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Court Upholds Eligibility Check, Limits Ban on Soft-Drink Sales

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Washington--In a ruling handed down last week, Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia upheld the Agriculture Department's rule requiring school systems to verify the eligibility of low-income pupils for free or reduced price lunches.

The same day, a three-judge panel of the U.S. Court of Appeals for the District of Columbia overturned a usda regulation that prohibited the sale of soft drinks anywhere on school premises until the end of the final meal period. But the two-to-one ruling upheld the ban on selling soft drinks in areas where they would compete directly with foods sold in federally subsidized feeding programs. The 1979 regulation also barred the sale of water ices, chewing gum, and certain candies during the same period; the ruling affected only soft drinks.

The eligibility rule, which requires schools to verify 3,000 or 3 percent of the applications for free or reduced-price meals, was challenged by four individuals, the school boards of New York City, Milwaukee, Cleveland, Detroit, and Pittsburgh, and the National Anti-Hunger Coalition. The case, Sargent v. Block, challenged the verification requirement on several counts.

Binding Interim Regulations

The central argument, however, was that Agriculture Secretary John R. Block violated several federal laws by issuing the binding interim regulations before completing a pilot study of their effectiveness. The plaintiffs also argued that the regulations would discourage participation in the program.

In his Nov. 15 ruling, U.S. District Judge Thomas F. Hogan wrote, "The court is unwilling to find that the Secretary erred by deciding he need not undertake a flexibility analysis." However, the ruling said, "The court is concerned about the inhibiting effect which verification may have on participation in the program. To the extent that plaintiffs are harmed by the absence of a statutory mandate that a pilot study be completed prior to the commencement of verification, their complaint may more appropriately be directed at Congress."

Pilot Study by December

An attorney for the Food Research and Action Center, a Washington-based advocacy group that represented the plaintiffs, said he had not yet discussed the possibility of an appeal with the plaintiffs. The usda has indicated that a pilot study will be completed by December, and in view of that, the plaintiffs may decide that an appeal is not worthwhile.

The challenge to the usda ban on the sale of soft drinks in schools that participate in federal feeding programs was filed by the National Soft Drinks Association, a trade group representing manufacturers. The regulation was "arbitrary, capricious, and an abuse of discretion" because it singled out certain foods, the association claimed.

The central question in the case, National Soft Drink Association v. Block, was defined by the court as "the time and place issue."

The soft-drink association contended that the law did empower the Agriculture Secretary to restrict the sale of foods that competed with those sold in the federally subsidized programs.

"We have no trouble in finding that soda pop, if offered at the same time and place as programmed foods, would be in competition with those foods for both the child's coins and appetites," the opinion states.

But the part of the rule that barred the sale of soft drinks throughout the school until the end of the meal period, the court ruled, did exceed the statutory authority.

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