Written Testimony of
Renee L. Giachino
General Counsel and Senior Vice President,
Center for Individual Freedom
before the
Texas Joint Interim Committee on
Nutrition and Health in Public Schools

June 29, 2004

Chairman Lucio, Vice Chair Laubenberg, and Members of the Committee:

I am extremely pleased to provide written testimony as you consider issues of nutrition and health in Texas public schools. As a mother of three young children, the spouse of a physician, a parent volunteer at an elementary school and former school advisory council member, as well as an attorney who has provided frequent commentary on school related issues, my reasons for presenting this testimony are varied. My goal, however, is singular — to highlight the devastating consequences that will befall Texas public schools under the revised Texas Public School Nutrition Policy.

Texas public health crusader Susan Combs, Commissioner of the Texas Department of Agriculture, issued the revised policy on March 1, 2004, with further revisions issued June 1, 2004, touting it as an "attempt to promote a healthier environment in schools" and to counter the childhood obesity crisis in our nation. Scheduled to take effect August 1, 2004, when most, if not all, of Texas public school students and their parents are focused on summer vacation plans rather than school menus, the new policy significantly restricts the foods available on school premises and especially in cafeterias.

Unfortunately, the policy is really one more frightening attempt by a government bureaucrat to usurp the power of state and local legislators, school districts, teachers and parents to make decisions about how best to educate their children.

Under the new policy, gone are the days of pizza parties and birthday cakes in elementary school classrooms, unless it is one of three rationed annual events allowed per school year (and then, only if approved by school officials). Festive sprinkles, candy hearts and jelly beans can no longer garnish cupcakes or cookies, assuming those latter sweet treats can even be offered at all under the limitations on foods containing refined or added sugar and trans fats. "Foods of Minimal Nutritional Value" (FMNVs), which include soda water, water ices (any "…sicles"), chewing gum and most candies, are outlawed by the policy. Even elementary school fundraising projects that involve food are on the chopping block, while middle/junior high and high school food fundraisers must meet stringent nutrition standards and narrow time and place restrictions.

While some foods are banned under the policy, others are severely restricted in both serving size and how often they may be offered. For example, at the elementary school level, French fries may not exceed 3 ounces per serving, may not be offered more than once per week, and students may only purchase one serving at a time. By the beginning of the 2005-06 school year, frying, itself, will be banned altogether as an on-site cooking method in all Texas public schools that do not need to make an equipment change. A transition period until the 2009-10 school year exists for schools that do need to make an equipment change or facility modification to eliminate frying.

No food is safe from scrutiny under the policy. Schools are limited to offering only 8 ounces of whole or flavored milk, and then only if it contains no more than 30 grams total sugar per 8 ounce serving, and only 16 ounces of 2 percent, 1 percent or skim milk. If fresh fruits are not available, frozen or canned may be offered, but only if they are packed in natural juice, water or light syrup. The new rules say schools may not serve items that contain more than 28 grams of fat per serving more than twice a week, further slashing the fat ceiling to 23 grams per serving for the 2006-07 school year. Cafeteria supervisors have indicated that menus will have to be significantly revamped and existing vendor relationships reevaluated. Indeed, cafeteria workers, themselves, will be sent back to school to learn, read, and decipher complicated food labels before developing new menus.

For the moment, the restrictions only apply to food offered by the schools’ official food service programs. But ultimately, the restrictions may make lunch boxes the hottest commodity on back-to-school shopping lists as more students opt to bring their own lunches (and make their own choices about what to eat) instead of being subjected to state government mandated regulation and restriction of their lunches.

Moreover, on high school campuses with open-door lunch policies, more students will likely decide to eat off-campus, quickly dashing to their favorite restaurant or convenience store, putting these students at increased risk for personal injury. Most parents would prefer that their child find attractive choices on high school campuses instead of longing to get behind the wheel or in the passenger seat of a teenager’s car in order to find their preferred lunch.

The revised policy is wrong for several reasons. First, it takes control away from state and local legislative bodies, school districts, teachers and parents who ought to making decisions about what our children eat and drink in schools. What our children eat during and between meals should be a parental choice, not a decision requiring a stamp of approval from the government.

Second, the policy is arbitrary. There is no evidence that banning sodas, chips and candy from schools will do anything to reduce the number of overweight children. Kids will still be able to buy sodas off-campus, bring them to school in their lunchboxes, or drink them at home. A ban does nothing to teach children about enjoying food in moderation; it only labels banned foods as contraband and, therefore, makes them more desirable for some.

Our schools should not shelter our children from reality. Schools should be educating our children about nutrition and how to make healthy food choices while employing self control. We do not live in a society that is always black and white, and if we don’t arm our children with the skills to make their own choices in the gray zone, we will only make our obesity problem worse in the long run. Indeed, we will be left with a new generation of high school graduates who have learned how to point the finger at others instead of taking personal responsibility.

Moreover, it appears that in some instances food restrictions will exacerbate eating problems. A recent study of teenage girls found that restricting access to foods only makes those foods more desirable and increases the likelihood that the girl will eat it to indulge a desire even if she’s not hungry. This leads to overeating. The study found a definitive link between restrictive feeding practices and overeating, especially in girls who are already overweight. In these cases, the cycle of overeating that leads to obesity is worsened by limiting access to certain types of foods. (See Birch, Leann L., et al., "Learning to overeat: maternal use of restrictive feeding practices promotes girls’ eating in the absence of hunger." American Journal of Clinical Nutrition. American Society for Clinical Nutrition. 2003; 78: 215-20).

