State of New York et al v. United States Department of Agriculture et al

Filing 1

COMPLAINT against United States Department of Agriculture, United States Department of Agriculture Food and Nutrition Service, Sonny Perdue, in his official capacity as Secretary of Agriculture. (Filing Fee $ 400.00.)Document filed by State of New Mexico, State of New York, State of Illinois, District of Columbia, State of Vermont, State of California, State of Minnesota.(Liskow, Samantha)

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
STATES OF NEW YORK,
CALIFORNIA, ILLINOIS,
MINNESOTA, NEW MEXICO, and
VERMONT, and the DISTRICT OF
COLUMBIA,
v.

Plaintiffs,

CIVIL ACTION NO.

UNITED STATES DEPARTMENT
OF AGRICULTURE; UNITED
STATES DEPARTMENT OF
AGRICULTURE FOOD AND
NUTRITION SERVICE; and
SONNY PERDUE, in his official
capacity as Secretary of Agriculture,

COMPLAINT

Defendants.
INTRODUCTION
1.

In 2018, the U.S. Department of Agriculture significantly weakened

the federal nutritional standards for sodium and whole grains in school breakfasts
and lunches that it had established in 2012. The agency made these changes
without providing the public an opportunity to comment on them and in
contravention of nutritional requirements for school meals established by Congress.
2.

Plaintiff States bring this case to protect the health of the

schoolchildren in their States by ensuring that nutritional standards for school
meals are not changed without an opportunity to comment on the changes and that,
as required by Congress, the standards are based on the Dietary Guidelines for

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Americans, the recommendations of the National Academy of Sciences, and
scientific research regarding children’s nutrition. 1
3.

For decades, Congress has recognized the importance of nutrition in

schools. In 1946, Congress enacted the National School Lunch Act “to safeguard the
health and well-being of the Nation’s children” by subsidizing school lunches
nationwide. See 42 U.S.C. § 1751. In 1966, “[i]n recognition of the demonstrated
relationship between food and good nutrition and the capacity of children to develop
and learn,” Congress enacted the Child Nutrition Act to subsidize school breakfasts.
See 42 U.S.C. § 1771.
4.

School meals play a vital role in the lives of millions of schoolchildren

in America, including children who live in the States. Indeed, Congress found in
1988 that “[t]he importance of the child nutrition programs cannot be overstated.” 2
5.

In 2018, nearly 30 million children consumed nearly five billion school

lunches and more than 14 million children ate school breakfasts under the national
school lunch and breakfast programs.
6.

The programs are especially important for children in low-income

families. In 2018, more than 74% of school lunches and 85% of school breakfasts
were provided free or at a reduced price.

“States” include the District of Columbia.
2 Child Nutrition Programs: Issues for the 101st Congress. Report Prepared for the
H.R. Subcomm. on Elementary, Secondary, and Vocational Educ. of the Comm. on
Educ. and Labor, 100th Cong., 2d sess, at iii (Dec. 1988).
1

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7.

The programs are also critically important for students of color:

according to the U.S. Department of Agriculture’s own figures, a disproportionate
share of students who participate in the national school lunch and breakfast
programs are Black or Latino compared to their overall enrollment in schools.
8.

Recognizing the importance of school meals and children’s nutrition,

the National School Lunch Act and the Child Nutrition Act require defendants
(together, “USDA”) to ensure that school lunches and breakfasts meet nutritional
requirements. As initially enacted, both Acts require USDA to prescribe nutritional
requirements “on the basis of tested nutritional research.” See 42 U.S.C.
§§ 1758(a)(1), 1773(e)(1). In 1994, Congress reinforced that mandate by requiring
school meals to be consistent with the Dietary Guidelines for Americans. See 42
U.S.C. § 1758(f)(1). In 2010, Congress further reinforced that mandate by requiring
USDA to update the nutritional requirements based on a 2009 study by the Food
and Nutrition Board, which is part of the National Academy of Sciences. See 42
U.S.C. § 1753(b)(3)(A).
9.

Pursuant to those statutory mandates, USDA issued a rule in 2012

(“2012 Rule”) establishing major nutritional standards for school meals based on the
Dietary Guidelines for Americans and the 2009 Nutrition Board Study. 77 Fed. Reg.
4088 (Jan. 26, 2012). Those standards included phased-in sodium restrictions on a
gradual, ten-year timeline, to reduce the sodium content of school meals, id. at
4097-98, as well as a requirement increasing the whole grains served in schools, id.
at 4093-94.

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10.

But in 2018, USDA issued a rule (“2018 Rule”) that significantly

weakened the nutritional standards in the 2012 Rule by (1) eliminating the final
maximum sodium target scheduled to go into effect in the 2022-2023 school year;
(2) delaying by five years an intermediate maximum sodium target scheduled to go
into effect in the 2019-2020 school year; and (3) cutting in half the amount of whole
grains required to be served, beginning in the 2019-2020 school year. 83 Fed. Reg.
63,775, 63,780-83 (Dec. 12, 2018).
11.

USDA failed to give the public notice of and an opportunity to

comment on the 2018 changes to the sodium and whole grain requirements, as
required by the Administrative Procedure Act (“APA”), 5 U.S.C. § 553(b), (c). The
opportunity to comment on an interim final rule issued in 2017 did not provide an
opportunity to comment on the 2018 Rule’s changes because the interim final rule
did not institute the changes made by the 2018 Rule or provide notice that USDA
was considering those changes.
12.

As a result, USDA’s sodium and whole grains changes were adopted

“without observance of procedure required by law,” 5 U.S.C. § 706(2)(D).
13.

The changes to the sodium and whole grain requirements made by the

2018 Rule were not based on tested nutritional research, the latest Dietary
Guidelines, or the 2009 Nutrition Board Study, as required by statute.
14.

As a result, the 2018 Rule’s changes to the sodium and whole grain

requirements are “not in accordance with law” and are “arbitrary [and] capricious”
under the APA, 5 U.S.C. § 706(2)(A).

