5100 Wisconsin Ave. NW, Suite 400 Washington, DC 20016 Tel: 202-686-2210 Fax: 202-686-2216 pcrm@pcrm.

org

MARK KENNEDY
Director of Legal Affairs
(202) 527-7315
(202) 527-7415 (direct fax)
mkennedy@pcrm.org
R CEIV 0
" ...."'" r, 1
March 28, 2016 Per' f ~J 2016
VIA POSTAL MAIL PERSONNEL SUPPORT SERVICES
Tracy Hogarth
Associate Superintendent
Personnel Support Services
Poway Unified School District
15250 Avenue of Science
San Diego, CA 92128

Re: Complaint Regarding Meals Served in Schools

Dear Associate Superintendent Hogarth:

The Physicians Committee for Responsible Medicine is a national non-profit organization

established in 1985. The Physicians Committee advocates for preventive medicine, supports
higher ethical standards in research, and conducts clinical research. The Physicians Committee's
membership includes 150,000 health care professionals and concerned citizens, including more
than 23,000 members in California.

The Physicians Committee has been monitoring and influencing national nutrition policies and
trends since 1991, when it issued its first recommendations on the food diagram that
accompanies the federal dietary guidelines. Since 2001, the Physicians Committee has issued a
periodic "School Lunch Report Card," analyzing the nutritional quality of menus offered by the
largest school districts participating in the USDA's National School Lunch Program.

Pursuant to the Uniform Complaint Procedures, the Physicians Committee submits the enclosed
complaints on behalf of its members who reside in Poway or who have children attending public
school in the Poway Unified School District. If the District takes any action in response to these
complaints, please notify me at the address above.

Respectfull y,

1lL!dV
MarkKenn~;Q
Enclosures
To Whom it May Concern:

Weare homeowners, residents, and parents of two children that graduated from Poway
Unified School District ("School District") High School. We are writing to file a complaint
regarding violations of California Education Code sections 49531 and 49590 and the federal
Healthy Hunger-Free Kids Act of2010.

Processed Meats are Strongly Linked to Disease

The School District serves processed meats in its schools' menus on most days.
Processed meats include bacon, deli slices, sausage, hot dogs, and any other meat products that
have been preserved with additives or otherwise manipulated to alter color, taste, and durability.

Processed meats are extremely high in sodium, which is used as a preservative. Studies
show a direct link between high-sodium diets and high blood pressure, which can lead to kidney
failure, heart failure, heart attack, and stroke. Processed meats also are high in saturated fat,
which can lead to increased risk of cardiovascular disease, obesity, and diabetes.

Processed meats can increase risk for various cancers, including pancreatic, stomach,
bladder, colon, and, most significantly, colorectal cancer. The World Cancer Research Fund, in
conjunction with the American Institute for Cancer Research, found in a comprehensive and
ongoing analysis of research that processed meats are "convincing" as risk factors for colorectal
cancer. The combination of evidence indicates a 30 to 50 percent increased risk for colorectal
cancer when consumption of these products is highest. Researchers also recently investigated the
dose-response nature of processed meat consumption and colorectal cancer risk and found that
risk increased by 21 percent for every 50 grams per day of processed meat product consumed.

Last year the World Health Organization released a report announcing that processed
meat products clearly cause cancer. Researchers from around the world examined more than 800
studies looking at the cancer-causing properties of red and processed meat. The authors
highlighted a meta-analysis that found an 18 percent increased cancer risk per 50 grams of
processed meat consumed and ultimately that processed meat products are "carcinogenic to
humans." In addition, the report noted a 17 percent increase in risk for colon cancer per 100
grams of red meat consumed and concluded that such products are "probably carcinogenic to
humans." Researchers also observed associations between red and processed meat products and
stomach, pancreatic, and prostate cancers.

Violation of California Education Code

California Education Code section 49531 mandates that a "nutritionally adequate" lunch
and/or breakfast under the federal National School Lunch Program "incorporates the current
United States Dietary Guidelines/or Americans." California Education Code section 49590
further requires "that the nutrition levels of meals served to school age children pursuant to the
National School Lunch Act be of the highest quality and greatest nutritional value possible."
Thus, any meal served pursuant to the National School Lunch Act must meet both the minimum
standards set by the Dietary Guidelines and the more stringent levels set by the California
Education Code.

