Ctr. for Sci. in the Pub. Interest v. Perdue, Case No.: GJH-19-1004

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: GEORGE J. HAZEL, United States District Judge
• Citation: 438 F.Supp.3d 546
• Parties: CENTER FOR SCIENCE IN THE PUBLIC INTEREST, et al., Plaintiffs, v. Sonny PERDUE, et al., Defendants.
• Docket Number: Case No.: GJH-19-1004
• Decision Date: 13 April 2020

438 F.Supp.3d 546

CENTER FOR SCIENCE IN THE PUBLIC INTEREST, et al., Plaintiffs,
v.
Sonny PERDUE, et al., Defendants.

Case No.: GJH-19-1004

United States District Court, D. Maryland, Southern Division.

Signed April 13, 2020

438 F.Supp.3d 552

Conrad W. Bolston, Jeremy C. Marwell, Pro Hac Vice, Kristen P. Miller, Pro Hac Vice, Misty M. Howell, Pro Hac Vice, Vinson & Elkins LLP, Josephine Thacher Morse, Pro Hac Vice, Karianne Jones, Democracy Forward Foundation, Washington, DC, for Plaintiffs.

Joseph E. Borson, United States Department of Justice, Washington, DC, for Defendants Sonny Perdue, Brandon Lipps, United States Department of Agriculture, Food and Nutrition Service.

John R. Garza, Garza Regan and Associates PC, Rockville, MD, Joshua Dethlefsen, Pro Hac Vice, Office of the Nebraska Attorney General, Lincoln, NE, for Defendant State of Nebraska.

MEMORANDUM OPINION

GEORGE J. HAZEL, United States District Judge

438 F.Supp.3d 553

Plaintiffs Center for Science in the Public Interest and Chesapeake Institute for Local Sustainable Food & Agriculture, d/b/a Healthy School Food Maryland (collectively, "Plaintiffs") have brought this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , challenging a final rule promulgated by Defendant United States Department of Agriculture ("USDA") governing nutrition standards for school breakfast and lunch programs.¹ ECF No. 1. Pending before the Court are the parties’ Cross-Motions for Summary Judgment. ECF Nos. 26, 28.² No hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Plaintiffs’ Cross-Motion for Summary Judgment is granted, and USDA's Cross-Motion for Summary Judgment is denied.

I. BACKGROUND

A. School Lunch and Breakfast Programs

Over fifty years ago, Congress created the National School Lunch Program ("NSLP") and the School Breakfast Program ("SBP") "to safeguard the health and well-being of the Nation's children and to encourage the domestic consumption of nutritious agricultural commodities and other food." 42 U.S.C. §§ 1751, 1771. Congress charged the Secretary of Agriculture with implementing the school lunch and breakfast programs, id. § 1752, and required USDA to provide technical assistance and training to help states and schools comply with school meal standards under these programs, id. §§ 1758(a)(1)(B), (k)(1)(B).

Schools participating in the NSLP and SBP are required to serve meals that "are consistent with the goals of the most recent Dietary Guidelines for Americans [ ("Dietary Guidelines") ]." Id. § 1758(f)(1)(A). Congress has specifically directed USDA to "promulgate rules, based on the most recent Dietary Guidelines [ ], that reflect specific recommendations, expressed in serving recommendations, for increased consumption of foods and food ingredients offered in school nutrition programs," id. § 1758(a)(4)(B), and to "promulgate proposed regulations to update the meal patterns and nutrition standards for the [school lunch and breakfast programs] ... based on recommendations made by the Food and Nutrition Board of the National Research Council of the National

438 F.Supp.3d 554

Academy of Sciences" in the "School Meals: Building Blocks for Healthy Children" Report ("School Meals Report"), id. § 1753(b)(3)(A)(i). The Dietary Guidelines is a statutorily mandated report, jointly issued every five years by USDA and the Department of Health and Human Services, that "contain[s] nutritional and dietary information and guidelines for the general public, and shall be promoted by each Federal agency in carrying out any Federal food, nutrition, or health program." 7 U.S.C. § 5341(a)(1). The School Meals Report, published in 2010 by the Institute of Medicine's Committee on Nutrition Standards for National School Lunch and Breakfast Programs (the "Committee"), was commissioned by USDA to provide recommendations for the revision of "the nutrition- and food-related standards and requirements for the [school lunch and breakfast programs]." AR 7909.³ Specifically, the Committee "was asked to review and assess the food and nutritional needs of school-aged children in the United States using the 2005 [Dietary Guidelines] and the [Institute of Medicine]’s Dietary Reference Intakes (DRIs) and to use that review as a basis for recommended revisions to the [school lunch and breakfast programs’] Nutrition Standards and Meal Requirements." Id.