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15.

The States accordingly ask the Court to “hold unlawful and set aside”

the changes to the sodium and whole grain requirements in the 2018 Rule under
the APA, 5 U.S.C. § 706(2)(A), (D).
JURISDICTION AND VENUE
16.

The Court has subject-matter jurisdiction pursuant to 28 U.S.C.

§§ 1331 and 2201(a). Jurisdiction is also proper under the judicial review provisions
of the APA, 5 U.S.C. § 702.
17.

Venue is proper within this federal district, pursuant to 28 U.S.C.

§ 1391(e), because plaintiff State of New York resides within the district.
THE PARTIES
18.

Plaintiff New York is a sovereign state of the United States of America.

As a body politic and a sovereign entity, it brings this action on behalf of itself and
as trustee, guardian, and representative of all residents and citizens of New York,
including children. Over one and a half million children in New York participated in
the school lunch program in 2018 and over 500,000 in the breakfast program. Those
children consumed over 400 million school meals in 2018.
19.

Plaintiff California is a sovereign state of the United States of

America. As a body politic and a sovereign entity, it brings this action on behalf of
itself and as trustee, guardian, and representative of all residents and citizens of
California, including children. Over three million children in California participated
in the school lunch program in 2018 and over one and a half million in the breakfast
program. Those children consumed over 800 million school meals in 2018.

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20.

Plaintiff Illinois is a sovereign state of the United States of America.

As a body politic and a sovereign entity, it brings this action on behalf of itself and
as trustee, guardian, and representative of all residents and citizens of Illinois,
including children. Over one million children in Illinois participated in the school
lunch program in 2018 and over 400,000 in the breakfast program. Those children
consumed over 200 million school meals in 2018.
21.

Plaintiff Minnesota is a sovereign state of the United States of

America. As a body politic and a sovereign entity, it brings this action on behalf of
itself and as trustee, guardian, and representative of all residents and citizens of
Minnesota, including children. Over 600,000 children in Minnesota participated in
the school lunch program in 2018 and over 200,000 in the breakfast program. Those
children consumed over 100 million school meals in 2018.
22.

Plaintiff New Mexico is a sovereign state of the United States of

America. As a body politic and a sovereign entity, it brings this action on behalf of
itself and as trustee, guardian, and representative of all residents and citizens of
New Mexico, including children. Over 200,000 children in New Mexico participated
in the school lunch program in 2018 and over 100,000 in the breakfast program.
Those children consumed over 58 million school meals in 2018.
23.

Plaintiff Vermont is a sovereign state of the United States of America.

As a body politic and a sovereign entity, it brings this action on behalf of itself and
as trustee, guardian, and representative of all residents and citizens of Vermont,
including children. Over 46,000 children in Vermont participated in the school

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lunch program in 2018 and over 25,000 in the breakfast program. Those children
consumed over 11 million school meals in 2018.
24.

Plaintiff District of Columbia (District) is a municipal corporation

empowered to sue and be sued, and is the local government for the territory
constituting the permanent seat of the federal government. The District brings this
case through the Attorney General for the District of Columbia, who is the chief
legal officer for the District and possesses all powers afforded the Attorney General
by the common and statutory law of the District. The Attorney General is
responsible for upholding the public interest and has the authority to file civil
actions in order to protect the public interest. D.C. Code § 1-301.81. The District
brings this action on behalf of itself and as trustee, guardian, and representative of
all residents and citizens of the District of Columbia, including children. Over
50,000 children in the District of Columbia participated in the school lunch program
in 2018 and over 35,000 in the breakfast program. Those children consumed over 15
million school meals in 2018.
25.

Defendant United States Department of Agriculture (“the

Department”) is a cabinet agency within the executive branch of the United States
government and an agency within the meaning of 5 U.S.C. § 552(f). The
Department is required to implement the school lunch and breakfast programs,
including issuing regulations establishing the nutritional requirements for school
meals. 42 U.S.C. §§ 1753(b)(3)(A), 1758(a)(1), 1758(f)(1), 1773(e)(1).

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26.

Defendant Food and Nutrition Service, a sub-agency of the

Department, administers the Department’s nutrition assistance programs,
including the school lunch and breakfast programs.
27.

Defendant Sonny Perdue is the Secretary of Agriculture and is sued in

his official capacity.
BACKGROUND
I.

The School Lunch and Breakfast Programs.
28.

In 1946, Congress enacted the National School Lunch Act (“School

Lunch Act”) “to safeguard the health and well-being of the Nation’s children” by
creating and subsidizing a nationwide system of school lunches. Pub. L. No. 79-396,
§ 9, 60 Stat. 230, 233 (1946) (codified at 42 U.S.C. § 1751).
29.

In 1966, Congress enacted the Child Nutrition Act, establishing a

subsidized school breakfast program “[i]n recognition of the demonstrated
relationship between food and good nutrition and the capacity of children to develop
and learn.” Pub. L. No. 89-642, § 2, 80 Stat. 885, 885 (1966) (codified at 42 U.S.C.
§ 1771).
30.

The school lunch and breakfast programs are operated by public and

non-public local operators, referred to in USDA’s regulations as “school food
authorities,” and are overseen by the Food and Nutrition Service and by state
agencies, typically state education departments. 7 C.F.R. §§ 210.2, 210.3(b), 220.2,
220.3(b).
31.

Federal funding for school meals is provided in the form of

reimbursements for each meal served that meets the nutritional requirements in
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USDA’s regulations. 7 C.F.R. §§ 210.7, 220.9. Meals that are served free or at a
reduced price to children from lower-income families are reimbursed at higher
rates. 83 Fed. Reg. 34,105, 34,105-07 (July 19, 2018); 7 C.F.R. §§ 210.4(b), 220.9(b).
32.

USDA also directly purchases food for school meals (“USDA Foods”)

and provides it to school food authorities, often through a state agency. See 7 C.F.R.
§ 250.56. Each school food authority receives an annual allotment to procure USDA
Foods. Id. § 250.56(c).
33.