Finally, the policy will drain much needed financial resources from the schools, ultimately hurting the very students it is intended to help. Many secondary schools will have to make costly equipment changes. With greater numbers of students opting to brown-bag-it or leave campus, already suffering school lunch programs stand to lose a lot more. Reports indicate that schools lose $3.25 per student per day in federal money each time a student doesn't eat from the lunch line. The state's total deficit in 2001 was $23.7 million, and more recent estimates from the Comptroller’s Office put the losses more at $60 million.

Under the new policy most schools won’t be able to make up these shortfalls with vending machine contracts, whose revenue many schools currently depend on to pay for instructional programs and materials to support extracurricular activities. Ms. Combs’ own records request resulted in reports from 932 of Texas’ 1256 public schools, showing that these contracts generate about $54 million a year for Texas schools. It is unclear how these critical lost revenues will be replaced after vending machines are removed from school cafeterias. The Joint Committee on Public School Finance in Texas is already working on finding "innovative ways that the Legislature might fulfill its obligation to public education, while reducing the reliance on local property taxes." The forced funding cuts resulting from the new nutrition policy only makes the Committee’s search for solutions more difficult.

Numerous articles in Texas newspapers already report that school districts will have to consider increasing the cost of school lunches to pay for the program changes and to make up for an expected shortfall in lunchroom sales. One Texas school district spokeswoman accurately said, "Let's be honest, kids aren't going to eat what they don't like to eat." Another school official cautioned that "I think we will have some kids that will just skip lunch and others that will start bringing their own lunches from home."

Undoubtedly, there are limited steps that the Texas legislature can take in a general campaign against obesity. For example, it could enhance efforts to encourage responsible decision-making, promote increased exercise, and issue balanced dietary recommendations based on careful, unbiased science.

But the operative word in the preceding paragraph is "limited." The Texas government cannot and should not embark on a massive new regulatory scheme designed to make its students slimmer and trimmer.

First, there are countless practical problems. Texas legislators and regulators cannot possibly be expected to effectively legislate and regulate against obesity. There are too many causes and too many problems for an omnibus solution. Nor is it feasible to fight obesity through rule-making. Further, scientific understanding of human nutrition, diet needs, and the causes of obesity improves constantly. The government is ill-equipped to quickly understand and integrate these advances into its legislative and regulatory regime.

Second, and more importantly, the state government shouldn’t be in the business of telling Texans in general, and the schoolchildren in particular, what they can and cannot eat and drink. Our democracy is founded on the idea that individuals have basic freedoms. Among these, certainly, is the right to choose what we put on our plates and in our lunchroom trays.

Childhood obesity has been labeled a crisis in America. And such labels all too frequently spur a government impulse to "not just sit there, but do something." In this case, it’s incumbent on Texas to resist this impulse. Let Texas schoolchildren, their parents and educators continue to make free choices about what to eat and drink.

Certainly, the government can and should continue to encourage us to make informed choices. Certainly, the government can and should help us understand what constitutes a balanced diet. And certainly, the government can and should help us sift through the myriad of scientific (and unscientific) information about the right combinations of diet and exercise.

But Texas cannot and should not start down the road of food regulation and restriction. I recognize that there is no simple answer to solving childhood obesity. What our children need is a common sense approach that calls for more physical activity and better nutrition education. What they do not need is a policy that is inflexible, constituting a one-size-fits-all solution.

Texas schoolchildren should receive more education to help them make wiser food choices before, during, and after the school day, rather than a set of strict nutritional guidelines that simply teach them that they cannot make choices at all.

Students must also be given more opportunities for physical activity. That means more recess and required physical education. Some studies suggest that these steps may additionally help solve some of the attention deficit problems that have been on the increase in schools.

A recent study published by the University of North Carolina concludes that it is the lack of physical activity, not a surplus of "junk food" that is causing children to be overweight. (See Sutherland, Lisa A., "Health Trends in US Adolescents Over the Past 20 Years." University of North Carolina — Chapel Hill. 2003.) A study by the President’s Council on Fitness found that enrollment in physical education is on the decline, noting that among high school students, 80% of 9^th grade boys and girls are enrolled in P.E. classes; by 12^th grade, only 45% and 39% of boys and girls, respectively, are in P.E.

We must all recognize that there is no single cure-all for obesity. There are literally hundreds of causes of obesity, and there are as many solutions as there are causes. However, it’s important to note that, in and of themselves, hamburgers, hotdogs, sodas, candy, white bread, rice, potatoes, pasta, and even apple pie don’t cause obesity. Instead, with the exception of medical conditions, obesity most often results from individuals eating too much while exercising too little. I encourage all members of the committee, as you consider what role the Texas government should have in combating obesity, to closely examine the abundance of questionable studies and unsupported assertions presented in the "junk science on junk food."

Given the recent report from the Centers for Disease Control and Prevention demonstrating that obesity and diseases caused by obesity are now leading killers in the United States, there can be no question that obesity is and ought to be a major health concern for all Americans, and Texans are no exception. The central questions are now: whether and if so, how our governments should respond.

I urge the committee to respond responsibly, after considering both sides of the issue, and demanding that claims be supported by facts and evidence and not just a good cause lacking scientific merit. And, I urge you to take legislative action to delay the implementation of the policy in order to hold hearings to address the concerns of the school administrators, cafeteria workers, teachers, parents and students. Texas needs a serious debate about such a complex issue as childhood obesity.

Thank you for your time and consideration.

Renee L. Giachino is General Counsel for the Center for Individual Freedom, a non-profit, non-partisan organization dedicated to protecting individual rights and defending the free market. She is also the mother of three school children and is married to a physician.

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