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‘Buy American’ and ‘Buy Local’ Requirements Confusing School Foodservice Buyers…Chilean Fresh Fruit Association Speaks Out

Jim Prevor’s Perishable Pundit, February 19, 2010

Elementary and secondary school foodservice programs are enormous purchasers of food and have enormous influence on the next generation of shoppers, so what goes on in school foodservice really matters.

One group to recognize this priority and realize there is some confusion on what the rules and regulations require is the Chilean Fresh Fruit Association, which issued this notice to address the confusion head on:

Chilean Fresh Fruit Association Gets Clarification on the USDA “Buy American” School Foodservice Provision

As the winter progresses and U.S. supplies of such well-liked and nutritious fruits as blueberries, peaches and grapes wane or are unavailable, many school foodservice operations are keeping fresh fruits on the lunch menu with ample supplies from Chile.

“Yet some school districts unwittingly are hesitant to fill the seasonal gaps with fruit from Chile because of a misunderstanding regarding the Buy American provision in the USDA’s governance of the National School Lunch and School Breakfast Programs,” said Tom Tjerandsen, Managing Director North America for the Chilean Fresh Fruit Association.

Because of this confusion, the CFFA has reviewed the guidance issued by USDA on this question. That guidance makes it clear that schools can purchase summer fruits from Chile in the winter when U.S. supplies are not adequate to meet the need.

The USDA’s document states, “The Department shall require that a school food authority purchase, to the maximum extent practicable, domestic commodities or products.” But sometimes it is not possible, much less practicable, to buy domestic commodities, especially in winter time. There is simply not enough fresh fruit to go around from domestic sources, or the cost of domestic fruit is too high.

To address the issue, the USDA periodically issues clarification memos. The Q&A section of one of those memos specifically addresses those two situations:

Question: Are there any exceptions to the requirements of the Buy American provision?

Answer: Yes. While rare, two situations which may warrant a waiver to permit purchases of foreign food products include: 1) the product is not produced or manufactured in the U.S. in sufficient and reasonable available quantities of a satisfactory quality; and 2) competitive bids reveal the costs of a U.S. product is significantly higher than the foreign product.

“Many school districts already have that understanding, and their students are enjoying a wide range of healthful fresh fruits,” Tjerandsen said. “We hope that the school officials who have, up to now, misunderstood the provision and its exceptions can and will rest assured and begin to bring the fruits back onto the lunch menu.”

The guidance clearly allows for the purchase of counter-seasonal items. In fact, when you read the things states typically send out to their school districts, like this document from Colorado, one realizes that, as a practical matter, the “Buy American” provisions are unlikely to have much practical effect on fresh produce procurement at all.

Fresh produce is typically imported because it is out of season at that time domestically, it is never grown in the US commercially or because it is significantly cheaper to import than to buy domestic.

This turns the requirement into as much of a record-keeping requirement as anything else. But it is a shame if school foodservice directors prevent healthy habits from forming by dropping products. A child acclimated to eating grapes every day at lunch all during the school year has a better chance of continuing that habit when school is out and for the rest of his or her life.

What is probably going to be more of an issue for the commercial produce industry is the local movement, as represented in Eat Smart-Farm Fresh! — this initiative, building momentum for a decade now, encourages local purchases:

Section 4303 of the Farm Security and Rural Investment Act of 2002 adds a new paragraph (j) at the end of section 9 of the Richard B. Russell National School Lunch Act pertaining to purchases of locally produced products. The provision requires the Secretary to encourage institutions participating in the school lunch and breakfast programs to purchase locally produced foods, to the maximum extent practicable.

We are asking you and your State agencies to encourage school food authorities participating in the National School Lunch and School Breakfast Programs to purchase locally produced foods, to the maximum extent practicable, along with other foods. This provision does not absolve school food authorities of their obligation to adhere to all applicable procurement requirements.

The whole thing is, not surprisingly, political. It is illegal to have geographic requirements on school procurement, but the schools are supposed to try to buy local.

Small farms are mentioned liberally, but the fact that all local farms are not small farms, is basically ignored. And all these terms — local, small, etc. — seem subject to many definitions or have no definitions at all. And there is no money to overpay for things in order to get locally produced product.

Still, the political writing is on the wall. Only a few states are national shippers of scale, but every state has local growers, so every initiative in this area gets vast political support.

We think it is horribly unfair. Broccoli or strawberry producers should compete on quality, service and price; we should not have laws creating sinecures based on geography. If local producers can compete, terrific. And we would have no objection to, say, expanding funding for the Ag colleges and Agricultural Extension so these institutions and agents could better help growers use the best technology to grow productively — wherever they may be. But to tell a farmer from California or Florida that their product, even if better quality and less expensive, is not going to be purchased because of Federal procurement rules is terrible. It hurts the children, who get lower quality product, and the taxpayer, who has to pay more to purchase more expensive product. That is a political choice that makes us all worse off.

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