State agencies implement and enforce the nutritional and fiscal

requirements of the school lunch and breakfast programs.
34.

Congress has enacted a series of provisions to ensure that school meals

are nutritious for children.
II.

Nutritional Requirements for the School Lunch and Breakfast
Programs.
35.

As initially enacted and subject to exceptions not relevant here, both

the School Lunch Act and the Child Nutrition Act require school meals to “meet
minimum nutritional requirements prescribed by [USDA], on the basis of tested
nutritional research.” 42 U.S.C. §§ 1758(a)(1) (School Lunch Act), 1773(e)(1) (Child
Nutrition Act). 3
36.

Congress amended the School Lunch Act three times to ensure further

that school meals are nutritious. First, in 1994 Congress enacted the Healthy Meals
for Healthy Americans Act, which amends the School Lunch Act to require that

The language in the School Lunch Act and Child Nutrition Act is identical except
that the Child Nutrition Act does not have a comma before “on the basis.”

3

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both school lunches and breakfasts be “consistent with the goals of the most recent
Dietary Guidelines for Americans.” Pub. L. No. 103-448, § 106(b), 108 Stat. 4699,
4702-03 (1994) (codified at 42 U.S.C. § 1758(f)(1)).
37.

Congress amended the School Lunch Act again in 2004 to specifically

direct USDA to issue nutritional regulations for the school lunch and breakfast
programs that are based on the most recent Dietary Guidelines for Americans. See
Child Nutrition and WIC Reauthorization Act of 2004, Pub. L. No. 108-265, § 103,
118 Stat. 729, 732 (2004) (codified at 42 U.S.C. § 1758(a)(4)).
38.

The Dietary Guidelines for Americans (“the Dietary Guidelines”) are

“nutritional and dietary information and guidelines for the general public” that are
jointly issued by USDA and the U.S. Department of Health and Human Services. 7
U.S.C. § 5341(a)(1). The Dietary Guidelines are issued at least every five years and
are “based on the preponderance of the scientific and medical knowledge which is
current at the time the report is prepared.” Id. § 5341(a)(1), (2).
39.

To implement the requirement that school meals be consistent with

the Dietary Guidelines, in 2008 USDA contracted with the Food and Nutrition
Board of the National Research Council of the National Academy of Sciences (“the
Nutrition Board”). USDA directed the Nutrition Board to assemble an expert panel
to “undertake a review of the nutritional needs of children” and the feasibility of
changing nutritional standards in school meals and to recommend nutritional
requirements for the school lunch and breakfast programs based on that review. See
76 Fed. Reg. 2494, 2508 (Jan. 13, 2011).

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40.

The Nutrition Board assembled a committee of experts in public

health, epidemiology, pediatrics, child nutrition and child nutrition behavior, menu
planning, statistics, and economics, as well as managers of school lunch and
breakfast programs. Id. at 2508.
41.

The Nutrition Board committee assessed schoolchildren’s nutritional

needs using the 2005-2010 Dietary Guidelines, which recommended that (1) adults
consume no more than 2300 milligrams (“mg”) of sodium daily and adjusted that
limit for children based on age; and (2) at least half the grains consumed by both
adults and children be whole grains.
42.

The Nutrition Board committee also analyzed additional scientific

evidence, received written comments, and held open meetings where it received
input from nutrition advocates, health professionals, and other stakeholders. Id. at
2496.
43.

In 2009, the Nutrition Board issued a study entitled School Meals:

Building Blocks for Healthy Children (“the 2009 Nutrition Board Study”).
44.

The 2009 Nutrition Board Study found that the daily sodium intake for

schoolchildren “clearly was excessive” and significantly above the Dietary
Guidelines. 2009 Nutrition Board Study at 58. The Study explained that there was
an observed increase in children’s blood pressure and that scientific studies showed
that there was a “clear relationship between blood pressure and salt intake” in
adolescents and an apparent relationship between sodium intake and blood
pressure in children as well. Id. at 64. The Study also cited scientific studies

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showing that “high blood pressure responds to a reduction in salt intake in children
as in adults.” Id.
45.

Based on those findings, the 2009 Nutrition Board Study

recommended sodium limits for school meals that were consistent with the Dietary
Guidelines. Id. at 177.
46.

Those recommended sodium limits were also consistent with the

“Dietary Reference Intakes,” national nutritional guidelines issued by the National
Academy of Sciences that establish maximum safe consumption of certain
nutrients. Id. at 53.
47.

The 2009 Nutrition Board Study also found that schoolchildren

consumed “extremely low” amounts of whole grains—an important source of fiber.
The Study recommended that within three years all grain products served in
schools be “whole grain-rich”—i.e., contain at least 51% whole grains—as
recommended by the Dietary Guidelines. Id. at 199; see 76 Fed. Reg. at 2496.
48.

In 2010, Congress enacted the Healthy, Hunger-Free Kids Act, which

amended the School Lunch Act a third time to direct USDA to issue regulations
updating the nutritional standards for school lunches and breakfasts “based on” the
2009 Nutrition Board’s recommendations. Pub. L. No. 111-296, § 201, 124 Stat.
3183, 3214-15 (2010) (codified at 42 U.S.C. § 1753(b)(3)(A)). The Healthy, HungerFree Kids Act required USDA to promulgate proposed regulations within eighteen
months and to issue interim or final regulations within eighteen months after
issuing the proposed regulations. Id. The Act also required USDA to include a date

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by which school food authorities would be required to comply with the updated
nutritional standards. Id. at § 1753(b)(3)(A)(ii)(II).
III.

The 2012 Rule.
49.

