Dear Lunch Lady, I want more sodium and saturated fat for lunch!

The Healthy Hunger Free Kids Act (HHFKA) went into effect for the 2013-2013 school year. HHFKA is legislation authorizing funding and establishing the policy for the USDA’s core child nutrition programs-The National School Lunch Program (NSLP) and The School Breakfast Program (SBP). NSLP and SBP provides federal funded to schools for breakfast and lunch meals for America’s school children. Through this program over 30 million school children receive either free or reduced meals at school. To qualify for funding schools must serve a nutritionally balanced meal based on a USDA established meal pattern. The meal pattern followed prior to enactment of the HHFKA was last updated in 1975. HHFKA is the first major overhaul in 30 years of NSLP and SBP.

HHFKA is part of Michelle Obama’s Let’s Move! campaign. An effort to reduce childhood obesity and improve the health of America’s school aged children. The changes are a well thought out attempt to introduce a variety of healthy items to our children’s diet and change their palate in favor of healthier foods. The changes replace high fat, high sodium, empty calorie foods with fresh fruits and vegetables, whole grains, and lean proteins. As a Registered Dietitian and Health Law Attorney, I applauded the changes. Some key elements of HHFKA include:

•Established required meal components based on the age of the child and rooted in evidence based nutrition science.
•Set calorie limits per meal based on the age on the child.
•Set sodium limits per meal based on the age of the child.
•A requirement that fruits and vegetables be served at each meal. Vegetable sub groups to ensure appropriate nutrients over a weekly spread based on the age of the child.
•Whole grains with caps per meal.
•Fat free flavored milk or low fat white milk at each meal.
•100% fruit juice with limits.
•Limits on saturated fat and trans fats.

The School Nutrition Association (SNA), the national organization for school lunch professionals, first supported the changes and assisted in their design but now oppose the changes and are fighting to have them eliminated. SNA has joined forces with House Republicans and are receiving corporate lobbying help from Schwan’s Food Service, ConAgra, Domino’s Pizza, Coca-Cola, and American Frozen Food Institute. SNA’s complaint is lack of profits since implementation of the new meal pattern. SNA issued a position statement largely claiming we do not want to “gut” the program, we want help and request the following:

•Schools operating at a loss of 6+ months the opportunity to waive the improved nutrition standards.
•Eliminate the requirement for 100% whole grains and cap the whole grain requirement at 50%. This is to accommodate the palate for refined white flour, the difficulty finding certain whole grain items, and to decrease plate waste.
•Eliminate sodium restrictions. As SNA states-“there is no scientific evidence that supports reduced sodium diets for children.” The sodium restriction makes it difficult to find an appropriate pizza, mac & cheese, and deli sandwich.
•Eliminate the fruit and vegetable requirement because children should not be forced to eat what they do not want to eat.
•Eliminate the requirement for healthy foods (competitive food) in vending machines because this has reduced their sales.

I do not know where to begin with this position statement!

SNA’s vision and mission is to “be the authority and resource for school nutrition programs”, and “advance the quality of school meals through education and advocacy.” SNA wants to advance the quality of school meals- to me that is an affirmative statement in the direction of improving health. But, because some of SNA’s members have experienced decreased profits, SNA wants the healthy improvements eliminated. SNA would like to swap fruits and vegetables for high sodium, white refined flour products. SNA’s request is the exact opposite of improving health and is an exchange of child health for profits.

SNA states they do not want to “gut” the program. Instead SNA wants to eliminate whole grains, fruits, vegetables, and the sodium caps. This is the belly of the program. Filter out SNA’s request and the program is left with a calorie restriction, flavored milk, and 100% fruit juice.

The purpose of HHFKA is to work towards improving child health and combat obesity and chronic disease. Childhood obesity and chronic disease leads to adult obesity, adult chronic disease, excessively high healthcare costs, and a disabled, globally uncompetitive work force.

