Nutrition Programs: An Overview
Background
Although the United States has one of the most advanced food systems in the world, many Americans find it difficult to maintain a filling and nutritious diet. As a result, the federal government has developed several programs to assist those in need. The Food and Nutrition Service (“FNS”), a sub-agency of the United States Department of Agriculture (“USDA”), implements and oversees many of these programs, the primary focus of which are providing supplemental food to low-income individuals. However, in addition to helping people get the food they need, there is an increasing focus on nutrition education, and helping people make decisions about the quality of the food they eat. These issues affect so many individuals that the FNS currently reports that one in four Americans are helped by nutrition programs. Most nutrition programs are targeted at a specific group of people who are deemed to face a higher risk of nutrition problems. These groups include indigenous people, women, infants, children, and seniors.
FNS currently administers fifteen federal nutrition assistance programs. Through these programs, FNS’s goal is to end hunger and obesity in the United States. FNS’s mission is to “increase food security and reduce hunger by providing children and low-income people access to food, a healthful diet and nutrition education in a way that supports American agriculture and inspires public confidence.” The following overview briefly describes the major federal nutrition programs and how they operate.
The Supplemental Nutrition Assistance Program
USDA’s Economic Research Service reports that the Supplemental Nutrition Assistance Program (“SNAP”) (formerly known as the Food Stamp Program) is the largest of the nutrition assistance programs. Originally authorized by the Food Stamp Act of 1964, SNAP is federally administered by the FNS. State agencies then administer the program at the state and local level by determining eligibility and distributing benefits. The program provides eligible, low-income families with monthly benefits calculated based on the size and income of the household.
SNAP recipients can use their benefits to purchase any household foods such as fruits, vegetables, meat, poultry, fish, dairy products, bread, cereals, and seeds and plants that produce food. Recipients cannot use SNAP benefits to buy hot food, food to be eaten in the store, or non-food items such as alcohol, tobacco products, vitamins, medicines, pet food, soap, or household supplies.
Historically, benefits were conferred in the form of paper coupons, but the Food Conservation and Energy Act of 2008 (“2008 Farm Bill”) established electronic benefit transfer cards (“EBTs”) as the official form of benefit transfer. SNAP recipients can electronically swipe EBTs like a debit or credit card in exchange for authorized products. To encourage farmers’ markets to accept EBTs, the FNS allows one farmers’ market sponsor to obtain a license to accept EBT on behalf of all farmers in the market through one centralized point of sale. In addition to officially switching to EBTs, the 2008 Farm Bill made a number of other changes designed to increase the effectiveness of SNAP. These changes included authorizing states to establish new methods of receiving applications and incorporating nutrition education and fruit and vegetable promotion aspects into the program.
The Agricultural Act of 2014 (“2014 Farm Bill”) continued this path of reform. Notable changes were increases to the depth and scope of healthy grocery store food in the form of greater stocking requirements for SNAP retailers, the establishment of a pilot project to increase mobile phone EBT accessibility at farmers’ markets, and the authorization of SNAP acceptance for non-profit organizations who purchase and deliver food to homebound senior citizens as well as for Community Supported Agriculture (CSA).
The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) directed FNS to reevaluate the Thrifty Food Plan by 2022 and every subsequent five years. FNS uses the Thrifty Food Plan, which is the basis for the maximum SNAP benefit allotments, to calculate the benefits recipients receive. Prior to the 2018 Farm Bill, updates to the Thrifty Food Plan were up to the discretion of the Secretary of Agriculture. However, since its inception in 1975 all Secretaries of Agriculture adhered to a cost-neutral calculation. In 2021, the Biden administration decided not to adhere to the cost-neutral calculation and updated the Thrifty Food Plan in a way that increased benefits to recipients on average by $36.24 per person, per month for Fiscal Year 2022.
According to the United States Census Bureau, in 2018 about 11.3 percent of American households (14 million households) received SNAP benefits at some point during the year. Out of these households, 59.3 percent were white alone, meaning that every member of the household was white. The remaining households were made up of Black Americans, Indigenous Americans, or People of Color (“BIPOC”). Out of all households, 26.6 percent were Black or African American alone; 1.5 percent were American Indian and Alaskan Native alone; 2.9 percent were Asian alone; 0.2 percent were Native Hawaiian and other Pacific Islander alone; 6.4 percent were some other race alone; and the remaining 3.2 percent of households were made up of two or more races. In its study, the U.S. Census Bureau instructed “Hispanics [to] choose one or more race categories, including [those listed above].”