In 2012, as required by the Healthy, Hunger-Free Kids Act, USDA

promulgated a rule, Nutrition Standards in the National School Lunch and School
Breakfast Programs, that updated the nutritional requirements for the school lunch
and breakfast programs based on the Dietary Guidelines and the 2009 Nutrition
Board Study. 77 Fed. Reg. 4088; see also 76 Fed. Reg. at 2496 (“the new meal
requirements seek to ensure that the meals planned by school foodservice providers
and selected by students reflect the food groups emphasized by the 2005 Dietary
Guidelines and meet the nutrient targets identified by [the Nutrition Board]”); 82
Fed. Reg. 56,703, 56,703 (Nov. 30, 2017) (the 2012 Rule “updated the school meal
requirements consistent with the Dietary Guidelines and the recommendations
issued by the [Nutrition Board]”).
50.

The updated nutritional requirements in the 2012 Rule are

implemented at 7 C.F.R. § 210.10 (school lunch requirements) and 7 C.F.R. § 220.8
(school breakfast requirements).
51.

Before issuing the 2012 Rule, USDA had issued a proposed rule in

2011 and considered 133,268 public comments on the proposed rule. See 77 Fed.
Reg. at 4089.
52.

The 2012 Rule was based on USDA’s recognition that “[s]chools must

offer nutritious, well-balanced, and age-appropriate meals to all the children they

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serve to improve their diets and safeguard their health.” 77 Fed. Reg. at 4143
(codified at 7 C.F.R. § 210.10(a)(1)).
53.

USDA expected that the updated requirements would “enhance the

diet and health of school children, and help mitigate the childhood obesity trend.”
77 Fed. Reg. at 4088.
54.

USDA found that the childhood obesity epidemic “imposes substantial

economic costs” and “is associated with an estimated $3 billion in direct medical
costs.” Id. at 4133.
55.

USDA also recognized that the 2005-2010 Dietary Guidelines, as well

as the newly promulgated 2010-2015 Guidelines, provided “more prescriptive and
specific nutrition guidance than earlier releases, and require[d] significant changes
to school meal requirements.” Id. at 4107.
56.

The 2012 Rule included requirements regarding schoolchildren’s

consumption of sodium and whole grains.
57.

USDA, recognizing that the sodium content of school food was high,

stated: “Reducing the sodium content of school meals is a key objective of this final
rule reflecting the Dietary Guidelines recommendation for children and adults to
limit sodium intake to lower the risk of chronic diseases.” Id. at 4097. As described
in the 2011 proposed rule, a sodium limit would in addition “help children reduce
their salt preference and develop healthier eating habits.” 76 Fed. Reg. at 2503.
58.

The 2012 Rule established, for the first time, a sodium limit for school

meals based on age group. 77 Fed. Reg. at 4097-98, 4146-47, 4156-57 (codified at 7

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C.F.R. §§ 210.10(f)(3), 220.8(f)). That “final sodium target” adopted the limits for
sodium recommended by the 2009 Nutrition Board Study and the Dietary
Guidelines. 77 Fed. Reg. at 4098.
59.

The 2012 Rule phased in the final sodium target “to allow food

manufacturers additional time to reformulate products and schools more time to
build acceptance of lower sodium meals,” 77 Fed. Reg. at 4097, and therefore
established two intermediate targets, target 1 and target 2. Id. at 4146-47, 4156-57
(codified at 7 C.F.R. §§ 210.10(f)(3), 220.8(f)(3)).
60.

The compliance date for the final sodium target was school year 2022-

2023, ten years after implementation of the 2012 Rule. Id.
61.

The dates for compliance with the intermediate sodium targets were

school years 2014-2015 for target 1 (two years after promulgation of the 2012 Rule)
and 2017-2018 for target 2 (five years after promulgation of the 2012 Rule). Id.
62.

In addition to the sodium limits, the 2012 Rule also established, for the

first time, a minimum whole grain requirement. Id. at 4144, 4154-55 (codified at 7
C.F.R. §§ 210.10(c), 220.8(c)).
63.

USDA recognized that whole grains are an important source of

nutrients such as iron, magnesium, selenium, B vitamins, and dietary fiber, and
that eating whole grains in nutrient-dense forms may lower body weight and reduce
the risk of cardiovascular disease. 77 Fed. Reg. at 4093.

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64.

USDA found that, despite the benefits of whole grains, most of the

grains that schoolchildren were eating in schools were refined grains rather than
whole grains. Id.
65.

As USDA had done with respect to sodium, it adopted the whole grain

requirement recommended by the 2009 Nutrition Board Study and the Dietary
Guidelines and phased in that requirement. The 2012 Rule required that for the
2012-2013 and 2013-2014 school years, half of the grain products offered to students
be whole grain-rich, i.e., at least 51% whole grain. Id. at 4144, 4154-55 (codified at 7
C.F.R. §§ 210.10(c), 220.8(c)).
66.

Starting in the 2014-2015 school year, the 2012 Rule required schools

to serve only whole grain-rich products, as recommended in the 2009 Nutrition
Board Study and the Dietary Guidelines. Id.
67.

Thus, USDA found that the requirements for sodium and whole grain

in the 2012 Rule were consistent with the 2005-2010 Dietary Guidelines and the
recommendations in the 2009 Nutrition Board Study. 77 Fed. Reg at 4088.
68.

In addition, although the 2009 Nutrition Board Study was based on

the 2005-2010 Dietary Guidelines, USDA further found that the 2012 Rule was also
consistent with the 2010-2015 Guidelines. Id. at 4114 (“The final rule will more
closely align school meal pattern requirements with the science-based
recommendations of the 2005 and 2010 Dietary Guidelines”). The recommendations
for sodium and whole grains in the 2010-2015 Guidelines are the same as in the
2005-2010 Guidelines: adults should consume no more than 2300 mg of sodium

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daily and children should consume age-adjusted amounts based on that adult limit,
and at least half the grains consumed by children and adults should be whole
grains. 4
69.

Beginning in school year 2015-2016, Congressional appropriations acts

permitted States to grant waivers from the whole grain requirement to a school food
authority, for a particular product, if it demonstrated hardship in providing that
particular whole grain-rich product. When a waiver was granted, half the grain
products served by the school food authority were required to be whole grain-rich.
See 83 Fed. Reg. at 63,781; 82 Fed. Reg. at 56,714.
70.

