Rep. John Lawrence

Rep. John Lawrence speaks at a press conference March 30, 2022, in the Pennsylvania Capitol after the House Agriculture and Rural Affairs Committee passed his bill that aims to allow Pennsylvania-produced whole milk in schools.

A plan to allow whole milk in Pennsylvania schools has farmer support and momentum in Harrisburg.

What it might not have is the ability to hold up in court.

Rep. John Lawrence’s legislation would deem milk that is produced, processed and sold in Pennsylvania to be in the stream of intrastate — not interstate — commerce.

The thinking is that Congress regulates only interstate trade, so if the milk never leaves Pennsylvania and is purchased with local funding, Washington should have no say.

But if the bill becomes law, this clever strategy risks embroiling the state in a losing lawsuit and dashing farmers’ hopes on a signature issue.

That’s in part because interstate commerce is unlikely to be relevant in a legal challenge.

“It’s a creative thought, but I don’t think it gets anywhere,” said Brook Duer, staff attorney at the Penn State Center for Agricultural and Shale Law.

Schools that participate in the National School Lunch Program and the associated breakfast program must follow strict rules for both the foods offered in the regular meals and for a la carte items.

Only 1% and skim milk are allowed by current guidelines, and there’s no loophole for local sourcing.

Even if interstate commerce came into play, a state law designating something as in-state commerce would not hold much weight.

“The federal court would say, ‘Thank you very much, but we will decide whether something is interstate commerce or intrastate commerce for the purposes of this lawsuit,’” Duer said.

Reimbursement at Risk

Getting whole milk back into schools has evolved into a veritable crusade for the dairy industry, inspiring a level of farmer passion that has surprised even longtime ag lawmakers like Lawrence.

“This issue is one that’s really taken on a life of its own,” he said in a House committee meeting last week.

But schools are a major market for dairy. The National School Lunch Program served 30 million children in 2016.

In Pennsylvania alone, schools served more than 168 million meals in the last school year before the COVID-19 pandemic, according to the state Department of Education.

Farmers also worry that the current school milk offerings are souring the next generation of shoppers toward dairy. In the House meeting, several lawmakers made disparaging comments about the taste of skim milk — remarks that echo the sentiments of many dairy farmers.

Nonfat and 1% milk became the standard in schools as part of a 2010 law that made wide-ranging changes to the National School Lunch Program in an attempt to curb childhood obesity.

The law required school milk offerings to follow the federal Dietary Guidelines for Americans, which recommends low-fat options.

But in addition to setting nutritional standards for school meals, one of the School Lunch Program’s main functions is to reimburse institutions for each meal they serve that meets the program requirements.

The federal government reimburses schools $3.75 for a free meal, $3.35 for a reduced-price meal and a small amount for a meal purchased at full price, said Diane Pratt-Heavner, a spokeswoman for the School Nutrition Association.

Some 54% of Pennsylvania’s 1.7 million students were eligible for free or reduced-price meals in 2019-2020, the most recent year with available data.

This year, schools across the country have been able to serve free meals to all students under a pandemic-related waiver from USDA, said Kendall Alexander, press secretary for the Pennsylvania Department of Education.

Almost all public schools, as well as some private ones, participate in the National School Lunch Program.

For these schools’ food service programs, federal reimbursements are the main source of funding, with full-price meals and a la carte sales rounding out budgets.

USDA also provides about 20% of the food served in participating schools, Pratt-Heavner said.

In a major boon to schools, reimbursements have been increased during the pandemic to help with rising costs associated with supply chain disruptions and staffing shortages, she said.

Because whole milk is not part of the School Lunch Program, meals that include whole milk would not qualify for federal reimbursement — a loss of funding that could quickly add up.

And the milk standards for meals — only low-fat and skim allowed — also apply to a la carte options.

Lawrence, R-West Grove, has tried to outmaneuver the federal rules by arguing the whole milk bill is protected by the 10th Amendment, which allows powers not enumerated to the federal government to go to the states or the people.

But Duer said that claim is pointless because the central question is whether a school meal meets the federal rules for reimbursement. If you want to get federal funding, you have to follow the rules associated with the money.

“No part of that is reserved to the states under the 10th Amendment,” Duer said. “That is a very standard, run-of-the-mill exercise by the federal government of its authority over its expenditures.”

In an email, a USDA spokesperson emphasized that to be eligible for reimbursement, school meals must meet federal standards, which exclude whole milk, and that whole milk is not allowed in a la carte offerings either.

