On June 22, 2026, a federal district judge in the District of Columbia ruled that the US Department of Agriculture (USDA) cannot prohibit SNAP participants in five states from purchasing certain foods with their SNAP benefits. Specifically, the court found that USDA’s approval of waivers for Colorado, Iowa, Nebraska, Tennessee, and West Virginia, was a violation of the Administrative Procedures Act (APA). To read the case in its entirety, click here.
Background on SNAP
The Supplemental Nutrition Assistance Program (SNAP) is a federal nutrition program that provides low-income families with monthly benefits to purchase household foods. Originally authorized by the Food Stamp Act and formally known as the Food Stamp Program, SNAP now receives its authority from the Food and Nutrition Act of 2008. SNAP is managed by USDA’s Food and Nutrition Administration (FNA) (formally Food and Nutrition Service) but is primarily administered by state agencies. Under the Food and Nutrition Act, the Secretary of Agriculture is authorized “to formulate and administer a supplemental nutrition assistance program under which, at the request of the State agency, eligible households within the State shall be provided an opportunity to obtain a more nutritious diet through the issuance to them of an allotment.” 7 USC § 2013(a). Thus, both the federal and state governments play a role in the operation of the program. For instance, the FNA will authorize retailers who redeem SNAP benefits, and the states will determine the eligibility of participants who receive the benefits.
One of the roles assigned to the federal government in the program’s joint-administration is the authority to determine which foods are eligible for purchase with SNAP benefits. “Food” is defined by the Food and Nutrition Act as “any food or food product for home consumption except alcoholic beverages, tobacco, hot foods, or food products ready for immediate consumption.” 7 USC § 2012(k). The same definition is given for “eligible foods” in the regulations for SNAP found at 7 CFR § 271.2. These definitions are important in the most recent court decision.
History of the Waivers
Not long after Brooke Rollins’ confirmation as Secretary of Agriculture, she sent a letter to “state, tribal, territory, and local government partners” to share her “guiding principles regarding nutrition programs.” The principles included objectives like “support[ing] state innovation through approvals of waivers and pilot projects” and “strengthen[ing] strategies to encourage healthy choices, healthy outcomes, and healthy families.” This letter, along with statements from both Secretary Rollins and Department of Health and Human Services Secretary Kennedy, prompted a wave of states pursuing waivers that would redefine which foods were eligible for purchase by SNAP participants with their benefits. As of July 2026, USDA has approved 23 of these waivers.
The Food and Nutrition Act offers a few options for waivers. However, the waivers sought by the 23 states all did so under the pathway authorized in 7 USC § 2026(b). This provision allows for the creation of “pilot or experimental projects designed to test program changes that might increase the efficiency of the supplemental nutrition assistance program and improve the delivery of . . . benefits to eligible households.” Notably, 7 USC § 2026(b) allows USDA to “waive any requirement . . . to the extent necessary for the project to be conducted.” Essentially, the state waiver proposals that were submitted to USDA asked the agency to “waive” the federal definition of food, so that these states might exclude additional items from eligibility. To learn more specifics about the waiver process, click here to read NALC article “Excluding ‘Junk’ Food from SNAP Benefits.”
The Case
In March 2026, five SNAP participants from five different states challenged their states’ approved waivers and alleged that the USDA violated APA in the act of approving the waivers. Specifically, the Plaintiffs claim that USDA 1) exceeded the statutory authority granted to them in the Food and Nutrition Act, 2) failed to engage in reasoned decision-making, and 3) disregarded a mandatory procedural requirement in their approval of the pilot projects.
Count 1
First, the Plaintiffs claimed that USDA’s approval of the waivers exceeded their authority under 7 USC § 2026(b). The APA authorizes courts to “hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority or limitations.” 5 USC 706(2)(C). Essentially, the Plaintiffs are claiming that USDA’s actions were outside of the power granted to them through Section 2026(b) of the Food and Nutrition Act.
As mentioned above, Section 2026(b) allows the agency to waive requirements necessary for the creation of pilot or experimental projects that increase the program’s efficiency or improve the delivery of SNAP benefits to participants. Plaintiffs argue that the approval of waivers as pilot projects under this provision exceeds the agency’s authority “because the pilot projects do not fall within the category of projects authorized by that provision.” On the other hand, USDA argues that their waiver approval under Section 2026(b) was appropriate because it increased SNAP efficiency by improving “recipients’ levels of nutrition.”