The waiver program established by Congress expired after the 2017-

2018 school year. Id. In that school year, which was the third year that all grain
products served at school meals were required to be whole grain-rich, fewer than
20% of school food authorities were granted grain product waivers. See id.
71.

Manufacturers of processed foods provided for school meals—whether

purchased by USDA and distributed as USDA Foods or purchased directly by school
food authorities—formulate their products to meet USDA’s nutritional
requirements.
IV.

The 2017 Interim Final Rule.
72.

In November 2017, USDA issued an interim final rule extending two of

the 2012 Rule’s deadlines. Child Nutrition Programs: Flexibilities for Milk, Whole
Grains, and Sodium Requirements, 82 Fed. Reg. 56,703 (Nov. 30, 2017).

4

The current Dietary Guidelines (2015-2020) make the same recommendations.
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73.

The 2017 Interim Final Rule extended sodium target 1 for one year,

through school year 2018-2019, which delayed implementation of target 2 to the
2019-2020 school year. Id. at 56,704 (codified at 7 C.F.R. §§ 210.10(f)(3), 220.8(f)(3)).
74.

The 2017 Interim Final Rule also extended the product waiver

program for the whole grain requirement through school year 2018-2019. 82 Fed.
Reg. at 56,704 (codified at 7 C.F.R. §§ 210.10(c), 220.8(c)).
75.

USDA did not provide the public with notice of or an opportunity to

comment on the 2017 Interim Final Rule before it was issued.
76.

When USDA issued the 2017 Interim Final Rule, USDA invited the

public to comment “on the long term availability” of the “flexibilities”—the one-year
extension of sodium target 1 and the whole grain product waiver program—in the
Interim Final Rule to “help inform the development of a final rule,” 82 Fed. Reg. at
56,703. USDA also stated that it anticipated retaining sodium target 1 until school
year 2020-2021. Id. at 56,704. USDA did not state that it was considering
eliminating the final sodium target or eliminating the requirement that all grain
products served in school be whole-grain rich.
THE 2018 RULE
I.

The Provisions of the 2018 Rule.
77.

In 2018, USDA issued a final rule that significantly weakens the

nutritional requirements for sodium and whole grains applicable to the school lunch

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and breakfast programs. 5 Child Nutrition Programs: Flexibilities for Milk, Whole
Grains, and Sodium Requirements, 83 Fed. Reg. 63,775 (codified at 7 C.F.R.
§ 210.10; 7 C.F.R. § 220.8).
78.

First, the 2018 Rule eliminates the final sodium target, which would

have gone into effect in the 2022-23 school year. 83 Fed. Reg. at 63,776, 63,787.
79.

USDA explained that it eliminated the 2012 Rule’s final sodium target

because new Dietary Guidelines would be released in 2020 and the National
Academy of Sciences had undertaken a study to update the Dietary Reference
Intakes on sodium. 6 Id.
80.

The 2012 Rule’s final sodium target adopted the sodium limits for

children in the Dietary Guidelines—which remained the same in the 2005-2010,
2010-2015, and 2015-2020 Guidelines—and USDA’s elimination of that target is
inconsistent with those Guidelines.
81.

The 2012 Rule’s final sodium target also adopted the recommended

sodium limits in the 2009 Nutrition Board Study and USDA’s elimination of that
target conflicts with the Study.

The 2018 Rule also revised the 2012 Rule’s requirement for serving flavored milk
by allowing schools to serve flavored milk with 1% fat, rather than only no-fat
flavored milk. 83 Fed. Reg. at 63,778-80. The States do not challenge that revision.

5

The new Dietary Reference Intakes were released by the National Academy of
Sciences on March 5, 2019. The sodium limits for children ages 4 to 13 in the new
Dietary Intakes are lower than the limits on which the final sodium target in the
2012 Rule was based. The new limits for ages 14 to 18 are the same as the limits on
which the final sodium target was based.
6

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82.

USDA did not explain how its elimination of the sodium limits in the

Dietary Guidelines and the 2009 Nutrition Board Study was “consistent with the
goals of the most recent Dietary Guidelines for Americans” and “based on” the
Nutrition Board’s recommendations, as required by the School Lunch Act, 42 U.S.C.
§§ 1758(f)(1), 1753(b)(3)(A).
83.

USDA did not base its elimination of the final sodium target on “tested

nutritional research,” as required by the School Lunch Act, id. § 1758(a)(1), and the
Child Nutrition Act, id. § 1773(e)(1).
84.

USDA also did not base its elimination of the final sodium target on

any other nutritional science, nor did it rely on any change in the scientific evidence
regarding children’s nutrition since the promulgation of the 2012 Rule.
85.

Second, the 2018 Rule delays by five years the requirement for schools

to meet sodium target 2, from school year 2019-2020 to school year 2024-2025. 83
Fed. Reg. at 63,776.
86.

USDA stated that it delayed sodium target 2 to allow “more time for

product reformulation, school menu adjustments, food service changes, personnel
training, and changes in student preferences.” Id. at 63,783.
87.

USDA stated that its delay of sodium target 2 will provide “certainty”

to the food industry but did not explain why the delay provides greater certainty
than the prior deadline. See id. at 63,785.
88.

USDA acknowledged that “[m]ore than 9 in 10 U.S. school children eat

more sodium than the age-specific Tolerable Upper Intake Level.” Id. at 63,787.

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89.

USDA also acknowledged that, under sodium target 1, which has been

in effect since the 2014-2015 school year, schoolchildren are consuming over 90% of
their daily recommended sodium limit just in school breakfast and lunch. Id. at
63,787.
90.

USDA did not explain how its delay of sodium target 2 was “consistent

with the goals of the most recent Dietary Guidelines for Americans” and “based on”
the Nutrition Board’s recommendations, as required by the School Lunch Act, 42
U.S.C. §§ 1758(f)(1), 1753(b)(3)(A).
91.