The School District violates this mandate by serving processed meats, which have
nutritional levels that are almost as far as can be from the "highest quality and greatest nutritional
value possible" and are linked to cancer, cardiovascular disease, and high blood pressure.

Violation of Federal Law

The federal Child Nutrition and WIC Reauthorization Act of 2004 established, and the
federal Healthy Hunger-Free Kids Act of2010 (HHFKA) strengthened, a requirement under
which each local education agency, such as a school district, participating in the National School
Lunch Program must develop a local school wellness policy that promotes the health of students
and addresses the growing problem of childhood obesity. The responsibility for developing a
local school wellness policy is placed at the local level so the unique needs of each school under
a particular school district's jurisdiction can be addressed. Local wellness policies must include
specific goals for nutrition promotion and education. School districts must review and consider
evidence-based strategies in determining these goals.

The School District is a local education agency under these federal laws and is therefore
required to issue a local wellness policy that meets the minimum legal standards of promoting
health and addressing childhood obesity by including specific goals for nutrition promotion and
education and basing said policy on evidence and dietary guidelines.

The School District's local wellness policy violates HHFKA by failing to identify
processed meats as a problem despite strong evidence that processed meats are unhealthful.
Further, the wellness policy fails to discuss how and when processed meats will be phased out of
school meals.

Dated: March 23,2016 .~Tracy( ~JJ4z_

hilds
Address: 12717 Triumph Drive

Dated: March 23, 2016

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Address: 12717 Triumph Drive
Poway, CA 92064

BOARD
Kimberley
Michelle
Andrew
Charles
OF EDUCATION
Beatty
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PERSONNEL SUPPORT

Associate
SERVICES

Tracy Hogarth
Superintendent

T.J. Zane thogarth@powayusd.com

SUPERINTENDENT 858-521-2761
John P. Collins, Ed.D. POWAY UNIFIED SCHOOL DISTRICT FAX 858-485-1355

VIA EMAIL

June 8, 2016

Mark Kennedy
Director of Legal Affairs
Physicians Committee for Responsible Medicine
mkennedy@pcrm.org
5100 Wisconsin Ave., NW, Suite 400
Washington, D.C., 20016

Dear Mr. Kennedy,

Please accept this correspondence as the District's Decision addressing your uniform
complaint made on behalf of Tracy Childs and Steven Sarnoff regarding the serving of processed
meats to students within the District's food and nutrition programs. Complaints regarding Child
Nutrition Programs [established pursuant to Education Code sections 49490 - 49570] alleging a
violation by the local agency of a federal or state law or regulation is governed by Title 5,
California Code of Regulations, sections 4600, et seq. (See 5 Cal. Code Regs., 4610, subd. (a).)
Under the state regulations, complaints regarding food programs are investigated and decided in
compliance with section 4631 of Title 5, California Code of Regulations.

A. Allegations within the Pbysicians Committee Complaint

The Physicians Committee for Responsible Medicine (PCRM) sent correspondence to the
District through Mark Kennedy, its counsel and Director of Legal Affairs in Washington, D.C.
This correspondence states that PCRl\Il "submits the enclosed complaints on behalf of its
members who reside in Poway or who have children attending public school in the Poway
Unified School District." The Complaint itself is signed by Tracy Childs and Steven Sarnoff,
whose children formerly attended school within the District.

The Complaint, received by the District on April 1, 2016:. alleges that that "the District
serves processed meat on most days." This meat includes "bacon, deli slices, sausage, hot dogs,
and any other meat products that have been preserved with additives .... " The Complaint goes on
to state that the World Health Organization (WHO) released a report last year indicating that
processed meat products clearly cause cancer.

Based upon the District's service of processed meats to students and the WHO report, the
Complaint alleges that the District is in violation of several laws, including Education Code
sections 49531,49590, and the federal Healthy Hunger-Free Kids Act (HHFKA) of 201 0. In
keeping with Title 5 of the California Code of Regulations, section 4631, the District, though its
legal counsel, has investigated this complaint. Complainants agreed to give the District until

DISTRICT OFFICE: 15250 Avenue of Science, San Diego, CA 92128-3406 (858) 521-2800 www.powayusd.com
June 8, 2016 to issue its Decision. This correspondence shall serve as the District's Decision on
the Complaint.