Some stats from the Centers for Disease Control and Prevention on childhood obesity:

•Childhood obesity has more than doubled in children and quadrupled in adolescents in the past 30 years.1, 2
•The percentage of children aged 6–11 years in the United States who were obese increased from 7% in 1980 to nearly 18% in 2012. Similarly, the percentage of adolescents aged 12–19 years who were obese increased from 5% to nearly 21% over the same period.1, 2
•In 2012, more than one third of children and adolescents were overweight or obese.1
•Overweight is defined as having excess body weight for a particular height from fat, muscle, bone, water, or a combination of these factors.3 Obesity is defined as having excess body fat.4
•Overweight and obesity are the result of “caloric imbalance”—too few calories expended for the amount of calories consumed—and are affected by various genetic, behavioral, and environmental factors.5,6

Health Effects of Childhood Obesity
Childhood obesity has both immediate and long-term effects on health and well-being.

Immediate health effects:
•Obese youth are more likely to have risk factors for cardiovascular disease, such as high cholesterol or high blood pressure. In a population-based sample of 5- to 17-year-olds, 70% of obese youth had at least one risk factor for cardiovascular disease.7
•Obese adolescents are more likely to have prediabetes, a condition in which blood glucose levels indicate a high risk for development of diabetes.8,9
•Children and adolescents who are obese are at greater risk for bone and joint problems, sleep apnea, and social and psychological problems such as stigmatization and poor self-esteem.5,6,10

Long-term health effects:
•Children and adolescents who are obese are likely to be obese as adults11-14 and are therefore more at risk for adult health problems such as heart disease, type 2 diabetes, stroke, several types of cancer, and osteoarthritis.6 One study showed that children who became obese as early as age 2 were more likely to be obese as adults.12
•Overweight and obesity are associated with increased risk for many types of cancer, including cancer of the breast, colon, endometrium, esophagus, kidney, pancreas, gall bladder, thyroid, ovary, cervix, and prostate, as well as multiple myeloma and Hodgkin’s lymphoma.15
•Healthy lifestyle habits, including healthy eating and physical activity, can lower the risk of becoming obese and developing related diseases.6
•The dietary and physical activity behaviors of children and adolescents are influenced by many sectors of society, including families, communities, schools, child care settings, medical care providers, faith-based institutions, government agencies, the media, and the food and beverage industries and entertainment industries.
•Schools play a particularly critical role by establishing a safe and supportive environment with policies and practices that support healthy behaviors. Schools also provide opportunities for students to learn about and practice healthy eating and physical activity behaviors.

THE American Heart Association ADVOCATES
The AHA will:
•Advocate for implementation of the new evidence based USDA school meal standards.
•Continue to support robust nutrition standards for competitive foods and beverages in schools that are based on a target of less than 1500 mg sodium per day by 2020.
•Support procurement standards for foods purchased by government agencies and employers that include criteria for strict sodium limits.
•Advocate for increasing availability of fruits and vegetables in schools through commodities, food purchasing, school gardens, and the Fresh Fruit and Vegetable Program.

As shown above the key component in fighting childhood obesity is an improved healthy lifestyle. Since school aged children spend the majority of their days in school. Smart health policy demands a healthy school food environment. Many child health researchers including the American heart Association and the CDC collectively agree fresh fruit and vegetables, sodium reductions, and whole grains are key elements to improve child health and fight long term health risks.

In my practice, I’ve worked with school food manufacturers and schools to implement the HHFKA standards. In my experience many children were unfamiliar with many fruits and vegetables and low fat dairy options. For example, fresh pears, zucchini, chickpeas, lentils, and yogurt. Many children would not drink white milk, instead selecting strawberry or chocolate flavored. And I received comments like, “real food” is the frozen kind you get out of a box. Why? Because many children were not accustomed to freshly prepared meals from natural ingredients.