The Women, Infants, and Children Supplemental Nutrition Program
The Special Supplemental Nutrition Program for Women, Infants, and Children (“WIC”) is designed to help low-income pregnant, postpartum, and breastfeeding women, infants, and children up to age five achieve and maintain healthy diets. According to the FNS, WIC serves about half of all infants born in the United States. Legislation governing WIC is found in the Child Nutrition Act of 1966. The FNS administers the program at the federal level. At the state level there are eighty-nine state agencies administering WIC programs in connection with approximately 47,000 authorized retailers and 1,900 local agencies. The three primary benefits of WIC programs are food assistance, nutrition education, and referral services to other health and social service organizations. Perhaps the largest of these three benefits, at least from an economic perspective, is food assistance. Food assistance benefits were primarily conferred in the form of vouchers. However, all states have been mandated to implement EBTs by October 1, 2020. EBTs can be used in the check-out lane much like a credit card to receive approved food items at participating retailers. The food items approved for purchase are selected for their high concentration of nutrients. Some examples of WIC foods are iron fortified infant formula and cereal, vitamin-C rich fruit or vegetable juice, eggs, milk, cheese, peanut butter, tofu, dried and canned beans, and whole-grain breads.
To be eligible for WIC, an applicant must meet categorical, residential, income, and nutritional requirements. Applicants meet the categorical requirement if they are women who are pregnant, six months postpartum, or breastfeeding; infants; or children under five years old. Applicants meet the residential requirement if they live in the state in which they apply or meet an Indian Tribal Organization’s residency requirements. Each state sets its own income requirement. For a WIC applicant to be eligible to receive WIC benefits, the applicant’s income must be at or below the state’s requirement. However, if an applicant is already enrolled in other programs such as SNAP or Medicaid, they are usually automatically income eligible. An applicant meets the final requirement, nutritional risk, if the applicant meets with a health professional who determines the applicant to be at nutrition risk. An individual is at nutrition risk if they, for example, are anemic, underweight, or have a history of poor pregnancy outcomes.
Because millions of Americans meet these requirements, and the grants funding WIC are limited, state WIC agencies often must keep a waiting list. The state WIC agencies determine who on the waiting list will get WIC benefits first by using an FNS established Priority System. Priority is awarded to pregnant women, breastfeeding women, and infants determined to be at a nutrition risk due to a nutrition-related medical condition such as anemia, underweight, overweight, or pre-term birth. The six subsequent categories focus on providing help to young children, pregnant women, and new mothers with either a nutrition-related medical condition or inadequate dietary patterns.
According to FNS, in April 2018 more than 7.8 million women, infants, and children were enrolled in WIC. Out of these women, infants, and children, 58.81 percent were white. The remaining enrollees were Black Americans, Indigenous Americans, or People of Color (“BIPOC”). Out of all April 2018 WIC enrollees, 21.54 percent were Black or African American; 8.88 percent were American Indian and Alaskan Native; 3.78 percent were Asian; 0.81 percent were Native Hawaiian and other Pacific Islander; 6.08 percent reported being of multiple races; and the remaining 0.09 percent of enrollees did not report their race. These racial categories are the five racial categories required by the Office of Management and Budget. Note that WIC enrollees does not necessarily mean WIC participants.
In addition to the primary benefits available, women, infants, and children who have been certified to receive primary benefits are eligible to participate in the WIC Farmers’ Market Nutrition Program (“FMNP”). The FMNP provides checks or vouchers to participants that can be used to purchase fresh, unprepared, locally grown fruits, vegetables, and herbs. Each state individually compiles a specific list of approved foods. Apart from providing an additional source of nutrition to those in need, the FMNP increases the consumption of agricultural commodities by expanding the use and number of local farmers’ markets. A similar program, the Senior Farmers’ Market Nutrition Program (“SFMNP”), operates very much like the FMNP except that the benefits are received by individuals over the age of 60. For more information about farmers’ markets, visit the Local Food Systems Reading Room.
Child Nutrition Programs
The first school meal service program, the National School Lunch Program (“NSLP”), was created by the 1946 National School Lunch Act (renamed the Richard B. Russell National School Lunch Act in 1999). The program has evolved over the years due to decades of amendments. For the first time in the program’s history, nutritional standards were introduced for all food sold at any time during the school day on campus with the passage of the Healthy, Hunger-Free Kids Act of 2010. Today, the program is federally administered by the FNS in cooperation with state education agencies that work directly with the schools. The goal of the program is to ensure that nutritious lunches are available to school children. Public and nonprofit private schools and residential child care institutions (such as day care centers and nurseries) are eligible to participate. Schools who participate in the program receive cash subsidies from FNS to pay for meals. In exchange for subsidies, the meals must meet federal nutrition standards and be provided to students at little or no cost. The amount of the subsidy received depends on whether the meals are offered for free, at a reduced price, or at full price. In addition to pricing requirements, congressional legislation has consistently directed participating schools to follow “Buy American” rules, which require schools to purchase domestically grown and processed foods to the maximum extent possible.
In addition to government funding for meals, schools that participate in the NSLP are entitled to receive commodity distributions and funding for nutrition education under the Fresh Fruit and Vegetable Program (“FFVP”). Federal funds are used to purchase fresh fruits and vegetables for distribution to schools. The FFVP is administered by the FNS. It was officially introduced in the Farm Security and Rural Investment Act of 2002, also known as the 2002 Farm Bill. The 2008 Farm Bill expanded the initiative to include a “farm to cafeteria” program to educate students and promote healthy food choices. The 2014 Farm Bill built on this initiative by including food and agriculture service learning grant programs to complement the NSLP while increasing the capacity for nutrition and garden education. The 2018 Farm Bill allotted $50 million to continue this program.