USDA did not base its delay of sodium target 2 on “tested nutritional

research,” as required by the School Lunch Act, id. § 1758(a)(1), and the Child
Nutrition Act, id. § 1773(e)(1).
92.

USDA also did not base its delay of sodium target 2 on any other

nutritional science, nor did it rely on any change in the scientific evidence regarding
children’s nutrition since the promulgation of the 2012 Rule.
93.

Third, the 2018 Rule requires only half of the weekly grains offered to

students to be whole grain-rich. 83 Fed. Reg. at 63,776. Under the 2012 Rule,
schools had been required to offer only whole grain-rich products—i.e., products
containing at least 51% whole grains—beginning in school year 2014-15. Id. at
63,786.
94.

USDA stated that lowering the 2012 Rule’s whole grain requirement

“is consistent with USDA’s commitment to alleviate difficult regulatory

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requirements, simplify operational procedures, and provide school food authorities
ample flexibility to address local preferences.” Id. at 63,781.
95.

USDA also stated that the requirement that all grain products be

whole grain-rich “proved impractical for many school districts” but acknowledged
that fewer than 20% of school food authorities had been granted product waivers for
the 2017-2018 school year. See id.
96.

The 2012 Rule adopted the whole-grain rich standard in the Dietary

Guidelines—which remained the same in the 2005-2010, 2010-2015, and 2015-2020
Guidelines—beginning in the 2014-2015 school year. Lowering that standard to
require that only half of grain products be whole grain-rich is inconsistent with the
2015-2020 Dietary Guidelines.
97.

The 2012 Rule also adopted the whole-grain rich standard in the 2009

Nutrition Board Study beginning in the 2014-2105 school year. Lowering that
standard to require that only half of grain products be whole grain-rich conflicts
with the 2009 Nutrition Board Study.
98.

USDA did not explain how lowering the whole grain requirement

recommended by the Dietary Guidelines and the 2009 Nutrition Board Study was
“consistent with the goals of the latest Dietary Guidelines for Americans” and
“based on” the Nutrition Board’s recommendations, as required by the School Lunch
Act, 42 U.S.C. §§ 1758(a)(4), 1758(f)(1), 1753(b).

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99.

USDA did not base its lowering of the 2012 Rule’s whole grain

requirement on “tested nutritional research,” as required by the School Lunch Act,
id. § 1758(a)(1), and the Child Nutrition Act, id. § 1773(e)(1).
100.

USDA also did not base its lowering of the 2012 Rule’s whole grain

requirement on any other nutritional science, nor did it rely on any change in the
scientific evidence regarding children’s nutrition since the promulgation of the 2012
Rule.
101.

The 2018 Rule was not issued as a proposed rule nor was there an

opportunity for comment on it.
102.

USDA characterizes the 2018 Rule as a “culmination” of a rulemaking

process that included the 2017 Interim Final Rule. 83 Fed. Reg. 63,776. However,
the Interim Final Rule did not make the changes to the 2012 Rule’s sodium and
whole grain requirements that were later made by the 2018 Rule, or provide notice
that USDA proposed to make those changes. Thus, the opportunity to comment on
the 2017 Interim Final Rule was not a meaningful opportunity to comment on the
changes.
II.

The 2018 Rule Harms the States.
103.

Except the District of Columbia, the States have quasi-sovereign (or

parens patriae), sovereign, and proprietary interests in the health and well-being of
children who live in the States and obtain a substantial portion of their daily
nutrition from the school lunch and breakfast programs.

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104.

The District of Columbia asserts its quasi-sovereign (or parens patriae)

interests, its proprietary interests, and its authority to enforce its laws and uphold
the public interest under its Attorney General Act, which was intended to
incorporate the common law authority of state attorneys general. See D.C. Code § 1301.81.
105.

USDA has acknowledged that children who eat school meals will be

impacted by the 2018 Rule. USDA Food and Nutrition Service, Civil Rights Impact
Analysis, at 5 (Oct. 15, 2018). 7
106.

The 2018 Rule will expose children who live in the States and eat

meals in schools to health consequences to which they would not have been exposed
if USDA had not eliminated the final sodium target, delayed sodium target 2, and
lowered the whole grain requirement.
107.

As USDA found when it issued the 2012 Rule, high-sodium diets

adversely affect students’ cardiovascular health and increase the risk of chronic
cardiovascular disease. 77 Fed. Reg. at 4097-98.
108.

As USDA also found when it issued the 2012 Rule, whole grains “are a

source of nutrients such as iron, magnesium, selenium, B vitamins, and dietary
fiber” and “evidence suggests that eating whole grains in nutrient dense forms may
lower body weight and reduce the risk of cardiovascular disease.” Id. at 4093.
109.

School meals with higher levels of sodium and lower whole grains pose

particular harm to children and adolescents who have elevated risk factors for

7

Available at https://www.regulations.gov/document?D=FNS-2017-0021-7771.
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cardiovascular disease and other health problems due to obesity. As the USDA
observed when it proposed the 2012 Rule, the Centers for Disease Control has found
that about 17% of children and adolescents in the United States between the ages of
6 and 19 are obese and are “more likely to have risk factors associated with
cardiovascular disease (such as high blood pressure, high cholesterol, and Type 2
diabetes) than other children and adolescents.” 76 Fed. Reg. at 2495.
110.

The childhood obesity epidemic is associated with approximately $3

billion in direct medical costs. 77 Fed. Reg. at 4133.
111.

The States pay health care costs for eligible low-income and moderate-

income residents, including children, through a number of programs funded in
whole or in part by the States.
112.

USDA has acknowledged that “given racial disparities in health

outcomes, there is the potential for an adverse impact” on Black and Latino
schoolchildren caused by the delay of sodium target 2 and the weakening of the
whole grain requirement. Civil Rights Impact Analysis, at 4-5.

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113.