To combat these challenges I worked with school staff and administration to encourage the children to try the foods. This included encouraging the staff and school administration to try the foods themselves in the presence of the children. I provided education materials on the meals, the HHFKA program, and general nutrition to the children. I also prepared education materials for the parents. To further encourage embracing the changes, I administered child surveys, observed lunch periods, and incorporated the changes accordingly.

Moving a generation from processed frozen boxed foods to naturally occurring cooked foods will not happen in one school year. Lifestyle change is a process affected by many forces. Time and multi-dimensional efforts will be needed to change the palate of America’s school children. SNA holds themselves out as acting in the best interest of child nutrition. Scraping nutrient dense foods for profits is not in the best interest of school children. SNA should rethink its position and funnel its corporate dollars into professional development for its members on how to successfully implement these changes.

Statistical information taken from the following:

Helen Rhynard Esq., M.S., RDN

Ethical Considerations For Workplace Wellness Programs

The majority of Americans, 55%, receive healthcare insurance coverage from an employer sponsored plan. The average cost of coverage per active employee for the employer is $8,500, to which, is only ~76% of the cost of total coverage. As of 2012, about half of all adults, 117 million, have one or more chronic health conditions, and one in four adults has two or more chronic health conditions. The annual cost of chronic health conditions as measured in lost productive time is estimated at $2259 billion. Several studies suggest that the costs associated with employee absenteeism and presenteeism- reduced on the job productivity, due to poor health are on average two to three times more than the medical and pharmacy claims costs alone. What’s more disheartening, is that most of those medical conditions could be avoided or significantly delayed if those people could turn back the hands of time and alter the millions of small but significant daily choices that led to those unintended consequences.
To avoid any potential disaster of employers dumping millions of American into the Healthcare Market Exchange, Congress imposed the Employer Mandate. Section 4980H of 26 U.S. Code- Employer Shared responsibility, generally provides that an applicable large employer is subject to an assessable payment if either (1) the employer fails to offer to its full-time employees or fewer than 95% of them plus dependents the opportunity to enroll in minimum essential coverage (MEC) under an eligible employer sponsored plan and any full-time employee is certified to the employer as having received a cost sharing reduction, or (2) the employer offers to all or at least 95% of its full-time employees plus dependents the opportunity to enroll in MEC and one or more fulltime employee is certified to the employer as having received a cost sharing reduction because the employer failed to offer coverage to that employee or the coverage was unaffordable.
Many employers looking to trim costs and improve their employee’s health status might take advantage of the new workplace wellness options under the Affordable Care Act. The new rules allow employers to adjust premiums in exchange for adherence to a health promotion disease prevention program. The new regulations allow employers to adjust costs as much as 30% for wellness programs and 50% for smoking cessation programs. Recent news reports indicate many employers plan to take advantage of this option.
With proper legal guidance workplace wellness programs can be part of the road map to cost reduction for many employers. However there are considerations beyond the statutory requirements and return on investment dollars. Bioethicists caution against taking quick action to shift costs as a penalty for unhealthily lifestyle choices.
One reasoned thought fueling the rise of workplace wellness programs is individual accountability for unhealthy lifestyles. Popular belief assumes employees are unhealthy because of their actions or inaction. The premises behind Workplace wellness is that employees are voluntarily unhealthy. Although some behavior that increases health risk may be under a person’s full control, the ability to change behavior is often diminished in several ways. Many biological, physical, and sociological factors undermine a person’s control over his or her behavior; people are often restricted in their ability to change their behavior because of “encumbrances of the will” which “preclude or impede authentic, reasoned choice.” Consider smoking, the effects of nicotine undermine a person’s ability to follow through on a choice to quite. Thus the act of continued smoking is not fully voluntary. And, arguably, the person should not be held fully responsible. The action by which an employee should be judged is the failure to take voluntary steps to quite not actually quitting.
A second bioethics consideration is people do not voluntarily choose their health outcomes. Poor personal health is not solely a product of informed voluntary actions. Biological, environmental, and sociological factors greatly influence health regardless of how an individual behaves. Here obesity provides an example. Among the many contributing causes of obesity are, poor workplace design, work policies preventing free exercise, and community conditions that prohibit equal access to healthier foods. Holding employees responsible for biometric outcomes may not be the most ethical decision. Additionally holding employees responsible for certain biometric measures may disproportionately affect racial groups and open the door for legal liability.