When the question of whether an agency has exceeded its authority is before a court, “the question . . . is not what the [agency] thinks it should do but what Congress has said it can do.” Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d 672, 674 (D.C. Cir. 1973). Thus, the court will determine statutory meaning through the “traditional tools of statutory interpretation – text, structure, purpose, and legislative history.” Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 297 (D.C. Cir. 2003). This means that the court will look to the statute’s plain meaning and through its legislative history to determine what Congress intended for it to do.
The court first looked to the plain language of the Food and Nutrition Act to determine Congressional intent in the creation of Section 2026(b). Specifically, the court stated that the plain meaning of efficiency is the “quality or properly of being efficient” and efficient is “acting or producing effectively within a minimum of waste, expense, or unnecessary effort.” Further, the court notes that “efficiency” must be read in the context of the sentence, which states that a pilot project should “increase the efficiency of the supplemental nutrition assistance program.” In other words, the statute authorizes a project that would specifically increase the efficiency of SNAP as a whole, not just the agency’s ability to achieve “programs goals,” such as heightened nutrition for participants.
The court then looks at the remainder of the provision for context. 7 USC 2026(b) also authorizes pilot projects to “improve the delivery” of SNAP benefits, which the court categorizes as a “logistical, administrative goal.” Further down in the provision, it also lists four “permissible projects,” including those that 1) improve program administration; 2) increase the self-sufficiency of supplemental nutrition assistance program recipients; 3) test innovative welfare reform strategies; or 4) allow greater conformity with the rules of other programs than would be allowed but for this paragraph. The court notes that “improving the health and diet of SNAP recipients is not included” amount the four permissible projects. Additionally, the court considers that Section 2026(b) includes a list of example projects that would be appropriate for USDA to approve under this section. Examples include the use of identification mechanisms that do not invade a household’s privacy, or the use of voucher-type forms in place of EBT cards.
As further evidence of the Congressional intent of Section 2026(b), the court notes that an entirely different portion of the Food and Nutrition Act grants USDA the power to conduct “pilot projects to evaluate health and nutrition promotion” in SNAP at Section 2026(k). Specifically, these projects are to develop and test methods “of using [SNAP] to improve the dietary and health status” of participants and “to reduce overweight, obesity, and associated co-morbidities.” However, as the court notes, the pilot projects under this section have much stricter requirements for approval. Further, Section 2026(k) does not include the type of “waiver” language that Section 2026(b) does. This means that under this mechanism, USDA would not be authorized to waive the definition of “food” found in the Food and Nutrition Act. Section 2026(k) includes examples of the types of pilot projects that could be authorized under it, including incentives to authorize SNAP retailers to increase healthy foods available at their stores or incentives to SNAP participants at the point of purchase for buying fruits, vegetables, or other healthful foods.
Through an intensive recapping of the Food and Nutrition Act’s legislative history, including Congressional conference reports and Senators’ statements about the amendments that added Section 2026(b) and (k), the court concludes, “Congress gave the Secretary authority to approve pilot projects related to administrative efficiency of the then-food stamp program, it cabined that authority to certain related purposes, and then, when it wanted the Secretary to start addressing the ‘dietary and health status of participants, it ‘add[ed] a new section that authorize[d]’ the Secretary to do so.” In the simplest of terms, the court reasons that if Congress had intended for Section 2026(b) to authorize USDA’s approvals of pilot projects that elevate the nutrition levels of SNAP participants, it wouldn’t have later added a separate section focused on nutrition-related pilot projects.
Since the plain meaning nor legislative history indicate that Section 2026(b) authorized USDA to approve waivers that redefine “food,” the court found that USDA exceeded their authority in doing so. Thus, the court set aside the approvals and ordered the agency to redesign pilot projects that are aligned with the statute.