This office has worked with District counsel and staff to obtain information concerning
the Complaint regarding the District' s food and wellness program. The District notes that its
counsel emailedMr.KennedyatPCRlVIandrequestedtomeetwithMs.Childs and Mr. Sarnoff
in person concerning their allegations, and to obtain documentation they allege support their
allegations. Mr. Kennedy responded, "As you know, I represent Mr. Sarnoff and Ms. Childs
with regard to the administrative complaint and therefore any and all communication about their
concerns must go through me. To that end, I am happy to convey to them any settlement offer or
answer any questions you may have regarding their concerns. In the meantime, below are short
summaries and citations to scientific publications documenting the dangers of consuming
processed meats. If you need help obtaining specific sources, please let us know and we will
send them to you." Mr. Kennedy's response included citations to various studies and journal
articles concerning processed meat consumption. Mr. Kennedy did not offer to make Ms. Childs
or Mr. Sarnoff available to be interviewed. The District has reviewed the information provided
by PCk.M and has also reviewed additional information from the World Health Organization.

Based upon the information obtained, the District finds the following facts:

1) The District receives federal funding for food and nutrition from the U.S.D.A, and state
funding from the State of California. The California Department of Education (CDE) oversees
and implements the funding program for the State of California. In order to qualify for this
federal funding, the District must demonstrate to the CDE that it meets federal and state
nutritional and dietary requirements, which are promulgated by the federal government and the
California Department of Education (CDE).

2) In meeting its legal obligations,the District has implemented a School Wellness Policy and
Administrative Procedure (BP 5.31, and AP 5.31.1). Under Board Policy 5.31, "Nutrition
standards adopted by the District for all foods and beverages sold to students, including foods
and beverages provided through the District's food and nutrition program, student stores,
vending machines, fundraisers, or other venues, shall meet or exceed federal, state, and local
district nutrition standards."

3) The District's Wellness Policy and Administrative Procedures including the Policy and
Administrative Procedures governing its comprehensive Food and Nutrition Program (BP 6.60,
et seq.; AP 6.60.1) et seq.) Board Policy 6.60 indicates that "foods and beverages available
through the District's food and nutrition program shall be: ....
1. Carefully selected so as to contribute to students' nutritional well-being and the
prevention of disease.
2. Planned to meet or exceed nutritional standards specified in law and administrative
procedures. (42 U.S.C. 1751-1791.)"

2
"

4) The World Health Organization (WHO)'s International Agency for Research on Cancer
(IARe) issued a report on October 26, 2015, concerning the carcinogenicity of the consumption
of red meat and processed meat. The report concluded that processed meat was classified as
carcinogenic to humans (Group 1), based on sufficient evidence in
humans that the consumption of processed meat causes colorectal cancer. For an individual, the
risk of developing colorectal cancer because of their consumption of processed meat remains
small, but this risk increases with the amount of meat consumed," according to Dr. Kurt Straif,
Head of the rARe Monographs Program.

5) According to the rARe, although it has classified processed meat in the same category as
causes of cancer such as tobacco smoking and asbestos (lARC Group 1, carcinogenic to
humans), this does NOT mean that they are all equally dangerous. The lARC classifications
describe the strength of the scientific evidence about an agent being a cause of cancer, rather
than assessing the level of risk. Thus, even though smoking is in the same category as processed
meat (Group 1 carcinogen), the magnitude or level of risk associated with smoking is
considerably higher (e.g., for lung cancer about 20 fold or 2000%,\ increased risk) from those
associated with processed meat. An analysis of data from 10 studies, cited in the rARC report,
showed an 18 percent increased risk in colorectal cancer per 50 grams (1.76 oz.) processed meat
increase per day. 50 grams is equivalent to about 6 slices of bacon or one hot dog. To put this in
perspective, according to the Global Disease Burden Project 2(12) over 34,OQO _QCl.DGGx.de_c.1lhs
per
year worldwide are attributable to high processed meat intake vs. 1 million deaths per year
attributable to tobacco smoke.

