agriculture (USDA) issued an interim final rule
a Research Specialist, ([email protected]), Institute for Health Research and Policy, University of Illinois at Chicago, 1747 W. Roosevelt Road, M/C 275, Chicago, IL 60608.
bSenior Research Scientist, ([email protected]), Institute for Health Research and Policy, University of Illinois at Chicago, 1747 W. Roosevelt Road, M/C 275, Chicago, IL 60608.
c Visiting Research Specialist, ([email protected]), Institute for Health Research and Policy, University of Illinois at Chicago, 1747 W. Roosevelt Road, M/C 275, Chicago, IL 60608.
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© 2014, American School Health Association
to update federal standards governing the nutritional
content of snack foods and beverages sold in schools
through a` la carte lines in the cafeteria, vending
machines, and school stores.19 Full implementation
is expected during school year 2014-2015. The rule
provides states and districts with the discretion to
adopt and/or implement stronger standards than the
federal rule which is essentially silent on fundraisers,
´
classroom parties, and a` la carte entrees
and, in
some cases, allows for weaker standards than those
already in place in some jurisdictions such as standards
relating to calorie limits per snack portion, sugar
and sodium content of snacks, and certain beverage
restrictions.16,17,20
One major concern with USDA’s proposed rule is
related to record-keeping and challenges with ensuring
local compliance.19 Some states have been at the
forefront of addressing compliance at the district
and school levels by incorporating such provisions
into state law. These provisions typically are in the
form of financial and/or award recognition incentive
programs, contract compliance provisions, and/or
monetary penalties for noncompliance.
Two studies (both in Connecticut) have examined
the impact of a statutorily based monetary incentive
program on facilitating compliance with the state’s
voluntary competitive food nutrition standards and
the concomitant impact on National School Lunch
participation rates, respectively.21,22 An additional
study examined implementation of the congressionally
mandated school district wellness policies throughout
Pennsylvania and noted that the state provided a
financial incentive to districts that voluntarily adopted
the state’s competitive food nutrition standards (but
did not specifically study the impact of the incentive
program on compliance).23 Also, the USDA offers
a voluntary certification program, the Healthier US
School Challenge (HUSSC), which recognizes schools
that have created healthier school environments,
including compliance with strong competitive food
standards, with monetary incentives based on the
level of recognition achieved (ie, bronze, silver, gold,
gold with distinction).24 As of September 18, 2013,
approximately 6560 schools nationwide were HUSSC
certified.24 HUSSC certification is valid for a 4-year
period (with renewal possible) and requires school
compliance throughout that period.25
Whereas we were unable to find examples of other
studies focused on enforcement of state competitive
food laws, lessons can be learned from other public
health policies focused on the school environment.
For example, 1 study found that a school’s consistent
and visible enforcement of its tobacco prevention
policy reduced teen smoking,26 while another concluded that a student was less likely to smoke if
she or he attended a school that strongly enforced
its antismoking policy.27 Some studies suggest that
the content of the school policy is less relevant
to effectiveness than its consistent enforcement.28
Given that enforcement and compliance provisions
are among the weakest provisions in school district
wellness policies (which often incorporate competitive
food standards),16 identifying strategies to facilitate
compliance and enforcement are critical.
This article evaluates state approaches to increasing
compliance with competitive food laws. Specifically,
we examined the prevalence of state codified laws
containing language that (1) incentivizes compliance
with state competitive food standards (voluntary or
mandatory), (2) requires competitive food contracts
to comply with state nutrition standards, and/or (3)
stipulates monetary penalties for failure to comply
with state standards.
METHODS
Boolean term and connector searches were conducted in all state statute, administrative code, and
chaptered session law (enacted bills that have not
been codified into the statutes) databases in LexisNexis and Westlaw, for all 50 states and the District of
Columbia (D.C.) (hereafter referred to collectively as
‘‘states’’). Statutory laws reflect the compilation of bills
enacted by state legislatures (including amendments
and repeals); while administrative codes contain the
compiled regulations and rules promulgated by state
Departments or Boards of Education.
Searches were conducted in 2 phases. Phase 1
sought to determine states with competitive food laws.
