Administration and Finance
Commissioner's Office
District Support
Educational Options
Instructional Support
Kaleidoscope Collective
Legal
Planning and Research
Strategic Initiatives
Student Assessment
On April 25, 2024, the United States Department of Agriculture Food and Nutrition Service published the final rule titled Child Nutrition Programs: Meal Patterns Consistent With the 2020-25 Dietary Guidelines for Americans . Among other provisions, this rule codifies Buy American requirements previously included in policy guidance as well as establishes a phased-in food cost cap on the purchase of non-domestic products that meet one of the two limited exceptions of the Buy American Provision.
The Buy American Provision outlined in the National School Lunch Act and regulations found at 7 CFR 210.21(d) and 7 CFR 220.16(d) require School Food Authorities (SFAs) to purchase, to the maximum extent practicable, domestic commodities or products.
A domestic commodity or product is defined as an agricultural commodity that is produced in the United States. It also includes processed food products in which "over 51 percent of a food product (by weight or volume) must consist of agricultural commodities that were grown domestically. The food product must also be processed domestically" (7 CFR 210.21(d)(1) ).
The Buy American Provision applies to the National School Lunch Program (NSLP) and School Breakfast Program (SBP) and to all SFA procurements for domestic commodities or products served in the NSLP or SBP, even if purchased on the SFA's behalf through a Food Service Management Company or procurement agent.
Compliance with the final rule requires SFAs to track all applicable non-domestic food purchases and all commercial food costs beginning in school year 2025-2026.
The purchase of a non-domestic product is only allowable in limited circumstances in which one of the two limited exceptions to the Buy American Provision applies:
The product is listed on the Federal Acquisitions Regulations Nonavailable Articles list (48 CFR 25.104) and/or is not produced or manufactured in the U.S. in sufficient and reasonably available quantities of a satisfactory quality.
Competitive bids reveal the costs of a domestic product are significantly higher than the non-domestic product.
SFAs must document the use of exceptions to purchase non-domestic products and must be able to produce this documentation upon request.
The new regulations outlined in the Final Rule establish thresholds for SFAs that use limited exceptions to purchase non-domestic products. These thresholds will limit the purchase of non-domestic foods as a percentage of total commercial food costs and will be phased in over 7 school years. The non-domestic food cost caps are as follows:
Compliance with the Buy American Provision food cost cap will be reviewed during an SFA's administrative review process and must be calculated by aggregating all applicable non-domestic food purchases and all commercial food purchases made during the prior school year. Additionally, during a procurement review, SFAs are required to provide copies of procurement documentation that demonstrate that Buy American Provision language was used in applicable solicitations and contracts.
The DESE Office of Food and Nutrition Programs (FNP) has developed the following Buy American Provision resources that will be made available to SFAs over the course of the 2025-2026 school year:
Updated Nuts and Bolts On-Demand Course: Introduction to the Buy American Provision
Updated Sample Buy American Provision Solicitation and Contract Language available in the DESE Security Portal's Document and Reference Library
While tracking all non-domestic food purchases in school year 2025-2026, SFAs have the discretion to determine an effective tracking mechanism that allows for the ability to:
The USDA has made available an optional template for manually documenting the purchase of non-domestic food. Outside of this exceptions tracker template , SFAs are also responsible for maintaining proper documentation justifying the use of a limited exception for non-domestic food purchases.
FNP has completed a procurement on behalf of Massachusetts Child Nutrition Programs for a web-based tracking tool called FoodTrails which will allow SFAs to track the geographic origin of food purchases through the upload and analysis of standard industry sales reports (velocity reports) through a user-friendly interface.
Through the use of FoodTrails, SFAs will reduce the burden of manually tracking individual non-domestic food purchases. Leveraging FoodTrails will allow SFAs to generate a report that demonstrates the SFA's aggregate non-domestic food purchases and total commercial food cost, which can be used to (a) calculate an SFA's percentage of commercial food costs from non-domestic foods and (b) determine compliance with the Buy American Provision food cost cap.
SFAs will have the opportunity to participate in a FoodTrails pilot program during SY2025-2026 at no cost, on a first-come, first-serve basis. FNP will release guidance for signing up and participating in the FoodTrails pilot program via memorandum later this Fall 2025.
Massachusetts Department of Elementary and Secondary's Office for Food and Nutrition Programs offer support to school districts as they implement these changes. Participate in the most current Communication Plan offering to ask questions and learn more about updates to federal and state regulations. For questions regarding the Buy American Provision, or gaining access to the newsletter, town hall, or office hours series, please contact Nutrition@mass.gov .
This institution is an equal opportunity provider.