Public Notification That Three Carbonated Juice Drink Products Are Now Excluded From the "Soda Water'' Category of "Foods of Minimal Nutritional Value''

This notice serves to inform the public that Knudson and Sons, Inc., the manufacturer of "Jamaican Style Lemonade Spritzer,'' "Orange Passionfruit Spritzer,'' and "Orange Spritzer,'' has petitioned the Food and Nutrition Service (FNS) to exempt these products from the "Categories of Foods of Minimal Nutritional Value'' under the National School Lunch Program and the School Breakfast Program. Based upon data furnished by the manufacturer, FNS has determined that these products should not be classified as foods of minimal nutritional value. The petitioner has been notified of this determination in writing and that FNS does not prohibit the sale of the products in school food service areas during breakfast or lunch period.

Background

On Jan. 29, 1980, USDA published final regulations (45 FR 6758 at 6772), commonly known as the competitive foods rule, which identified categories of foods of minimal nutritional value. These foods were identified as soda water, water ices, chewing gum and certain candies (hard candies, jellies and gums, marshmallow candies, fondants, licorice, spun candy, and candy coated popcorn). The sale of such foods is prohibited in food service areas during breakfast and lunch periods by the regulations governing School Breakfast Program 7 CFR 220.12(a), and the National School Lunch Program, 7 CFR 210.11(b), respectively.

As defined in 7 CFR 210.11(a)(2) and 220.2(i-1), foods of minimal nutritional value provide less than five percent of the U.S. Recommended Daily Allowance (U.S.RDA) for each of eight specified nutrients per 100 calories and less than five percent of the U.S.RDA for each of the eight specified nutrients per serving. In the case of artificially sweetened foods, only the ``per serving'' measure applies. The eight specified nutrients are: Protein, vitamin A, vitamin C, niacin, riboflavin, thiamine, calcium, and iron. The competitive foods rule has been amended many times but it still retains its original intention of keeping foods of minimal nutritional value from competing with foods served in school lunch and breakfast program service areas. Under 7 CFR 220.12(a) of the School Breakfast Program regulations and 7 CFR 210.11(b) of the National School Lunch Program regulations, school food authorities have the right to restrict and even forbid the sale of foods that would otherwise be permitted under the competitive foods rule. If competitive foods are allowed to be sold in food service areas during breakfast and lunch periods, all income from such sales must accrue to the benefit of the nonprofit school food service or the school or student organization approved by the school.

The competitive foods rule contains provisions for amending Appendix B--Categories of Foods of Minimal Nutritional Value, of Part 210, National School Lunch Program, and Part 220, School Breakfast Program, to exempt an individual food from a category of foods of minimal nutritional value as listed in appendix B or to add a particular category of food to appendix B as a category of foods of minimal nutritional value. These provisions are found in Sec. 210.11(a)(2) and paragraph (b) to appendix B to part 210 (for the National School Lunch Program) and in Sec. 220.12(b) (for the School Breakfast Program). The public may petition FNS to request that an exception from or an addition to the food categories listed in appendix B be made. A schedule for petitioners regarding submission deadlines is furnished in part 210, appendix B(b)(3), and part 220, appendix B. The petition must include a statement of the percent of the U.S.RDA for the eight nutrients listed in Secs. 210.11(a)(2) and 220.2(i-1) that the food provides per serving and per 100 calories and the petitioner's source of this information. FNS determines whether or not the individual food is a food of minimal nutritional value and informs the petitioner in writing of such determination, and the public by notice in the Federal Register. In determining whether a food is a food of minimal nutritional value, discrete nutrients added to the food are not taken into account.

USDA received one petition from Knudson and Sons, Inc. dated Feb. 10, 1993 and a second petition dated April 29, 1993, providing all necessary petition components for three products. Both per serving and per 100 calorie nutrient analysis data show that one of the eight nutrients (Vitamin C) is greater than 5% of the U.S.RDA in each of the three products. Hence, the following three products produced by Knudson and Sons, Inc. are exempt from the "soda water category'' of "Foods of Minimal Nutritional Value'' (7 CFR part 210, appendix B(a)(1) and part 220, appendix B(1)): "Jamaican Style Lemonade Spritzer,'' the "Orange Passionfruit Spritzer'' and the "Orange Spritzer.'' FNS does not prohibit the sale of these products in a school food service area during breakfast or lunch period.

In compliance with petitioning schedules, the company was notified in writing of this decision and this notice documents public announcement.

Although required by the regulations to publish this notice, USDA emphasizes that such notification is not to be construed as either approval or endorsement of any food product or manufacturer identified in this notice. Nor is it certification that such food product has a significant nutritional value. Nor in any way is it guidance or encouragement to state agencies and school food authorities concerning their possible purchase of any class or type of food product identified in this notice.