These results were verified against existing secondary
sources.18,29,30 Phase 2 searches were performed
in states with competitive food laws to determine
which states’ laws also included incentive, contract
compliance, or penalty provisions relative to their
d
Senior Staff Attorney and ProgramDirector, ([email protected]), National Policy & Legal Analysis Network to Prevent Childhood Obesity, a project of ChangeLab Solutions, 2201
Broadway, Suite 502, Oakland, CA 94612.
e
Distinguished Professor and Director, ([email protected]), Health Policy Center, Institute for Health Research and Policy, University of Illinois at Chicago, 1747 W. Roosevelt Road, M/C 275,
Chicago, IL 60608.
Address correspondence to: Jamie F. Chriqui, Senior Research Scientist, ([email protected]), Institute for Health Research and Policy, University of Illinois at Chicago, 1747 W.
Roosevelt Road, M/C 275, Chicago, IL 60608.
Funding for this study was provided by the Robert Wood Johnson Foundation-supported Bridging the Gap Program at the University of Illinois at Chicago. Opinions presented
herein are solely those of the authors and do not, necessarily, reﬂect the opinions or views of the Robert Wood Johnson Foundation or the authors’ employers. An earlier version of
this manuscript was presented at the 2012 Public Health Law Research Program annual meeting in New Orleans, Louisiana.
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© 2014, American School Health Association • 467
Table 1. States That Incentivize Schools to Comply With Their Competitive Food Laws, as of January 2013
State
Type of Incentive
Description of Program
Citations
Colorado
Financial
C.R.S. § 22-5-121
Connecticut
Financial
Minnesota
Voluntary certiﬁcation
Mississippi
Financial and voluntary
certiﬁcation
Tennessee
Financial
Grants provided to procure and distribute to schools only food and
beverages that satisfy nutritional standards
Schools that certify their compliance with the state’s competitive food laws
are paid 10 cents for every lunch that has been served
Schools that meet the Institute of Medicine’s guidelines for food and
beverages receive a ‘‘Healthy Kids Award’’ indicator on school report card
MS Ofﬁce of Healthy Schools provides a ﬁnancial reward between $2000
and $8000 to schools receiving recognition through the USDA’s
HealthierUS School Challenge
State matching funds are distributed only to local education agencies in
compliance with the state’s competitive food laws
compliance with the state law. Searches were initially
completed by November 2012 with a final review
conducted in November 2013. The compiled laws
reflect laws effective as of January 1, 2013.
All laws were independently reviewed by 2 study
authors (C.K.G. and E.P.) and a consensus review
was conducted to determine the states with relevant
provisions. Areas of ambiguity were discussed and
resolved with one of the project investigators and
study coauthor (J.F.C.).
RESULTS
Eighteen states’ laws address compliance including
1 or more of the following: financial and/or programmatic incentives (5 states), contract provisions (11
states), and monetary penalties for noncompliance (7
states). Five states’ laws contained a combination of
approaches.
Incentive Schemes
Table 1 identifies the 5 states that promote
compliance through incentive schemes. Colorado,
Connecticut, Mississippi, and Tennessee each offer
designated money to compliant schools, in the form of
grants (Colorado), a 10-cent reimbursement per lunch
served (Connecticut), financial rewards to schools that
meet the USDA’s HUSSC (Mississippi), or through
state matching funds (Tennessee). Instead of offering a
financial incentive, Minnesota recognizes schools that
follow the Institute of Medicine’s competitive food and
beverage standards31 with the ‘‘Healthy Kids Award’’
on the school report card. Pennsylvania used to offer a
financial incentive for voluntary compliance with the
state’s standards23 but repealed that provision effective
July 1, 2012.
Contract Compliance Provisions
Eleven states address contract compliance as part of
their competitive food law (see Table 2). Of these, 10
apply to vending machines, 8 apply to school stores,
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Conn. Gen. Stat. § 10-215b;
Conn. Gen. Stat. § 10-215f
Minn. Stat. § 124D.955
Miss. Code Ann. § 37-11-8
Tenn. Code Ann. § 49-3-313
7 include a` la carte cafeteria options, and 4 apply
to fund-raisers. Four of the 11 states’ laws explicitly
refer to all 4 venues in their contract provisions, 6
states list between 1 and 3 venues, and 1 state (Ohio)
failed to mention any venue by name. Nine of 11
states’ contract provisions apply to both new and
renewal contracts by a designated effective date. Texas
requires all contracts to immediately comply with state
nutrition standards.
Monetary Penalties for Failure to Comply
Seven states assign specific monetary penalties for
failing to comply with competitive food laws (Table 3).