The spokesperson did not elaborate on what the agency would do if a school served whole milk in spite of these rules.

School Rules

The National School Lunch Program has complex regulations about what ends up on lunch trays.

Schools must offer a protein, grain, fruit, vegetable and more than one type of milk. Students don’t have to take each item, but all must be available.

On top of that, meals have caps on calories, saturated fat and sodium. There are even requirements for the variety of meats and vegetables that must be served each week.

Even if whole milk were allowed in schools, there’s no guarantee that it would become the juggernaut dairy farmers are hoping for.

The limits on saturated fat and calories would make the drink difficult to serve regularly, Pratt-Heavner said.

But she said the recent rule change to allow 1% flavored milk is a big step.

“We thought (that) was an important option for schools where kids just really weren’t drinking the fat-free options,” she said.

Even without whole milk, dairy has a special place in cafeterias. Milk, water and 100% fruit juice are the only beverages that can be offered with school meals.

The Healthy, Hunger-Free Kids Act — the farmer-lamented law that led to whole milk’s banishment from schools — also cleared away some of milk’s competition from sugary drinks, Pratt-Heavner said.

No sodas may be sold to students in grades K-8, and only sugar-free or diet sodas that meet USDA rules may be sold in high school, said Alexander of the state Education Department.

Milks and other items that do not meet federal lunch standards can be sold in a limited number of exempt fundraisers during the school year, though not in the cafeteria during meal service, she said.

Moving Fast

Pennsylvania’s whole milk bill has been moving quickly in the Legislature, with little public discussion of its potential pitfalls.

Lawrence introduced his bill in the House on March 17, and it was approved in committee last week. The Senate Agriculture and Rural Affairs Committee approved its version on Tuesday with minimal discussion. Neither committee had any votes against the bill.

Rep. Emily Kinkead, D-Pittsburgh, sounded the only note of unease in the House meeting, saying the Supreme Court has ruled that the federal government can set conditions for money it makes available to states.

But her concern was that schools might be unwilling to offer whole milk if it meant going without federal funding during a long court fight. She did not discuss whether the federal government would be within its rights to withhold the funding in the first place.

Ag Department spokeswoman Shannon Powers said Gov. Tom Wolf’s administration supports helping to give children extra nutrition options.

“We would welcome conversations with the Legislature to address how proposed legislation will impact a school’s federal funding if they participate in federal nutrition programs and choose to offer whole milk,” Powers said.

Megan Schaper, president-elect of the School Nutrition Association of Pennsylvania, said her organization appreciates efforts that encourage students to choose and enjoy school meals, but such actions must be carefully considered.

“Providing more flexibility in menu planning is helpful, but any singular change — like allowing whole milk — has to be viewed within the full scope of regulations that ensure that students’ meals reflect the guidance of the Dietary Guidelines for Americans, as is required by federal law,” said Schaper, who is the food service director at State College Area School District.

Lawrence said he tried to avoid conflict with federal law by specifying that the whole milk funding should come from a nonfederal source. This strategy could add to the burden on state or local taxpayers.

Moreover, the bill requires the state attorney general to sue the federal government on behalf of a school to recover funding withheld or revoked over serving in-state whole milk.

At a Pennsylvania Farm Bureau luncheon last week, that provision was greeted with applause.

But Duer said he was skeptical that legislation could compel the attorney general’s office to bring a lawsuit.

“It’s more of a discretionary piece of litigation that in their opinion may or may not be in the best interest of taxpayers,” he said.

Lawrence said the idea was inspired by a state law that empowers the attorney general to work on behalf of a farmer to address local ordinances that are stricter than state law allows.

But even under that law, the attorney general’s office only takes up the case if it agrees that the ordinance is an overreach.

Collateral Damage

The whole milk bill could also have unintended consequences for Pennsylvania dairy processors.

States have rules that allow for retaliation when one state limits out-of-state businesses’ access to its procurement system.

Because the whole milk bill gives preference to Pennsylvania products, other states could respond by refusing contracts to Pennsylvania suppliers.

Lawrence had not responded by press time to a question about retaliation risks.

Duer said Pennsylvania has seen some interest over the years in favoring in-state firms, such as in prison food contracts, but the unpredictable results have generally kept these plans from being implemented.

“When you’re a producer state like Pennsylvania is, you’re endangering your in-state businesses when you do things like this,” he said.

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