## Facts

- USDA administers nutrition standards for the National School Lunch Program and School Breakfast Program through its Food and Nutrition Service.
- In 2012, USDA issued a final rule tightening school-meal nutrition standards, including phased sodium reductions (Targets 1, 2, and a final target) and a move to 100% “whole grain-rich” grain products beginning in school year 2014–2015.
- In 2017, USDA issued an interim final rule that (a) kept Sodium Target 1 through the end of school year 2018–2019 while stating the agency would take further regulatory action before requiring Target 2, and (b) allowed state-granted hardship exemptions from the 100% whole grain-rich requirement so long as at least 50% of grains offered were whole grain-rich.
- In 2018, USDA issued a final rule that (a) retained Sodium Target 1 through school year 2023–2024, (b) deferred Sodium Target 2 until after that date, (c) eliminated the final sodium target, and (d) permanently set the whole-grain requirement at 50% whole grain-rich.
- Public health organizations submitted comments opposing the 2018 changes, asserting they conflicted with the Dietary Guidelines for Americans and the 2012 standards.
- Plaintiffs sued under the Administrative Procedure Act (APA), alleging the 2018 final rule violated notice-and-comment requirements because its key rollbacks were not reasonably foreshadowed by the 2017 interim final rule.
- The parties filed cross-motions for summary judgment on the administrative record.

## Issues

1. Whether eliminating the final sodium target and permanently reducing the whole-grain requirement to 50% were a “logical outgrowth” of the 2017 interim final rule for APA notice-and-comment purposes.
2. Whether USDA violated 5 U.S.C. § 553 by adopting a final rule that differed in kind, not merely degree, from what the public was given notice to comment on.

## Decision

- Plaintiffs’ motion for summary judgment was granted; USDA’s cross-motion was denied.
- The court held the 2018 final rule violated the APA because the challenged provisions were not a logical outgrowth of the 2017 interim final rule.
- The court vacated the 2018 final rule and remanded to USDA for further proceedings.

## Legal Principles

- Under the APA, an agency must provide notice and an opportunity to comment, and the final rule must be a “logical outgrowth” of the notice such that interested parties were fairly alerted to the issues under consideration.
- A final rule fails the logical-outgrowth requirement when it substantially departs from the noticed approach in a way that commenters could not reasonably anticipate.
- Agency discussion of delaying implementation and providing flexibility does not, without clearer signaling, give adequate notice that the agency is considering eliminating an ultimate regulatory target.
- A notice describing narrow, case-by-case hardship exemptions does not, without clearer signaling, provide adequate notice of a permanent, program-wide reduction of a substantive standard.
- A serious notice-and-comment defect can warrant vacatur and remand because public participation is a required element of informal rulemaking.

## Conclusion

The court set aside USDA’s 2018 school-meals rule because the agency used a notice focused on delays and limited exemptions to justify final provisions that eliminated an ultimate sodium target and permanently reduced the whole-grain standard, depriving the public of a meaningful chance to comment on the actual policy change.


Ctr. for Sci. in the Pub. Interest v. Perdue, 438 F. Supp. 3d 546 (D. Md. 2020)