Congress Promised Non-Dairy Milk for Schools. Where Is It?

For decades, federal law has made it nearly impossible for public schools to serve non-dairy milk. That changed in January, when Congress passed a law that ostensibly reduced these barriers. But a whole semester has come and gone, and many schools still aren’t offering non-dairy milks at lunch. As a result, student activists and state governments are taking matters into their own hands.

Since 1946, the national school lunch program has provided free or low-cost lunches to children in public schools around the country. Dairy milk is a major part of this: the law that authorized the school lunch program requires schools to serve cow’s milk to kids. 

Until recently, schools were not required to serve plant-based milks unless the school was provided with a doctor’s note detailing the student’s disability. On top of these requirements, the plant-based milk had to be nutritionally equivalent to cow’s milk (fortified, unsweetened soy milk, for example).

Lactose intolerance is common among students, as an estimated 25% of Americans have it. This is especially true for racially and ethnically marginalized groups, with 60% of Jewish Americans, 80% of Black Americans, 80% of Indigenous Americans and more than 90% of Asian Americans being lactose intolerant.

“Our school doesn’t offer many plant-based options, and doesn’t provide milk substitutes, and that’s especially concerning because we live in a mostly minority and lactose-intolerant area,” Joshua Toomer, a 17-year-old senior at Kip Houston High School in Texas, tells Sentient. “As a result, it’s been pretty difficult for me to eat and be hydrated throughout the day. Oftentimes, I’ll go home and just pass out,” says Toomer, who is lactose intolerant.

Zoey Ying, a 15-year-old junior at Weston High School in Massachusetts, says the situation is the same at her school.

“Nothing’s really changed at my school [since the law was passed],” Ying tells Sentient. “I think my food service director, and a lot of food service directors across the country aren’t really aware of the law.”

Toomer and Ying are both part of the Plant-Powered Youth Fellowship, which selects 14 students from across the country every year to advocate for plant-based meals “through movement building, policy advocacy, and leadership development.”

While Ying isn’t lactose intolerant, her brother is, and she says this has impacted not only his health but also his learning.

“I know my brother really likes drinking milk, but I don’t want to see him drink the milk with the lactose in it,” Ying tells Sentient. “Then he’ll have stomach issues during class, and this can obviously affect his learning a lot if he has to constantly go out of class to go to the bathroom because of the stomach issues.”

Students may also choose non-dairy milks for reasons unrelated to medical conditions, such as the dairy industry’s harmful impacts on animal welfare or the environment. 

Schools Carry the Extra Cost 

The Whole Milk For Healthy Kids Act, passed in January of this year, aims to make whole-fat milk available in public schools again, after a 2012 USDA policy required schools in the lunch program to serve either fat-free or 1% fat dairy milk. But it also contains two provisions that ostensibly expand the availability of non-dairy milks in schools as well.

First, the law allows schools to voluntarily add non-dairy milk to their menus as a standing item for all students. Second, it relaxes the requirements regarding non-dairy milk replacements for students with disabilities by allowing a note from a parent or legal guardian or a physician, rather than requiring a physician’s note. 

On the surface, this is a positive development. But students and activists say that neither of these provisions has been fully implemented in practice. There is also no mention of breakfast in the law, which could lead to inconsistent policies for the different meals. 

Another barrier is cost. School cafeterias can offer non-dairy milks as a standing menu item, but they typically cost more than dairy milk. If schools want to add it to their menus, they have to eat the difference in price.

“Schools receive a set reimbursement price for that meal, regardless of what foods are served,” Chloe Waterman tells Sentient. “Right now, most schools are facing a price differential of around 70 cents per carton of milk for cow’s milk versus non-dairy milk, since cow’s milk is so subsidized and is scaled so dramatically in the K-12 context.” 

Waterman is the Senior Program Manager at Friends of the Earth, which co-facilitates the Plant-Powered Youth Fellowship. Schools are already working on tight budgets, Waterman says, and “most schools just cannot absorb that cost without some kind of subsidy for non-dairy milk.” 

California will soon be introducing such a subsidy, which is good news for the nearly 6 million children in California’s public schools. But that’s because the state legislature passed, and Gov. Gavin Newsom signed, a budget that includes funds for non-dairy milk and plant-based foods. Most states would need to do the same and haven’t, and as a result, schools have to spend more if they want to offer non-dairy milks.

“Right now, schools just have to eat that 70-cent difference, and when that’s almost a quarter of their budget for a single meal, many schools just can’t do that,” Waterman says. “So that is the main reason that we’re not seeing widespread implementation.”

