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Department of Education

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Appeal Decisions

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If you have questions contact Nicole Proesch, legal counsel for the Department and the State Board,
at 515-281-8661 or
BOOK: 26 
MONTH-YEAR: July - 2012
IN RE: Petition for Waiver of Rule
KEYWORDS: Petition for Waiver from 58.11, Nutritional Content Standards
DETAILS: On or about June 20, 2012, 4U2U Brands, LLC [''Petitioner''] filed a petition with this agency requesting a waiver from administrative rule 281--Iowa Administrative Code 58.11.    The rule in question permits 100% fruit juices, but prohibits all carbonated beverages.  The waiver petition asks that a specific product that is a carbonated 100% fruit juice be available to students in Iowas schools.
  The beverages in question are four flavors marketed under the name ''Epic Sparkling Juices'' by the Petitioner.    They are 100% fruit juice, contain no added sweeteners, and provide 100% of the RDA [recommended daily allowance] of Vitamin C.
  From our review of the materials provided by the Petitioner, the Iowa Nutrition Advisory Panel, and USDA, we find all of the following criteria from rule 281--4.4 to be true:

1.  Not waiving the rule would result in an undue hardship to the petitioner.  This is true because this agency earlier granted a similar waiver to other beverages that are carbonated 100% fruit juices with no added sweeteners.  Not waiving the rule would also result in a hardship to schools that are allowed to provide Epic under USDAs National School Lunch Program but not under rule 58.11.

2.  Waiver would not prejudice the substantial legal rights of any person.  This agency provides a similar waiver at the conclusion of this Decision for any beverage that is allowable under Rule 58.11 but for the carbonation.  Manufacturers of new products must continue to request a waiver.

3.  The provisions of the rule from which waiver is sought are not mandated by statute or other provision of law.  Iowa Code section 256.7(29) (2011) mandates the adoption of rules establishing nutritional content standards but does not set the standards.
4.  Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the rule from which waiver is sought.  Waiver does not compromise the public health, safety, and welfare.  This is not an issue. 

5.  Waiver would not have a negative impact on the student achievement of any person.  Common sense compels a conclusion that the Epic beverages are a healthy alternative to soda.   
  The petition for waiver is GRANTED. 26

This agency has previously similarly ruled, and has provided a partial list of acceptable beverages in the Appendix herein.  This list is maintained and updated as needed on the Iowa Department of Educations Healthy Kids Act webpage (
),under ''Other Documents''.