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By Blake Neff

The U.S. Department of Agriculture (USDA) has proposed a new regulation that would start levying big fines on schools that fail to adhere to school lunch regulations promoted by first lady Michelle Obama.

The Healthy Hunger-Free Kids Act of 2010 implemented a variety of new requirements for schools receiving federal assistance to provide school lunches. Among other things, the laws required school lunches to include more fruits and vegetables, limit the fat content of milk, ban the inclusion of trans fats, and restrict the sodium content of food. The law was the centerpiece of Michelle Obama’s campaign against childhood obesity, but it’s encountered plenty of resistance, both from children (who have complained about less tasty meals) and from school nutrition professionals (who have complained the requirements are onerous and expensive).

The bill expired last year, but the nature of the legislation means instead of simply going away its programs will continue on autopilot until Congress takes further action.

As a result, USDA is still attempting to strengthen the law’s enforcement. In a new rule released Monday, the department outlines a system of fines it says are needed to punish schools defying the nutrition rules. The Healthy Hunger-Free Kids Act authorizes USDA to create rules for fining schools, but it hasn’t tried to create such a rule until now.

“Under section 303, the Secretary or a State agency may establish an assessment [fine] against any school food authority or school administering the Child Nutrition Programs if the Secretary or the State agency determines that the school or school food authority failed to correct severe mismanagement of any program, failed to correct repeated violations of program requirements, or disregarded a requirement of which they have been informed,” the proposed rule states.

The rule summary provided by USDA takes pains to emphasize it will only be imposed in exceptional circumstances.

“[T]he statutory scheme only anticipates assessments be established in instances of severe mismanagement of a program, disregard of a program requirement of which the program operator had been informed, or failure to correct repeated violations,” it says. “[V]iolations that would result in assessments would be egregious or persistent in nature, remaining unresolved after the normal monitoring and oversight activities have failed to secure corrective action.”

The proposed fines would range from 1 percent of a state’s federal meal reimbursement for a first offense to 10 percent of the reimbursement for a third offense and all subsequent offenses. That’s not necessarily a tiny amount of money, especially if USDA finds a major entity such as a large school district guilty of persistent violations. For example, in 2014, the Los Angeles Unified School District received almost $300 million in federal funds for its school lunch program. Even a 1 percent fine would be almost $3 million, and a third violation would result in a massive $30 million fine per offense.

The new regulation will be available for public comment for the next 60 days. A final version of the rule will likely be published shortly after the comment period ends. The rule itself states fines on schools will start to be levied one year after the final rule is published, meaning it will fall to the next president to enforce the rule rather than the Obama administration.

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