New Laws Update Nutrition Program Purchasing Rules

Lozano Smith Client News Brief
October 2017
Number 62

Governor Jerry Brown has signed four bills that update purchasing rules related to school food and nutrition programs and improve access to healthy food. Each of these bills will take effect January 1, 2018.

Senate Bill 544: Bill Offers Clarity on Food Contract Award Rules

Senate Bill (SB) 544 resolves an inconsistency between state and federal law regarding the award of contracts in support of child nutrition programs by clarifying that school districts can consider factors other than price in awarding these contracts. This new law provides school districts with flexibility in purchasing items and services for their child nutrition programs.

Existing state law requires school districts to award any contract involving an expenditure that is over the bid limit (currently $88,300) for the purchase of equipment, materials, supplies or services, other than construction services, to the lowest responsible bidder. As a condition of the receipt of federal funds for child nutrition programs, school districts must also comply with federal regulations that permit the consideration of factors in addition to price. The factors include contractor integrity, compliance with public policy, record of past performance and financial and technical resources. These differences between state and federal requirements have been a source of confusion for many districts.

SB 544 provides some clarity by modifying section 20111, subdivision (c) of the Public Contract Code to expressly allow school districts to follow federal regulations and to consider other factors in addition to price in awarding contracts in support of their federally-funded child nutrition programs. Under the new state law, price must be the primary consideration, but it does not have to be the only determining factor.

Senate Bill 557: Schools Permitted to Donate Uneaten Food

SB 557 will allow local educational agencies to provide "sharing tables" where faculty, staff and students can place prepackaged food items, uncut produce and unopened bags of sliced fruit and cartons of milk to be donated to a food bank or other nonprofit charitable organization. This bill exempts these foods from the current California Retail Food Code regulations, which prohibit food that is unused or returned after being served or sold and in the possession of a consumer, from being offered as food for human consumption. Food placed on sharing tables must first be offered to students during regular meal times before it can be donated. (See Ed. Code, §§ 49580 et seq. and Health & Saf. Code, § 114079.)

Senate Bill 730: State Will Monitor Compliance with "Buy American" Provision

SB 730 will require the California Department of Education to monitor whether school districts receiving a federal subsidy to provide free and reduced price meals are complying with the "Buy American" provision in the federal National School Lunch Act, which requires school food authorities to purchase, to the maximum extent possible, domestic commodities or products. This bill also requires the Department to provide requirements, resources and best practices on its website and to distribute federal guidance and regulations related to the Buy American provision. (See Ed. Code, § 49563.) This bill does not implicate the separate California Buy American Act that was found to be unconstitutional because it is preempted by federal law.

Assembly Bill 836: Schools May Dispense Juice from Vending Machines

Assembly Bill (AB) 836 authorizes the state Department of Public Health (DPH) to modify previous requirements of the California Retail Food Code that prohibit the dispensing of certain bulk foods from vending machines. Specifically, the bill requests that DPH modify this prohibition to permit juice stored in bulk containers to be dispensed from a vending machine under certain conditions. These specialty vending machines are purported to offer healthy food options to customers by making it easy and convenient to access freshly made vegetable and fruit juices. (See Health & Saf. Code, § 113936.)

For more information on these bills or on law governing school nutrition programs in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.
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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.