ADE Director's Communication Memo Form

Memo Number : FIN-09-044

Date Created : 01/23/2009


Co-op Directors
other: Child Nutrition Directors

Type of Memo: Regulatory
Response Required: No
Section:   Fiscal and Administrative Services - William J. Goff, Assistant Commissioner
Final Fluid Milk Substitution Rule

Regulatory Authority:
USDA Memo SP-02-2009; Amendments to 7 CFR 210.10(g) and 7 CFR 220.8(d)

Contact Person:
Alicia Casteel

Phone Number:


The Arkansas Department of Education (ADE) Child Nutrition Unit (CNU) has received the following final rule FLUID MILK SUBSTITUTIONS IN THE SCHOOL NUTRITION PROGRAM (73 FR 52903) from United States Department of Agriculture (USDA) Food and Nutrition Service (FNS).

Currently there is no product available which meets the rule’s requirements but ADE CNU is required to provide updates on USDA rule changes. In the event that a product does become available these rules must be followed.

 Continues the current requirements on meal variations for students with disabilities in the National School Lunch Program and School Breakfast Program;
 Allows school food authorities (SFAs)/local education agencies (LEAs) discretion to offer fluid milk substitutions to students with medical or other special dietary needs that do not rise to the level of a disability;
 Requires that nondairy beverages offered as fluid milk substitutes be nutritionally equivalent to fluid milk and provide specific levels of calcium, protein, vitamins A and D, magnesium, phosphorus, potassium, riboflavin, and vitamin B-12; and
 Allows SFAs to accept a written statement from a parent/guardian or from a recognized medical authority*. The supporting statement must identify the student’s medical or other special dietary need that precludes cow’s milk.” (USDA Memo SP 02-2009)

A. Students WITHOUT Disabilities:
The purpose of the final rule is to ensure that individual students who are receiving an alternative for cow’s milk for cultural, ethnic, religious or ethical reasons receive the important nutrients found in milk. Other beverages, such as juice cannot be used as a milk substitute for those students without disabilities because all essential nutrients are not provided.

B. Students WITH Disabilities/Special Dietary Needs:
It is NOT REQUIRED that students with disabilities receive milk substitutions with the nutrients cited in this rule. An Arkansas licensed physician’s statement/diet order may still specify a beverage for students with disabilities which may or may not meet the nutrients cited. Lactose-free milk is still an allowed part of the reimbursable meal for students with a medical or special dietary need.

Once milk substitution products are available that meet the specific nutrient levels in cow’s milk, local districts have the authority to elect whether or not to implement this rule to offer milk substitutes for students WITHOUT disabilities.

Districts which elect to implement this rule can now accept a statement from a parent/legal guardian or from a medical authority* identifying the student’s need. PLEASE NOTE: A statement from a medical authority is still required for any meal variations, other than milk substitution, for a student with medical or other special dietary needs.

1. Compare standards of identity of fluid milk to ensure that fluid milk substitutions are nutritionally equivalent to fluid milk and provide the required calcium, protein, vitamins A and D, magnesium, phosphorus, potassium, riboflavin, and vitamin B-12. See attachment.
2. Submit product label for fluid milk substitution to CNU Area Specialist for review of nutrient content and crediting for a reimbursable meal. The district will need to receive written approval of milk substitution PRIOR to procurement and use of the product. Meals served without meeting USDA nutrient standards for milk substitution products cannot be reimbursed with federal funds. USDA may issue formal memos approving products but until this is done the district must follow this procedure.
3. Charging an additional fee for a milk substitute/alternative product for a student reimbursable meal is not allowed.
4. Amend existing SFA/LEA policy or create local SFA/LEA policy for student handbook to either ALLOW or DISALLOW milk substitutions for students WITHOUT disabilities and whether to accept a parent/guardian request for milk accommodations. These LEA policy changes and district procedures must ensure that each student WITHOUT DISABILITIES is treated the same in all district cafeterias.

For any questions regarding this rule, please call the district’s CNU Area Specialist at 501-324-9502.

*Please note: ARKANSAS MEDICAL PRACTICES ACTS AND REGULATIONS recognize nurse practitioners and chiropractors as licensed physicians.


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