The 2018 Rule makes the following changes to the 2012 Rule’s sodium

targets:
Sodium Targets for School Lunches and Breakfasts
Under the 2012 Rule and the 2018 Rule
Sodium
Target

Grades K-5

Grades 6-8 Grades 9-12

Sodium
Target 1

≤ 1770 mg

≤ 1960 mg

≤ 2060 mg

Sodium
Target 2

≤ 1420 mg

≤ 1570 mg

Final
Sodium
Target

≤ 1070 mg

≤ 1180 mg

114.

2012 Rule
Timeline
(School
Years)
2014-15 to
2016-17
(extended to
2018-19)

2018 Rule
Timeline
(School
Years)
Extended
to 2023-24

≤ 1650 mg

2019-20 to
2021-22

Starts
2024-25

≤ 1240 mg

Starts
2022-2023

Eliminated

Sodium target 1, which was implemented beginning in school year

2014-2015 pursuant to the 2012 Rule, reduced sodium in elementary school lunches
by approximately 11% from the pre-2012 Rule baseline and in elementary school
breakfasts by approximately 5% from that baseline. See 77 Fed. Reg. at 4097-98.
115.

Before the 2018 Rule, sodium target 2 was required to be implemented

beginning in the 2019-2020 school year and would have reduced sodium in
elementary school lunches by approximately 32% and in elementary school
breakfasts by approximately 15% from the pre-2012 Rule baseline. See id. The 2018
Rule delays the implementation of sodium target 2 to the 2024-2025 school year.
116.

Under the 2012 Rule, the final sodium target was required to be

implemented by the 2022-2023 school year and would have reduced sodium in
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elementary school lunches by approximately 54% and in elementary school
breakfasts by approximately 25% from the pre-2012 Rule baseline. 77 Fed. Reg. at
4097-98. The 2018 Rule eliminates the final sodium target entirely.
117.

Under the 2012 Rule, all grain products served in school meals were

required to be whole grain-rich starting in the 2014-2015 school year. Under the
2018 Rule, only half of the grain products served in school meals are required to be
whole grain-rich.
118.

USDA Foods and foods that schools purchase directly from food

manufacturers are formulated to meet USDA’s nutritional requirements.
119.

Reduced-sodium food products are likely to cost more than products

without reduced sodium because sodium is one of the lowest-cost ingredients in food
products and any sodium substitutes that help to maintain flavor are likely to cost
more.
120.

As a result of the 2018 Rule, schools in the States will serve food that

does not meet the 2012 Rule’s sodium and whole grain requirements.
121.

The 2018 Rule will have two impacts on the amount of sodium in

school meals, one as a result of the delay of sodium target 2 and the other as a
result of the elimination of the final sodium target.
122.

As a result of the 2018 Rule’s delay of sodium target 2 from the 2019-

2020 school year until the 2024-2025 school year, children in the States will eat
school meals significantly higher in sodium until that school year than they would
have under the 2012 Rule.

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123.

As a result of the 2018 Rule’s elimination of the final sodium target

that was scheduled to go into effect in the 2022-2023 school year, children in the
States will eat school meals significantly higher in sodium beginning in that school
year than they would have under the 2012 Rule.
124.

As a result of the 2018 Rule’s lowering of the whole grain requirement

that had been in effect since the 2014-2015 school year, children in the States will
eat fewer whole grain-rich products than they would have under the 2012 Rule.
125.

Before the 2018 Rule, the States relied on the federal sodium and

whole grain requirements in the 2012 Rule. To enforce those federal requirements,
the States relied on “guidance, technical assistance, and tailored training programs”
provided by USDA. See 83 Fed. Reg. at 63,776.
126.

When USDA reduced the federal sodium and whole grain requirements

in the 2018 Rule, it stated that States can impose stricter requirements. Id. at
63,781, 63,783. States that promulgate their own stricter requirements as a result
of the 2018 Rule will have an increased regulatory burden.
127.

In response to the 2017 Interim Final Rule, the District of Columbia

passed the Healthy Students Amendment Act of 2018 which imposes the 2012
Rule’s whole grain requirement. D.C. Law 22-240.
128.

With respect to whole grains, the District of Columbia requires that

“[a]ll grain products shall be whole grain-rich,” meaning that the products contain
at least 50% whole grains. Id.

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129.

In order to enforce its whole grain requirement, the District of

Columbia will need to develop and implement its own training techniques and
compliance tools.
130.

To implement its whole grain requirement, the school food authorities

in the District of Columbia will have to make greater effort to procure whole grainrich products than it would have if USDA had not lowered the 2012 Rule’s whole
grain requirement.
FIRST CLAIM FOR RELIEF
The 2018 Rule Was Promulgated Without Notice and Comment
131.

The States reallege and incorporate by reference the allegations set

forth in all preceding paragraphs.
132.

The APA provides that this Court “shall” “hold unlawful and set aside”

agency rules adopted “without observance of procedure required by law.” 5 U.S.C.
§ 706(2)(D).
133.

Under the APA, a federal agency must publish notice of a proposed

rulemaking in the Federal Register, 5 U.S.C. § 553(b), and “shall give interested
persons an opportunity to participate in the rule making through submission of
written data, views, or arguments.” Id. at § 553(c).
134.

The opportunity for public comment under 5 U.S.C. § 553(c) must be

meaningful, which means the agency must allow comment on the relevant issues.
An agency may only issue a rule after “consideration of the relevant matter
presented” in public comments. 5 U.S.C. § 553(c).

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135.

USDA did not provide the States notice of or an opportunity to

comment on the provisions in the 2018 Rule that eliminate the final sodium target,
delay compliance with sodium target 2, and cut in half the whole grain requirement.
136.

The opportunity to comment on the 2017 Interim Final Rule after its

promulgation did not constitute an opportunity to comment on those provisions.
137.

As a result, those provisions of the 2018 Rule were adopted “without

observance of procedure required by law” and should be held unlawful and set aside
under the APA, 5 U.S.C. § 706(2)(D).
SECOND CLAIM FOR RELIEF
The 2018 Rule Is Not in Accordance with Law
138.

The States reallege and incorporate by reference the allegations set

forth in all preceding paragraphs.
139.