Count 3
Bypassing Count 2, the court next looked to the Plaintiffs third claim that the agency failed to meet the requirements of 7 CFR § 282.1(b). This section of USDA regulations requires that “at least 30 days prior to the initiation of a demonstration project, [FNA] shall publish a General Notice in the Federal Register if the demonstration project will likely have a significant impact on the public.” In other words, the “demonstration project,” or pilot project approved under 7 USC § 2026(b), is required be posted for a certain amount of time in the Federal Register if it is likely to “significantly impact the public.” The court notes that it is “undisputed” that USDA did not publish a notice in the Federal Register about the food-restriction waiver approvals. The agency argues that there was no need for notice because their approval of these waivers was not likely to reach the threshold of having a significant impact on the public. Further, in a the agency claims that the notice requirements of 7 CFR § 282.1(b) are not applicable because these waivers will only “limit the accessory food items that SNAP households residing in implementing States can purchase with SNAP.”
Additionally, USDA argues that under Auer deference the decision to withhold notice is one that calls for “deference to the agency’s interpretation of its own regulations.” In other words, USDA claims that it should be allowed, as a federal agency to be its own interpreter of what those regulations mean. In, Auer v. Robbins, 519 U.S. 452 (1997), the US Supreme Court ruled that courts should defer to the agency’s reasonable interpretation of its own ambiguous regulation. However, in Kisor v. Wilkie, 588 U.S. 558 (2019) the Supreme Court laid out a test to determine when Auer deference is appropriate. The test’s three prongs include:
- Is the regulation at issue genuinely ambiguous?
- If there is genuine ambiguity, is the agency’s reading still reasonable?
- Consider three markers for identifying inappropriate deference: 1) the regulatory interpretation is actually made by the agency; 2) agency interpretation in some way implicates its substantive expertise; 3) the agency’s reading reflects a fair and considered judgement.
In this case, after applying Kisor’s test, the court determined that Auer deference is not applicable. First, the court considered prong one, whether 7 CFR § 282.1(b) was “genuinely ambiguous.” To determine this, the court looked to the plain meaning of the phrase “will likely have a significant impact on the public.” The court found that significant meant “having or expressing a meaning, meaningful, or important, notable, valuable,” impact is the “effect of one thing upon another,” and public is “the community or people as a whole.” Thus, the plain meaning indicates that pilot projects are required to be published in the Federal Register “when it is likely to have meaningful effect on the people or community within its reach.” As a result, the court found that the plain meaning of “significant impact on the public” was not genuinely ambiguous.
Based on the plain reading, the court determines that prong 1 of Kisor fails. Nonetheless, it considered USDA’s argument that the approved waivers will not have a significant impact because they do not “change SNAP eligibility criteria, allotment levels, or access to staple foods.” The court disagreed, giving several reasons why the approved waivers will have a significant impact on the public. Examples the court gave include that the waivers apply to 100% of SNAP participants in the five states with no opt-out options, they were accompanied by large communication and education efforts to both participants and retailers, they required evaluations on the waivers’ effectiveness, and they were rolled out with rhetoric that emphasized the need to improve the diet-related “chronic disease epidemic.”
Because the court felt that the plain meaning of 7 CFR § 282.1(b) was not genuinely ambiguous, the first prong of Kisor failed and the court did not consider the other two prongs. Therefore, the agency is not owed Auer deference for its interpretation, and the court determined that its failure to post a notice in the Federal Register violated its regulatory requirements.
Count 2
Last, the court turned to the Plaintiffs’ claims that USDA acted arbitrarily and capriciously by approving the waivers under 7 USC § 2026(b). However, because it already determined that the agency exceeded its authority in approving the waivers under Section 2026(b), the court declined to address this claim.
Next steps
The court has set aside the approved waivers and sent them back down to the agency to “design pilot projects that accord with the statute.” This means that SNAP participants in Colorado, Iowa, Nebraska, Tennessee, and West Virginia will not be prohibited from purchasing foods and beverages restricted in their state’s waivers. This will not extend to the 18 other approved state waivers; however, it might lead to other SNAP participants challenging the waivers on similar claims.
The court specifically said that its decision was not a comment on whether the idea of these waivers was good or bad policy. Instead, the court articulated that the policy needs to be implemented in a lawful way. In the future, the agency might take steps to use another mechanism for restricting the types of food eligible for purchase with SNAP benefits. On the other hand, USDA might appeal this decision. The agency has not yet made a statement about its intentions regarding an appeal, but it has until August 21, 2026 to file.