The second major provision is supposed to give students with milk-related medical issues easier access to non-dairy milk. They can now do so with a written statement from a doctor, parent or legal guardian. Previously, only a doctor could provide the note.  

However, given the language used in the legislation, this new provision only applies to lunches. Many schools serve breakfast as well. This, Waterman and Toomer say, has resulted in a bizarre situation in which a student who is lactose intolerant, for example, needs a doctor’s note for their morning meals, but not for their lunch. 

This is obviously a headache for students, but it creates extra work for cafeteria staff as well. 

“If [schools] can serve soy milk on the lunch line but not for breakfast, that means that you’re asking the frontline food service workers to remove the carton of milk and put it back every day after lunch and before lunch, so it’s not there for breakfast, instead of just leaving it in the milk cooler,” Waterman says. “That’s certainly not what Congress intended or wanted to do here, and it doesn’t serve anybody — students, parents, the schools — well.”

Why Non-Dairy Milk Is Still Missing From School Menus

This issue could potentially be fixed by a well-written regulation, but this leads to a related issue that runs parallel to challenges with price and language. 

After Congress passed the Whole Milk For Healthy Kids Act, it was up to the United States Department of Agriculture (USDA) to issue regulations, including how they should be implemented. Agencies have a degree of latitude in translating laws to regulations, and when the USDA issued its regulations, it expanded the new rules to include breakfast in addition to lunch — but, inexplicably, only for whole milk. The words “non-dairy” and “plant-based” don’t appear anywhere in the regulations. 

As a result, there’s actually no federal regulation that implements the non-dairy provisions of the Whole Milk For Healthy Kids Act, regardless of whether it’s for lunch or breakfast. And because states generally rely on federal regulations to guide their policies, many schools still haven’t updated their non-dairy policies in accordance with the new law, Waterman tells Sentient.

“Because they haven’t done that yet, many states are just saying, ‘We’re not going to update our guidance. We’re not going to really start focusing on this until everything is out from USDA and until we hear everything from USDA,’” Waterman says.

In an email to Sentient, a USDA spokesperson said that the components of the law centering on non-dairy milk “will be codified in future rulemaking.”

“The provisions related to non-dairy will be addressed in a future proposed rule,” the spokesperson wrote.

But students like Ying are feeling the effects of this regulatory ambiguity.

“The inconsistency with the USDA regulations puts a lot of stress on the schools, the families and the administration,” Ying says. “Having a full implementation of the law would be just great overall for everyone.”

Toomer and Ying have taken their concerns to Capitol Hill. Both have met with the staff of lawmakers in their states, including Sens. Elizabeth Warren (D-Mass), Ed Markey (D-Mass) and John Cornyn (R-Texas), as well as various congressional committees. 

The results have been mixed. Ying says that while Warren and Markey’s staff were both receptive in general, her follow-up emails regarding the law’s implementation haven’t yielded any specific commitments. 

Toomer says that when he met with Cornyn’s staff, they claimed the upcoming Farm Bill would take care of the issues surrounding plant-based milk. That Farm Bill died in the Senate last week — but even if it hadn’t, that wouldn’t have mattered, because neither the House nor the Senate version of the bill mentions non-dairy milk.

What’s more, Toomer also says that one staffer he met openly doubted that a doctor would advise a student to eat plant-based foods for medical reasons.

“Another student [in the meeting] talked about how her doctor told her to stop eating school lunch because of how it was affecting her body, and the lady that we spoke to was like, ‘What doctor would say that? What type of doctor would say that? What are you talking about?,’” Toomer says.

But student activists aren’t just pressing this issue in Washington, D.C.. They’re also working in their schools, both with their food service directors and other students, to try and get more non-dairy foods in school lunches. 

Both Toomer and Ying say that their schools have been receptive, but it’s too soon to say whether their efforts will be successful, as the new school year hasn’t started. Ying says she plans on creating a committee of like-minded students next year in hopes of pushing the ball forward.

The failed implementation of the Whole Milk For Healthy Kids Act is an illustration of the gaps that can exist between federal policy and the facts on the ground, and of how failed nutritional policies can have disproportionately negative impacts on certain student populations, including those who are economically disadvantaged or who have medical concerns like lactose intolerance or dairy allergies.

But on the flip side, these failures aren’t going to persist without a fight, because as long as schools aren’t offering plant-based milk to students who need it, there are students pushing them to do better.