Helen Rhynard Esq., M.S., RDN
Rhynard Law

Trans Fats Are No Longer Generally Recognized As Safe

Trans fat is a popular buzz word in the news and amongst the health conscious. The fatty substance occurs naturally and has been commercially manufactured in our food since the 1940’s. Over the past two decades researchers have reported on its negative health impact.  Many government entities have moved to either ban or restrict its use.  Such political action has occurred here in Cleveland, Ohio, and in other prominent U.S. cities, New York and Baltimore, as well as across the globe in other countries, Canada and Denmark.

A trans fatty acid results from the chemical hydrogenation by which hydrogen atoms are added to carbon-carbon chains to reduce the number of double bonds. The process of saturating the carbon chain alters the configuration from cis to trans. The trans formation adds value to commercially prepared foods by increasing the melting point, shelf life, and flavor stability. In our bodies trans fats increase risks associated with Coronary Heart Disease (CHD). The experts agree that trans fats mediate changes in lipid metabolism, trigger pro-inflammatory effects, and endothelial dysfunction.

In November 2013 the Food and Drug Administration (FDA) announced partially Hydrogenated Oils, which trans fats are the primary dietary source of, are no longer Generally Recognized As Safe (GRAS) for any use in food based on current scientific evidence; although removal of the GRAS status is not final until after the comment period in March 2014.

Generally any substance the intended use of which results in its becoming a component of or otherwise affecting the characteristic of any food is an unsafe “food additive” unless it is used in accordance with 21 U.S.C 321(s) if such substance is not GRAS. A substance is GRAS if it is generally recognized among qualified experts as having adequately shown to be safe under the conditions of its intended use. Moreover, Gras status of a substance used in food is time-dependent.

That time has come for partially hydrogenated oils and trans fatty acids despite being widely used since the 1940’s in margarine, shortening, baked goods, bread, rolls, buns, French dressing, mayonnaise, cookies, frozen pizza, microwave popcorn, frozen pies, etc. Health experts more than generally agree that trans fats are not safe for the health of the public as evidenced by published literature. For examples see studies published by the American Heart Association, the American Dietetic Association, IOM/NAS, FDA Food Advisory Committee Nutrition Subcommittee, the World Health Organization, the CDC, and NHANES to name a few.

Much of the food industry has begun to remove or reduce the level of the substance in their products. If removal of the GRAS status becomes permanent more time and money will be need to completely remove non-naturally occurring trans fats from our food supply.

This action is positive for our health but is only one piece of our lifestyle health dysfunction.

This post is not legal advice-No attorney-client relationship is formed.

Helen Rhynard Esq., M.S., RDN, L.D.

references: Federal Register/vol. 78, No. 217.

ObamaCare Provides Employer Workplace Wellness Programs with Defenses Against Employee Claims of Discrimination

Wellness programs at work are fast becoming the norm with employers juggling the ever-increasing costs of employee health care.  These are not fluffy, feel good, “get a manicure and a smoothie next Friday” sorts of programs.  The programs are intense demanding results like, “quit smoking or you pay the costs of health insurance”.

Application of heavy-handed strategies to reduce health care costs concerns employers. They risk employee lawsuits alleging discrimination. Lawsuits may be on the horizon but the outcomes may be surprisingly in favor of the employers. Obamacare amended in part the 2006 non-discrimination provisions of The Health Insurance Portability and Accountability Act (HIPAA), thereby providing leverage for employers to impose upon employees the adaptation of healthier lifestyle changes.

