The USDA Buy American Provision requires schools participating in the National School Lunch Program to purchase food items grown and processed in the United States.
Let’s talk about what that means for schools
The USDA Buy American Provision Requirement
There are two types of products subject to the Buy American Provision: unprocessed agricultural commodities and processed products.
- Unprocessed agricultural commodities: these must be grown in the U.S.
Examples include:
- Fresh fruit
- Fresh vegetables
- Fresh herbs
- Unprocessed nuts
- Whole fish
- Processed products: These must both:
-Contain over 51% agricultural commodities grown in the U.S. AND
-Be processed in the U.S.
If the product credits in the meal program, then 51% of the portion the agricultural commodities that credit need to be grown in the U.S.
Examples of processed products are:
- Canned or frozen fruits and vegetables
- Juice
- Entrée items, like pizza, chicken nuggets, and roasted chicken
- Milk and dairy products
- Non-creditable items, such as gravy, margarine, spices, and pudding
For example, a can of pears must contain more than 51% of pears grown in the U.S. and the pears have to be “processed” – peeled, chopped, and canned – in the U.S.
A more complicated example would be pork pepperoni pizza:
- More than 51% of the ingredients in the pepperoni and cheese must have been raised/produced in the U.S. (since it credits as meat/meat alternate) AND
- More than 51% of the flour in the crust must have been grown in the U.S. (since it credits as a grain) AND
- The pizza must have been manufactured in the U.S.
Exceptions to the USDA Buy American Provision
There are two types of exceptions to the USDA Buy American Provision that can be used on a limited basis: availability and cost.
Availability Exception
If the agricultural commodity is not grown in the U.S. in sufficient quantities, the district can approve an exception to the USDA Buy American Provision.
USDA encourages schools to consider menuing other items in place of non-domestic items. However, they do permit schools to authorize the exception, if documented and justifiable.
The USDA does not publish a list for schools of domestic items not widely available; however, the federal government does publish a list for federal entities that schools could use as a reference. Some of the items that might be of interest to schools on the list are:
- Bananas
- Coffee
- Mandarin Oranges
- Pineapple
It also includes some wild items I bet you’re not looking for, like cobra venom.
Even if it’s on this list, schools need to have their vendor request that you approve an exception based on availability. More on that later.
Cost Exception
If a competitive cost comparison shows that a domestic agricultural product is significantly more expensive than the foreign product, the district can approve an exception to the USDA Buy American Provision.
Again, USDA encourages schools to consider alternate options first, such as menuing a domestic product instead. But it is allowable if documented and justifiable.
The USDA doesn’t have a set threshold of what’s significantly more expensive, so it’s ultimately the district’s best judgement.
Keep in mind that vendors must provide you pricing for the domestic and non-domestic products so that you can make that decision. When bidding, vendors want to offer you the lowest price, so beware of vendors that attempt to make that decision for you.
Also know that availability and cost may vary throughout the year, especially with fresh produce.
For example, your produce vendor may be able to source American-grown fresh broccoli for a reasonable price most of the year. But they may ask to send you Mexican broccoli for part of the year due to availability and/or cost. Ultimately, it’s the district’s decision whether they choose to purchase the U.S. broccoli at a higher price, choose the Mexican broccoli, or discontinue buying the fresh broccoli at all.
Ensuring Compliance with the USDA Buy American Provision During Procurement
It’s important to ensure that you plan for this requirement from the very beginning of your procurement process when purchasing food, no matter which procurement method is used.
Formal Purchases
When deciding what language to put in a solicitation for bids or proposals for food products, you need to include the Buy American requirement for vendors.
The USDA has sample language in a policy memo you can use. This ensures vendors are aware of the requirement and outlines procedures when they want to make a request to provide a non-domestic product.
It is common practice to include a form with the solicitation that vendors complete specifying 1) which products they are requesting to provide you that are non-domestic, 2) the reason (availability and cost), and 3) the cost of both the domestic and non-domestic version, if applicable.
When the vendor submits their bid or proposal, completing the Buy American documents are part of establishing whether the vendor is responsive.
The district would then notify the vendor whether or not the exceptions are approved.
Small Purchases
If receiving quotes for a food item, it is common to forget the Buy American language, but you must include it.
If sending a request for quotes via email, it’s easy to copy-paste the same language used in a bid regarding the Buy American provision, then attach the form.
When obtaining quotes via phone, ask each vendor if the product(s) you are inquiring about are grown in the U.S. and processed in the U.S. Document their answers.