6) Thus, although the rARC used clearly defined guidelines to identify hazards (qualitative
evaluation), i.e., whether an agent can cause cancer, IARC did not assess level or the magnitude
of risk (quantative assessment). In other words, the IARC/WHO evaluates the evidence not risk.
As stated by the Director of IARC Christopher Wild, "The IARe evaluations are important in
enabling governments and international regulatory agencies to conduct risk assessments, in order
to balance the risks and benefits of eating red meat and processed meat and to provide the best
possible dietary recommendations. 55

7) The IARe does not make health recommendations. According to the IARC, National
governments and WHO are responsible for developing nutritional guidelines. The 2015
evaluation by rARC reinforces a 2002 recommendation from WHO that people who eat meat
should moderate the consumption of processed meat to reduce the risk of colorectal cancer.
Some other dietary guidelines also recommend limiting consumption of red meat or processed
meat, but these are focused mainly on reducing the intake of fat and sodium, which are risk
factors for cardiovascular disease and obesity.

8) As the IAkC has indicated, it is the responsibility of the U.S, government to conduct risk
assessments in order to balance the nutrition of processed meats. In contrast, the District is a
local agency which must meet or exceed state regulations and guidelines mandated by the State,
which must follow federal law.

9) According to the IARe, individuals who are concerned about cancer could consider reducing
their consumption of red meat or processed meat until updated guidelines related specifically to
cancer have been developed.

3
 10) As part of its nutrition program, the District serves meals in elementary, middle and high
school campuses. The District serves processed meats as part of its school menus, in 1. 75 to 2
ounce portions per meal, if offered. At each level of schooling, however, the District also
provides 2 vegetarian meal options for students who do not want to consume meat as a protein.
For example, at the elementary school level, out of the four choices of meals per day, two of
those meal choices are vegetarian. Those who do not want to eat meat, whether processed or not,
are given a choice of foods, and thus are not required to purchase processed meats offered during
mealtime.

11) In March, 2015, the California Department of Education conducted a detailed 2-week
Administrative Review CAR) of the District Food and Nutrition Program. The findings of the
A~ were provided to the District in late May, 2015. According to Donna Caeg (Child Nutrition
Consultant, Nutrition Services Dept., CDE), who conducted the AR, the CDE did not find any
nutritional deficiencies or violations of dietary regulations on the part of the District's meal
program to students during the school day. In other words, the District is meeting or exceeding
all state nutritional and dietary regulations for its meal service, which includes offering students
processed meats. In addition, the CDE approved the District's menus as meeting the federal
nutrition standards prescribed by the USDA in accordance with the Healthy, Hunger-Free Kids
Act (HHFKA) of2010,

As part of California's "Child Nutrition Act," Education Code section 49531, effective in
late 1997, states in full: "Any child nutrition entity may apply to the State Department of
Education for all available federal and state funds so that a nutritionally adequate breakfast or
lunch, or both, may be provided to pupils each school day at each school in the districts or
maintained by the county superintendents of schools, or at private schools and parochial schools
and to children receiving child development services. The State Board of Education shall adopt
rules and regulations for the operation of lunch and breakfast programs in school districts. A
child nutrition entity which receives state funds pursuant to this article, shall provide
breakfasts and lunches in accordance with state and federal guidelines." (Emphasis added.)

Under this statute, "a nutritionally adequate breakfast, for the purposes of this article, is
one that qualifies for reimbursement under the federal child nutrition program regulations, meets
a minimum of one-fourth of the current Recommended Dietary Allowance established by the
National Research Council, and incorporates the current United States Dietary Guidelines for
Americans. A nutritionally adequate lunch is one that qualifies for reimbursement under the
federal child nutrition program regulations, meets one-third of the Recommended Dietary
Allowance established by the National Research Council and incorporates the current United
States Dietary Guidelines for Americans." (Ed. Code, 49531.)

In addition; Education Code, section 49590, effective January 1, 1998, states in full: "The
State Department of Education shall ensure that the nutrition levels of meals served to schoolage
children pursuant to the National School Lunch Act be of the highest quality and greatest
nutritional value possible." This section does not pertain directly to local educational agencies,

4
.
,

such as the District. Rather, it is directed to the California Department of Education, which
issues regulations which are part of Title 5 of the California Code of Regulations.

