Florida School Goes to Court to Fight Milk Mandate

TALLAHASSEE—In the first ever legal action of its kind, a new Florida school is challenging the National School Lunch Program’s milk mandate in court. KING Charter Schools, whose mission includes lessons in environmentally conscious and sustainable living, as well as whole foods eating based on plant-based foods, will file its initial brief on Oct. 29. The Physicians Committee for Responsible Medicine—a nonprofit with more than 12,000 doctor members—is sponsoring the litigation.

The federal program requires schools to offer dairy milk even though many students—especially students of color—are unable to digest milk due to lactose intolerance. Research also shows that milk does not improve bone health and is a leading source of saturated (“bad”) fat in children’s diets. Dairy production is also a major contributor to greenhouse gas emissions, water use, and agricultural land use.

KING requested permission from the Florida Department of Agriculture and Consumer Services, which administers the National School Lunch Program, to participate in the program in a way that meets the needs of its unique student body. KING proposed to offer milk as the last meal item in the lunch line, to allow students to decline milk under the program’s “offer versus serve” policy, and to provide, as part of its curriculum outside the lunch line, educational material about the negative effects of dairy consumption.

“An important part of KING’s mission is to promote a healthy future for our students and a healthy planet for them to inherit,” says founding board member, Maria Solanki. “Our goal is to focus on the nutritious and sustainable plant-based meals that will make that possible.” 

The Florida agency denied the request due to a program requirement that schools not “directly or indirectly restrict the sale or marketing of fluid milk products.” In doing so, the agency cited a policy of the U.S. Department of Agriculture, which oversees the National School Lunch Program, directing schools not to even offer students drinking water before milk in the lunch line. The agency also stated that the school could not provide its proposed educational material regarding milk’s ill effects “in any place on school premises.”

In its initial brief, KING argues that the agency’s order violates the First Amendment to the United States Constitution by unlawfully limiting the school’s speech, violating students’ right to receive information, and imposing unconstitutional conditions on a government benefit.

With milk sales on the decline in the United States, the National School Lunch Program—which serves more than 30 million students per year—has been a lucrative market for the dairy industry. School food programs represent about 7.6% of total fluid milk sales, according to one estimate.

“Milk is a top source of saturated fat in children’s diets, putting them at risk for heart disease, type 2 diabetes, and other health problems in the future,” says Physicians Committee president Neal Barnard, MD. “KING’s plan—which emphasizes fruits, vegetables, grains, and beans—will provide students with all the calcium, protein, and other nutrients they need. I hope Florida’s leaders will take this case as an opportunity to prove that they care more about protecting the health of our children than about protecting the dairy industry’s marketing opportunities.”

The school also argues that the order will result in discrimination on the basis of race, color, or national origin, in violation of the Civil Rights Act of 1964. Lactose intolerance—which is the natural inability after infancy to digest the sugar found in mammalian milk—affects approximately 95% of Asians, 60-80% of Blacks and Ashkenazi Jews, 80-100% of American Indians, and 50-80% of Latinos, according to the National Institutes of Health.

In 2018, the American Medical Association passed a resolution calling on the U.S. Department of Agriculture and the Department of Health and Human Services to recognize that lactose intolerance is common among Americans of color and to clearly indicate in federal nutrition guidelines that dairy products are optional.

Although participation in the National School Lunch Program is optional, schools have a strong financial incentive to participate because the program reimburses them up to several dollars per lunch served. Approximately 95 percent of public schools, as well as many nonprofit private schools and residential childcare institutions, participate in the program.