In 2006 Congress added §9802 nondiscrimination and wellness provisions (the 2006 Regulations) to HIPAA. These provisions generally prohibit group health plans and health insurance issuers from discriminating against individual participants and beneficiaries in eligibility, benefits, or premiums based on a “Health Factor”; although, allowing an exception for premium discounts, rebates, or modification to cost sharing in exchange for adherence to a health promotion disease prevention program.

The Affordable Care Act of 2010 (ACA) amends HIPAA’s nondiscrimination provisions  Under ACA employers’ group health plans and insurance issuers may discriminate against individuals and beneficiaries based on a “Health Factor” and provide a reward up to 30% of the cost of coverage or as much as 50% of the cost of coverage for a smoking factor. Moreover, compliance with federal regulations is an affirmative defense to a HIPAA discrimination claim.

Health Factor discrimination is defensible because the employees have the option to participate in the wellness program or not. Health Factor rewards are given in return for employee adherence to a wellness program that is reasonably designed to promote health and prevent disease. Wellness programs are divided into two main categories, participatory wellness programs and health contingent wellness programs.  Participatory wellness programs either do not provide a reward or do not include any conditions for obtaining a reward based on satisfaction of a health factor; compared to a health contingent wellness programs which require an individual to satisfy a standard related to a health factor to obtain the award.

A participatory wellness program on its face complies with the HIPAA nondiscrimination provisions without having to satisfy any additional standards if program participation is available to all similarly situated participants regardless of health status. In contrast, a health contingent program must satisfy five statutory requirements to overcome the HIPAA nondiscrimination provisions. ACA mandates…

1. Eligible individuals must have an opportunity to qualify for the reward once per year.

2. The reward must not exceed 30% of the cost of employee only coverage or 50% to the extent the program concerns smoking reduction or prevention.

3. The reward must be available to all similarly situated and provide a reasonable alternative standard or waiver.

4. The program must be reasonably designed to promote health and prevent disease.

5. Plan materials must disclose the terms of the health contingent program.

ACA allows a mechanism to shift the high cost of lifestyle disease from the employer and issuer to the individual forcing individual responsibility.  Wellness programs have been around for nearly 20 years but little comprehensive data exist on program effectiveness. Published literature and the RAND Health Report on Work on Workplace Wellness Programs 2013 corroborate findings on positive effects on health risk and health behavior and suggest a reduction in healthcare costs will materialize with employee participation. This is an opportunity employers may want to take advantage of, but must yield to caution before action. ACA provides an affirmative defense to a HIPAA nondiscrimination claim but that defense may have no effect on other laws, for example ERISA, ADA, and other state or federal laws.

Decisions concerning employee health benefits and workplace wellness programs are difficult. Contact Healthier Futures of Rhynard Law for more information.

This post is not legal advice and does not create an attorney client relationship.


1. Federal Register/vol. 78 No. 106/Monday, June 3, 2013/Rules and regulations.

2. RAND Health, Workplace Wellness Programs Study, Final Report, (2013).

Helen Rhynard Esq., M.S., RDN, L.D.

Journal of Law and Health Symposium on the Legal and Ethical Implications of Posthumous Reproduction

The United States Supreme Court.

The United States Supreme Court. (Photo credit: Wikipedia)

What: Symposium on the Legal and Ethical Implications of Posthumous Reproduction

Date: Friday, March 22, 2013

Time: 1:00 p.m. – 4:00 p.m.

Background Information: This symposium is presented in response to the recent Supreme Court decision in Astrue v. Capato, 132 S. Ct. 995 (2012). In Astrue, the Supreme Court held that children conceived through in vitro fertilization after the death of a parent were not automatically entitled to survivor benefits under Title II of the Social Security Act.


The event includes 3 free CLE credits. There will be a short reception in the atrium following the event.