Relevant to this case, the School Meals Report recommended a gradual approach to improving the sodium and whole grain content in school meals. AR 8087. For sodium, the School Meals Report recommended a maximum sodium intake based on age group and meal—between 430 mg and 470 mg for breakfast and between 640 mg and 740 mg for lunch—and recommended that USDA set intermediate targets for maximum sodium intake over a ten-year period. AR 8103–6. For whole grains, the School Meals Report recommended incremental increases in the minimum percentage of grains that are required to be whole grain-rich so that the proportion of whole grain-rich foods in school meals would exceed fifty percent within three years. AR 8106.

B. The 2012 Rule

On January 26, 2012, after a notice and comment period, USDA promulgated a final rule, Nutrition Standards in the National School Lunch and School Breakfast Programs , 77 Fed. Reg. 4088 (Jan. 26, 2012) ("2012 Rule"), that "align[ed]" the school lunch and breakfast programs’ nutrition standards with the Dietary Guidelines and was "largely based" on the School Meals Report. AR 3042. For sodium, the 2012 Rule established a ten-year, three-phased schedule for reducing sodium levels based on age group and meal. By School Year ("SY") 2014–2015, schools were required to reduce sodium levels to between 540 mg and 640 mg for breakfast and between 1230 mg and 1460 mg for lunch ("Sodium Target 1"); by SY 2017–2018, to between 485 mg and 570 mg for breakfast and 935 mg and 1080 mg for lunch ("Sodium Target 2"); and, finally, by SY 2022–2023, to between 430 mg and 500 mg for breakfast and 640 mg and 740 mg for lunch ("Final Sodium Target"). AR 3051. USDA explained that "[m]eeting the final sodium targets will enable schools to offer meals that reflect the 2010 Dietary Guidelines’ recommendation to limit sodium intake to less than 2,300 mg per day." Id. USDA also explained that a phased schedule "lengthening the transition to lower sodium foods" would "respond to the challenge of meeting those targets" by providing more time to facilitate student

438 F.Supp.3d 555

acceptance and for the industry to develop products that meet the rule's standards. AR 3080.

For whole grains, the 2012 Rule required that fifty percent of all grain products offered in school meals be whole grain-rich during SY 2013–2014, and for SY 2014–2015 and beyond, it required that one-hundred percent of grain products be whole grain-rich. AR 3076. USDA explained that this approach matched the 2005 Dietary Guidelines recommendation that at least half of all grains be whole grains. AR 4093–94.

In response to the 2012 Rule, Congress enacted a series of appropriations riders that directed USDA to retain Sodium Target 1 through SY 2017–2018 and allowed states to grant exemptions from the one-hundred percent whole grain-rich requirement for school food authorities ("SFAs")⁴ that "demonstrate[d] hardship, including financial hardship, in procuring specific whole grain products which are acceptable to the students and compliant with the whole grain rich requirements," so long as the SFAs still met the fifty-percent whole grain requirement. See AR 80 (2011 Rider); AR 244 (2014 Rider); AR 943 (2015 Rider); AR 1833 (2017 Rider). The last rider was set to expire after SY 2017–2018. AR 1833.

C. The 2018 Rule

On November 30, 2017, USDA published an Interim Final Rule⁵ extending the sodium and whole grain "flexibilities" for the school meal programs. AR 1–21; see also Child Nutrition Programs: Flexibilities for Milk, Whole Grains, and Sodium Requirements , 82 Fed. Reg. 56,703 (Nov. 30, 2017). With respect to sodium, the Interim Final Rule acknowledged "the importance of reducing the sodium content of school meals," and it stated that "reaching this objective will likely require a more gradual process than the planned 10 years to accommodate the individual challenges of SFAs and their access to new products lower in sodium." AR 6. The Interim Final Rule would thus "retain Sodium Target 1 as the regulatory limit in the NSLP and SBP through the end of the SY 2018–2019," with the high probability that Sodium Target 1 would remain in effect "through at least the end of SY 2020–2021 to provide SFAs more time to procure and introduce lower sodium food products, allow food industry more time for product development reformulation, and give students more time to adjust to school meals with lower sodium content." AR 2. USDA sought "public comments on the long-term availability of this flexibility and its impact on the sodium reduction timeline established in 2012 and, specifically, the impact on Sodium Target 2." Id.

With respect to whole grains, the Interim Final Rule...