Although the NSLP has been an invaluable source of nutrition within the school system, the need for nutrition extends beyond school hours. Additional school meal service programs were developed by the FNS to provide nutritional food to children at times when school was not in session. For example, the NSLP program now provides cash subsidies to help pay for after school snacks, providing children with a nutritional supplement and an incentive to engage in after school activities. Another program, the School Breakfast Program (“SBP”), operates almost identically to the School Lunch Program. However, under the SBP there is no commodity distribution entitlement. For the summer months, the Summer Food Service Program (“SFSP”) provides free meals to low-income children at a central community center such as a school or recreational facility. Most sites serve one to two meals a day. To increase participation, FNS has created the Seamless Summer Option which reduces the paperwork and administrative costs associated with participating in the summer program for school districts already participating in the NSLP or the SBP. Starting in 2024, FNS began offering two new summer feeding options. First, FNS created a “non-congregate meal service” for eligible children in rural areas. While SFSP traditionally required program participants to consume the provided meals at the site under program supervision, this update allows meals to be provided to eligible children for off-site consumption. Second, FNS created the Summer EBT program. Similar to SNAP, Summer EBT provides program participants with an EBT card loaded electronically with funds to use for purchasing groceries from authorized retailers during the summer months.
Finally, for schools and childcare institutions that do not participate in other school meal service programs, the Special Milk Program provides subsidies for milk served to students.
Other Food Distribution Programs
The Commodity Supplemental Food Program (“CSFP”) seeks to improve the health of low-income elderly people at least 60 years of age. CSFP used to also serve women, infants, and children, but as required by the 2014 Farm Bill, women, infants, and children are no longer included in the program. USDA, through CSFP, provides states with both food packages and administrative funds. Although CSFP food packages do not provide a complete diet to recipients, the foods included tend to be rich in nutrients typically lacking in the recipients’ diets.
The Emergency Food Assistance Program (“TEFAP”) helps supplement the diets of low-income individuals by providing food commodities to states. First authorized in 1981, the federal government designed TEFAP to help reduce food surpluses and to simultaneously address food insecurity. The amount of assistance a state receives is based on the level of income and unemployment within the state. States that receive assistance deliver the food to local agencies that often distribute it to food banks, which then supply soup kitchens, shelters, food pantries, and other entities that serve the public directly. The types of foods included in TEFAP depends on state preferences and on agricultural market conditions.
The Food Distribution Program on Indian Reservations (“FDPIR”) provides food commodities to low-income Indigenous Americans. FDPIR is federally administered by the FNS and locally administered by Indian Tribal Organizations or state agencies. Participants can select from a list of food products and receive a food package each month that is designed to help them maintain a nutritionally balanced diet. Because many FDPIR participating households do not have easy access to SNAP offices or stores that are authorized to accept SNAP, Congress, in the 2008 Farm Bill, amended the program so that households eligible for both FDPIR and SNAP have the option as to which program they want to participate in. However, households cannot participate in both FDPIR and SNAP simultaneously.
Federal Regulatory Authority
In nutrition programs, administrative agencies such as USDA/FDA/EPA have been given authority by Congress to create regulations implementing the requirements of the federal law. In 2024, the Supreme Court of the United States issued two rulings that are expected to have a major impact on how judges decide cases challenging those regulations and that agency authority.
Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) overruled the long-standing doctrine of deference established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron deference was a two-step process that clarified how and when federal courts should defer to an agency regulation interpreting a statute. Chevron only applied in situations where a court had determined that the statutory language the agency was interpreting was ambiguous. If it was ambiguous, the court would consider whether the agency’s interpretation of the statutory language was “reasonable”. If it was reasonable, the court was required to defer to the agency’s interpretation. If it was not, the court would overrule the interpretation.
Loper Bright formally overturned Chevron. In a 6-3 decision, the Supreme Court held that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous[.]” Following the ruling, courts are instead required to exercise independent judgment in determining whether an administrative agency has acted within its statutory authority. Courts may still seek guidance from the agencies involved, but courts will no longer be required to defer to an agency’s interpretation of a statute.
In Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440 (2024), the Supreme Court extended the period of time during which a party may file a lawsuit challenging federal agency actions. According to 28 U.S.C.S. § 2401(a), the six-year statute of limitations began to run when an administrative agency’s action was “final.” In Corner Post, the Supreme Court ruled that an action becomes “final” when a plaintiff suffers an injury, rather than when a “final regulation” is released. This ruling expands the potential for plaintiffs to challenge federal agency rules and regulations that have been final for over six years.
While the full effect of these two rulings remains to be seen, it is highly likely that the agricultural industry will be impacted by the Supreme Court’s decisions. Importantly, the rulings fundamentally change how courts will resolve lawsuits challenging agency regulations for misinterpreting the agency’s statutory authority. Impacts are most likely to be felt in areas of the law, such as nutrition programs, dominated by statutes with relatively ambiguous language where Congress has relied on agency regulations to fill in specifics.