COMMONWEALTH OF VIRGINIA
DEPARTMENT OF EDUCATION
P. O. BOX 2120
RICHMOND, VIRGINIA 23218-2120
SUPTS. MEMO. NO. 127
July 25, 1997

INFORMATIONAL

TO: Division Superintendents
FROM: Richard T. La Pointe
Superintendent of Public Instruction
SUBJECT: Accuracy of Net Content Labeling of Dairy and Juice Products

 
  The United States Department of Agriculture Food and Consumer
  Service (FCS) in conjunction with the Federal Trade Commission
  (FTC), the Department of Commerce's National Institute of
  Standards and Technology, the Office of Food Labeling of the
  Food and Drug Administration and State weights and measures
  representatives are participating in a joint federal-state
  monitoring and education effort designed to focus on the
  accuracy of content labeling of dairy and juice products
  across the country.  The monitoring phase of the project was
  conducted in 20 states in April 1997 by state weights and
  measures representatives.  Virginia did not participate in
  this project.

  The FTC recently issued a report on the results of the
  monitoring phase of this project which the FCS anticipates may
  be widely publicized, particularly in view of the substantial
  failure rate of dairy and juice products tested in both
  schools and the retail market.  Slightly less than one-half of
  all lots tested in schools failed; while almost one-third of
  lots tested in the retail market and at dairies failed. 
  According to the report, state weights and measures
  representatives tested the net contents of more than 1,600
  lots of dairy and juice products in schools, federal and state
  institutions, retail outlets and dairies.  Approximately 760
  of the lots were tested in schools, with over 360 of these
  lots failing.  The remainder of the tests were conducted in
  federal and state institutions, retail outlets and dairies. 
  While the amount of the short weight appears to be quite small
  in some cases, in others, it is significant.  In all cases
  where a tested lot failed, the amount of the shortage was
  greater than permitted under established testing procedures. 

  On July 16, 1997, FCS issued a letter to each supplier that
  provided dairy and juice products to schools which failed to
  contain the required quantities.  The letter expresses FCS 
  serious concerns with the short weighting events, requires the
  supplier to take corrective actions to remedy the deficiencies
  that caused the short weighting and provide restitution,
  within three (3) weeks from the receipt of the letter, to the
  schools that received short-weighted product. Virginia schools
  were not tested.  So there should be no instances where
  restitution is due a Virginia school. 

  Because FCS is seriously concerned with the failure of
  suppliers to provide schools with dairy and juice products
  which contain the required minimum quantities, FCS has also
  issued the following recommendations: 


  School food authorities (SFAs) should:

  1.    Include in all contracts for dairy, juice and other
        products, a provision that  products obtained under
        contract may be tested by state weights and measures
        representatives and the remedies that the SFA will
        exercise when products fail to meet either contract or
        label specifications.  At a minimum these remedies should
        include: 

        a. Cash restitution or in-kind replacement, at
           the SFA's discretion, for the total lot which
           failed; 

        b. Payment for the value of all meals that the
           SFA served which failed to contain the minimum
           quantities and components required of a
           reimbursable meal under the Child Nutrition
           Programs because the supplier provided short-weighted 
           products;

        c. The timeframes for providing restitution and
           payments to the SFA;

        d. A notice that repeated instances of products
           failing to contain required quantities is a
           material breach of the contract which may
           result in contract termination for cause;

        e. A requirement that all costs resulting from
           termination for cause must be borne by the
           contractor.

  2.    Invite state weights and measures representatives to
        conduct tests on the net  contents of dairy, juice and
        other products purchased for use in Child Nutrition
        Programs.

  3.    Immediately notify suppliers, in writing, via
        certified mail or Federal Express, when products fail
        tests conducted by state weights and measures
        representatives and direct the supplier to replace the
        product in cash or in-kind replacement and issue any
        other funds payable to the SFA pursuant to the terms
        and conditions established in the contract. 

  4.    Exercise contract termination for cause provisions in
        a timely manner.

  5.    Utilize the services of legal counsel to ensure bid,
        contract terms, and all correspondence with suppliers
        are legally sufficient and in the best interests of
        the SFA.

  In addition to the recommendations outlined above, FCS will
  use the information obtained through the project to identify
  additional actions that SFAs can take to improve the integrity
  of these programs.  Since these dairy and juice products are
  federal nonprocurement program transactions, FCS will also
  take whatever administrative actions are necessary to protect
  the public interest and the federal government.

  Please contact School Nutrition Programs Office at (804) 225-2074 
  for additional information.


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