If obtaining quotes online or in a catalog, document whether the product meets the USDA Buy American Provision. If you’re unable to verify, you’ll need to call or write someone to find out.
Micro Purchases
Yes, you need to meet the USDA Buy American provision, even when doing a micro purchase.
The most likely scenario for this is obtaining an item from the grocery store. In this case, do your best to find out whether the product was grown and processed in the U.S.
Many produce sections state this information on the shelving. I would take a photo of the label that states the country of origin to save with my receipt. If a domestic alternative is not available, do your best to capture this with photos as well.
Processed products in the grocery store may be more difficult to determine, since the packaging doesn’t always state both the origin of the ingredients and the country it was processed. However, do your best to remain compliant, even if it takes a quick Google search in the aisle.
Ensuring Compliance Throughout the Year
Training
Train staff to be checking products as they are received to identify issues with Buy American.
My State Agency recommends each school post a list of approved Buy American exceptions so that staff are aware what is ok to have a foreign country, and which are not.
If this sounds unrealistic for staff to do, I understand why you might think that. However, staff become very familiar with products and can usually identify when they get something that looks different. Train them to recognize this.
If a vendor attempts to deliver a product that hasn’t been pre-authorized to be non-domestic, train them to reject it.
Ensure vendors know to request non-domestic substitutes
Be sure to remind vendors periodically of the Buy American requirement and outline the protocols for requesting substituting a non-domestic item.
If you do approve additional exceptions, be sure to communicate this with staff so they can be on the lookout for it.
Monitoring
School districts should also periodically review invoices to ensure vendor compliance. Some invoices list the country of origin. Otherwise, be on the lookout for substitutions and ensure they were pre-approved and that they meet the Buy American Provision.
The district should also periodically review products in storage areas. Look for products that have non-domestic origins and comparing to a list of pre-approved items. This is a good activity to conduct during an onsite review.
Frequently Asked Questions About the USDA Buy American Provision
It is considered to be grown in the U.S. if the agricultural commodity was grown in:
- Any of the 50 states
- American Samoa
- Guam
- Northern Mariana Islands
- Puerto Rico
- Virgin Islands
For wild-caught fish, it must be caught in the Exclusive Economic Zone of the United States or by a United States flagged vessel
This is not enough information. “Packed in the U.S.” means it likely meets the second part of the requirement that it be processed in the U.S. However, you don’t know from this statement whether the ingredients are more than 51% domestically-grown.
You’ll need the manufacturer or distributor to provide you with more information.
The vendor needs to certify it. They can certify it by weight or by volume.
That said, don’t blindly trust everything you get back, and be sure to use critical thinking skills.
The USDA had to update their guidance in 2017 when a well-known juice company was issuing schools letters that their juice met Buy American, even though the fruit concentrate was from China. Their reasoning? Because the water they used to reconstitute the juice was from America. *face palm* When I worked for a State Agency, I was on an Administrative Review where the district had accepted this, and even though they had a letter on file, they still received a finding. Be sure to question things that don’t sound quite right.
No. Unless you can find an exemption under the two allowable exceptions, you cannot use brand preference as a reason for not meeting the USDA Buy American requirement.
For example, some Honey Maid graham crackers are made in Canada. You cannot purchase one made in Canada simply because your students prefer Honey Maid over another brand. However, if due to supply chain issues your usual graham cracker is unavailable, and the only graham cracker available is Honey Maid, you could approve a temporary exception while your usual graham cracker is unavailable.
No. Only food is included, and food credited in the SN program only considers the portion of food that credits in the program.
This also means equipment, smallwares, office furniture, computers, etc. are not subject to the USDA Buy American Provision.
Hold up. That’s not their decision to make. The appropriate protocol should be that the vendor emails you the price of the domestic peaches and price of the Chinese peaches. Then, you judge if you consider it “significantly higher” and make the decision of which you will buy.
Once they send you the prices and you inform them of your decision, you can keep that email conversation as your documentation for using the exception.
Yes. It applies to all entities that participate in the National School Lunch Program, regardless of whether or not they conduct the procurement themselves.
Yes. If the revenue accrues to the nonprofit foodservice account, the food needs to meet the USDA Buy American Provision.
No. Hawaii and Puerto Rico must purchase foods that are produced in sufficient quantities in their own state/territories, but they are not subject to other Buy American requirements.
Alaska is not subject to any of these requirements.