Three of these also have contract provisions in place
requiring compliance with the competitive food law
(Table 2). State agencies responsible for enforcement
included the state Department of Education (5 states),
local food service supervisors and directors (1 state),
and the state Department of Agriculture (2 states). In
West Virginia, both the local food service directors and
Department of Education are responsible for enforcing
the state’s law. Louisiana had penalties for violations,
providing for withholding funds and corrective action
plans, but these provisions were repealed December
20, 2012, and, therefore, are not included in
Table 3.
DISCUSSION
This is the first study to our knowledge to document
codified state law approaches to facilitate compliance
with competitive food laws. Interestingly, one half
of the states (18 of 36 including D.C.) with competitive food laws18 have incorporated compliance
provisions into their laws through incentives, contract
compliance provisions, and/or penalty schemes. The
approaches presented herein provide helpful examples
for USDA and state and local agencies as they seek to
implement, comply with, and/or enforce the updated
USDA standards nationally.
To date, only 2 studies have examined the impact
of incentive schemes on compliance with competitive
© 2014, American School Health Association
Table 2. States That Address Food and Beverage Contract Compliance Within the State’s Competitive Food and Beverage Law(s),
as of January 2013
State
Effective Date
of the Law
Contracts’
Compliance
Date
Venues Where Nutrition
Guidelines/Contracts
Must Comply
Arizona
Arkansas
July 15, 2005
September 17, 2005
July 15, 2006∗
August 8, 2005∗
California
January 1, 2000
January 1, 2004∗
Colorado
August 5, 2008; January
30, 2009
August 15, 2005
August 1, 2005
July 1, 2009∗
Vending, a` la carte
Vending, school stores, a` la carte,
fund-raisers
Vending, school stores, a` la carte,
fund-raisers
Vending, school stores, a` la carte,
fund-raisers
Vending, school stores
Vending
September 18, 2010†;
July 1, 2011∗
July 1, 2008∗
Not speciﬁed
Oregon
July 1, 2011; September
29, 2011
July 1, 2007
Texas
February 26, 2009
Immediately†
Vending, school stores, a` la carte,
fund-raisers
Utah
West Virginia
February 7, 2008
July 1, 2008
July 2, 2008∗
Not speciﬁed
Vending, school stores, a` la carte
Vending, school stores
Louisiana
North Carolina
Ohio
May 15, 2005∗
August 1, 2005∗
Legal Citation for
Contract Provision
Vending, school stores, a` la carte
Ariz. Rev. Stat. § 15-242
005-01-08 Ark. Code R. 6.02.7
Cal. Educ. Code § 35182.5
Colo. Rev. Stat. § 22-32-134.5; 1 Colo.
Code Regs. § 301-79
La. Rev. Stat. Ann. § 17:197.1
N.C. Gen. Stat. § 115C-264.2; 2005 N.C.
Sess. Laws 253 § 3
Ohio Rev. Code Ann. §§ 3313.814;
3313.816
Or. Rev. Stat. § 336.423; 2007 Or. Laws
455, § 3
4 Tex. Admin. Code § 26.3; 4 Tex. Admin.
Code § 26.4; 4 Tex. Admin. Code §
26.5
Utah Admin. Code r. R277-719-5
W. Va. Code R. § 126-86-5
∗ New and renewal contracts.
† Immediate compliance, with no phase-in periods for preexisting contracts.
Table 3. States Specifying Penalties for Noncompliance With State Competitive Food Laws as Part of Their Codiﬁed Law, as of
January 2013
Applies Also
to Contracts∗
State
Enforcement Agency
Penalties
Citations
District of Columbia
Ofﬁce of the State Superintendent
of Education
Commissioner of Education
$500/day ﬁne
D.C. Code § 38-822.06
No
Graduated offenses ranging from a ﬁne of no
less than 1week’s revenue of competitive
food sales, to a ﬁne of 1month’s revenue
from sales, culminating in a 6-month ban of
competitive food sales
Potential withholding of federal and state child
nutrition program funds and/or ﬁscal action
Financial penalties
Reimbursement for penalties assessed against
school nutrition program for violation of the
rules by any vendor, individual or entity
Potential disallowing of meal reimbursement
for up to 4weeks prior, corrective action plan
Recovery of local general funds and/or removal
of vending privileges
Ky. Rev. Stat. Ann. §§ 156.160,
158.854
No
N.J. Admin. Code § 2:36-1.9
No
Or. Admin. R. 581-051-0100
Tenn. Code Ann. § 49-6-2307
No
No
4 TAC § 26.9
Yes
W.V. Code R. §§ 126-85-121;
126-86-5(5.1.7); 126-86-13
Yes
Kentucky
New Jersey
Oregon∗
Tennessee
Division of Food and Nutrition
(State Department of Agriculture)
Department of Education
Board of Education
Texas∗
Texas Department of Agriculture
West Virginia∗
Food Service Directors and West
Virginia Department of Education
∗ States that are part of the 11 states with competitive food laws that also include a competitive food and beverage contract provision (see Table 2).