In summary, any meal served by the District must meet both the federal dietary
guidelines, as well as the more stringent criteria set forth by the State regulations.

The state guidelines are as follows, with notes on differences in the federal guidelines:

'~A nutritionally adequate lunch or a nutritionally adequate breakfast shall contain, as a

minimum, each of the following food components in the amount indicated as modified for age
level pursuant to Section 15561:
(a) One-half pint of fresh, fluid milk as a beverage or on cereal or used in part for each
purpose.
(b) Two ounces of lean meat, poultry, fish, or cheese; or one egg; or one-half cup of
cooked dry beans or peas, or 4 tablespoons of peanut butter; or any equivalent quantity of any
combination of the above listed foods or acceptable alternates. To be counted in meeting this
requirement, such foods shall be served as a main dish or as part of a main dish plus one other
menu item. (note: Federal guidelines use ounce equivalents)
(c) Three-fourths cup of two or more vegetables or fruits, or both. Full-strength vegetable
or fruit juice may be counted to meet not more than one-fourth cup of this requirement. (note:
Federal guidelines use age-specific quantities of vegetables and fruit)
(d) One slice of whole grain or enriched bread; or an equivalent serving of cornbread,
biscuits, rolls, tortillas, or acceptable alternates, made of whole grain or enriched flour or meal;
or three-fourths cup or one-ounce serving of whole grain cereal or enriched or fortified cereal; or
any equivalent quantity of any combination of these foods. (note: Federal guidelines use ounce
equivalent rather than slice)
(e) One teaspoon of butter or fortified margarine." (note: Federal guidelines no longer
require butter! margarine)

(5 Cal. Code Regs., 15558; 7 C.F.R. 210.10; 7 C.F.R. 220.8.) Thus, every meal served by the
District to students must meet these guidelines, with certain exceptions not pertinent here. There
is nothing in the guidelines concerning processed meat.

The HHFKA (42 U,S,C., 1751, et seq.) is primarily an appropriations provision, and the
statutory scheme and regulations do contain any language concerning processed meat. The
HHFKA mandates that schools receiving federal funds have a wellness policy.

1. The DIstrict is in compliance with Education Code section 49531. The District is not in
violation of section 49531 by offering processed meats as part of meals served to students.

2, The District is not in violation of Education Code section 49590 by offering processed
meats as part of meals served to students. According to the CDE, the District is meeting the
regulatory standards set forth in the California Code of Regulations.

5
3. The District is not in violation of the HHFKA by offering processed meats to students for
meals. The HHFKA does not prohibit the sale or provision of processed meats to students. The
District maintains a comprehensive Wellness policy, and has met the nutrition and dietary
standards according to the CDE.

The District should continue to monitor the state and federal regulations and guidelines
for nutrition and dietary rules in light of the WHO report. In the event that the regulations or
guidelines change with respect to the service of processed meat to students, the District should be
prepared for that change.

]F. Appeal Rights

Under Title 5, California Code of Regulations section 4632~ the Complainants have the
right to appeal the conclusions reached in this Decision to the California Department of
Education ("Departmenf').

Except for complaints under Title 5 California Code of Regulations section 4681 and
4682 regarding instructional materials and teacher vacancies or misassignments, a complainant
may appeal to the Department by filing a written appeal within 15 days of receiving this
Decision,

If a written appeal is submitted, a complainant shall specify the basis for the appeal of the
Decision and whether the facts are incorrect and/or the law is misapplied. The appeal shall be
accompanied by: (1) a copy of the locally filed complaint; and (2) a copy of the Decision.

If the Department determines the appeal raises issues not contained in the local
complaint, the Department will refer those new issues back to the local educational agency for
resolution as a new complaint. If the Department determines that the Decision failed to address
an issue raised by the complaint, the Department will refer the matter back to the District to
make the necessary findings and conclusions on any issue not addressed, The District will
address the issue within the time set by the CDE from the date of the referral.

Sincerely, '~/r'~ :,1

\ "

d; atJJJ' ,t',",J71
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Tracy Hogarth
Associate Superintendent
Personnel Support Services

Ilh

cc: Mel Robertson, Acting Superintendent

Malliga Tholandi, Associate Superintendent, Business Support Services
Sabre (Lou) Lewis, Director of Food and Nutrition