The APA provides that this Court “shall” “hold unlawful and set aside”

agency action that is “not in accordance with law.” 5 U.S.C. § 706(2)(A).
140.

The School Lunch Act and Child Nutrition Act require school meals to

meet nutritional requirements prescribed by USDA “on the basis of tested
nutritional research.” 42 U.S.C. §§ 1758(a)(1) (School Lunch Act) and 1773(e)(1)
(Child Nutrition Act).
141.

The School Lunch Act requires the nutritional requirements for school

meals to “be consistent with the goals of the most recent Dietary Guidelines for
Americans” and “based on” the Nutrition Board’s 2009 recommendations. Id.
§§ 1753(b), 1758(f)(1).

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142.

The provisions in the 2018 Rule that eliminate the final sodium target,

delay compliance with sodium target 2, and cut in half the whole grain requirement
are not based on tested nutritional research, consistent with the 2015-2020 Dietary
Guidelines, or based on the 2009 Nutrition Board Study.
143.

As a result, those provisions of the 2018 Rule are not in accordance

with the School Lunch and Child Nutrition Acts and should be held unlawful and
set aside under the APA, 5 U.S.C. § 706(2)(A).
THIRD CLAIM FOR RELIEF
The 2018 Rule Is Arbitrary and Capricious
144.

The States reallege and incorporate by reference the allegations set

forth in all preceding paragraphs.
145.

The APA provides that this Court “shall” “hold unlawful and set aside”

agency action that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C.
§ 706(2)(A).
146.

The provisions in the 2018 Rule that eliminate the final sodium target,

delay compliance with sodium target 2, and cut in half the whole grain requirement
are not based on nutritional science or any change in the scientific evidence
regarding children’s nutrition since the 2012 Rule was issued.
147.

Those provisions do not rely on the factors that Congress required

USDA to consider: tested nutritional research, the goals of the most recent Dietary
Guidelines, and the 2009 Nutrition Board Study. See 42 U.S.C. §§ 1753(b),
1758(a)(4), 1758(a)(1), 1773(e)(1).

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148.

Those provisions were issued without a reasoned explanation,

including explanation of why USDA revised the sodium and whole grain
requirements in the 2012 Rule.
149.

It was unreasonable to revise the sodium and whole grain

requirements in the 2012 Rule on the grounds that new Dietary Guidelines would
be released in 2020 and the National Academy of Sciences had undertaken a new
study on sodium.
150.

As a result, those provisions of the 2018 Rule are arbitrary and

capricious and should be held unlawful and set aside under the APA, 5 U.S.C.
§ 706(2)(A).
PRAYER FOR RELIEF
WHEREFORE, the States respectfully request that this Court enter
judgment:
A.

Declaring that the provisions in the 2018 Rule that eliminate the final
sodium target, delay compliance with sodium target 2, and cut in half
the whole grain requirement were adopted without observance of
procedure required by law, are not in accordance with law, and are
arbitrary and capricious;

B.

Holding unlawful and setting aside those provisions;

C.

Awarding plaintiffs their reasonable fees, costs, and expenses,
including attorneys’ fees, pursuant to 28 U.S.C. § 2412; and

D.

Granting such further relief as the Court deems just and proper.

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DATED: April 3, 2019
Respectfully Submitted,
LETITIA JAMES
Attorney General of the State of New York
By: /s/ Samantha Liskow
Matthew Colangelo
Chief Counsel for Federal Initiatives
Monica Wagner
Deputy Chief, Environmental Protection Bureau
Samantha Liskow
Assistant Attorney General
Max Shterngel
Assistant Attorney General
Office of the New York State Attorney General
28 Liberty Street
New York, NY 10005
Phone: [phone]
[e-mail]
Attorneys for Plaintiff New York

XAVIER BECERRA
Attorney General of California
Michael L. Newman
Senior Assistant Attorney General
Sarah E. Belton
Supervising Deputy Attorney General
By: /s/ Julia Harumi Mass
Julia Harumi Mass*
Deputy Attorney General
Office of the California Attorney General
1515 Clay Street, Suite 2000
Oakland, CA 94612-1492
Telephone: [phone]
[e-mail]
Attorneys for Plaintiff California

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KARL A. RACINE
Attorney General
District of Columbia
By: /s/ Robyn R. Bender
Robyn R. Bender*
Deputy Attorney General
Valerie M. Nannery*
Assistant Attorney General
Office of the Attorney General for
the District of Columbia
441 4th Street, N.W., Suite 630 South
Washington, DC 20001
Tel [phone]
Fax [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff the District of Columbia
KWAME RAOUL
Attorney General of Illinois
By: /s/ Jamie D. Getz
Jamie D. Getz*
Assistant Attorney General
Environmental Bureau
Illinois Attorney General’s Office
69 W. Washington St., 18th Floor
Chicago, Illinois 60602
[phone]
[e-mail]
Attorneys for Plaintiff Illinois

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KEITH ELLISON
Attorney General
State of Minnesota
By: /s/ Max Keiley
Max Keiley*
Christina Brown*
Assistant Attorneys General
Office of the Minnesota Attorney General
445 Minnesota Street, Suite 900
St. Paul, Minnesota 55101-2127
[phone] (Voice)
[phone] (Fax)
[e-mail]
Attorneys for Plaintiff Minnesota
HECTOR BALDERAS
Attorney General of New Mexico
By: /s/ Tania Maestas
Tania Maestas*
Deputy Attorney General
New Mexico Attorney General
P.O. Drawer 1508
Santa Fe, NM 87504
[phone]
(844)-255-9210
[e-mail]
Attorneys for Plaintiff New Mexico
THOMAS J. DONOVAN, JR.
Attorney General of Vermont
By: /s/ Jill Abrams
Jill Abrams
Assistant Attorney General
Office of the Vermont Attorney General
109 State Street
Montpelier, VT 05609-1001
[phone]
[e-mail]
Attorneys for Plaintiff Vermont
*Not yet admitted to the Bar of this Court.
35