food standards.21,22 Incentives are a direct way to
promote compliance from the outset, rather than
enforcing competitive food laws after noncompliance
has been detected. This is similar to the approach that
the USDA has taken with its HUSSC.24,25
On the other hand, laws that enforce competitive
food standards through monetary penalties for noncompliance also impact a school’s budget. Although
we were unable to identify studies that examine the
Journal of School Health
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impact of state contract compliance and/or penalty
schemes on compliance with state competitive food
laws, Kentucky’s graduated penalty scheme is noteworthy. It states that the offending school will lose
at least ‘‘ . . . one (1) week’s revenue’’ of competitive
food sales for the first offense, ‘‘ . . . no less than one (1)
month’s revenue’’ for ‘‘subsequent violations,’’ and up
to a 6-month ban on any competitive food sales for
multiple violations (Ky. Rev. Stat. Ann. § 156.160).
July 2014, Vol. 84, No. 7 •
© 2014, American School Health Association • 469
The threat of such severe revenue losses provides a
strong incentive for schools to comply with applicable
competitive food laws.
Limitations
This study was limited solely to codified statutory
and administrative laws. Noncodified policies or
administrative procedures or practices were not
captured. Furthermore, this was not a study of
implementation of state competitive food compliancerelated laws. Future research is needed in this area.
Finally, district-level policies and procedures are
an additional avenue for ensuring compliance with
competitive food standards; however, this study was
limited to state laws.
Conclusions
This study provides useful examples for USDA and
for states and local education agencies as they seek to
identify ways to facilitate compliance with competitive
food standards. Given that implementation and
compliance were chief among the concerns raised
relative to USDA’s proposed rule,19 state (and local)
models will be useful and will continue to build on the
approach that USDA has already taken with its HUSSC
program.
IMPLICATIONS FOR SCHOOL HEALTH
Providing incentives and enforcement mechanisms
for ensuring state competitive food law compliance
enables school officials, parents, students, and others
to more easily hold schools accountable for selling
noncompliant items. In its response to comments
submitted in response to the proposed rule, USDA
noted that implementation and compliance challenges
were a concern and that they will develop and provide
technical assistance (TA) to state and local education
agencies responsible for compliance reporting.19 The
following recommendations provide a starting point
for such efforts.
Recommendations for USDA
1. Identify mechanisms for incentivizing compliance
with the updated federal standards akin to the
monetary incentive currently provided to HUSSC
schools.
2. Provide model, real-world examples of approaches
that states and local education agencies have taken
to incentivize or facilitate compliance with stringent
standards.
3. Develop models for states and local education
agencies to utilize for reporting on compliance with
updated federal standards.
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July 2014, Vol. 84, No. 7 •
Recommendations for State Legislatures and/or State
Departments and Boards of Education
1. Incorporate incentive schemes and/or enforcement
mechanisms into existing state laws to facilitate
compliance with state and federal standards.
2. Provide TA to local education agencies to support
reporting and compliance with state and federal
standards.
Recommendations for Local Education Agencies
1. Publicly recognize compliant schools and schools
that have exceeded existing federal, state, and/or
local standards through awards and other incentive
programs (eg, including such recognition on the
school’s annual yearly progress report card).
2. Report on school-level compliance with federal,
state, and local standards as part of the school’s
annual yearly progress report card similar to
reporting on academic achievement.
3. Provide TA to schools to facilitate implementation
and compliance with federal, state, and local
standards.
Recommendations for School Health Advocates
1. Provide real-world examples and case studies of
compliance success stories for policymakers.
2. Identify policymakers’ research and data needs
relative to compliance and implementation efforts.
3. Work with researchers to translate and disseminate
the results of their research for use by policymakers
and by advocates.
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