Aragon v. Rollins

majority opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

NIEVES ARAGON, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 26-0861 (ABJ)

)

BROOKE ROLLINS, )

in her official capacity as )

Secretary of Agriculture, et al., )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION

Plaintiffs Nieves Aragon, Marc Craig, Nathan Fleming, Amanda Johnson, and Hunter

Starks are individuals who participate in the Supplemental Nutrition Assistance Program

(“SNAP”) in Colorado, Iowa, Nebraska, Tennessee, and West Virginia. Compl. [Dkt. # 1]

¶¶ 18–22. SNAP is a federally funded, state-administered program that provides monetary

benefits to low-income households to buy authorized food products at participating retailers.

7 U.S.C. §§ 2011–14.

Plaintiffs brought this action against the United States Department of Agriculture

(“USDA”) and Brooke Rollins, in her official capacity as Secretary of Agriculture (“Secretary”),

to challenge their approval of state pilot projects that restrict SNAP participants from buying

certain foods and beverages with SNAP benefits. Compl. ¶¶ 1–14, 23. The complaint consists

of three counts under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.,

claiming that defendants exceeded their statutory authority, failed to engage in reasoned

decision-making, and disregarded a mandatory procedural requirement when approving the pilot

projects. Compl. ¶ 14.

Plaintiffs filed the complaint on March 11, 2026, and on March 19, they filed an

emergency motion for a temporary restraining order, preliminary injunction, and a stay pending

review under 5 U.S.C. § 705. Pls.’ Mot. for a TRO, Prelim. Inj., & Other Relief [Dkt. # 9]

(“Pls.’ Mot.”). After a scheduling hearing in which it heard from the parties, the Court

consolidated consideration of the emergency motion with the resolution of the case on the merits.

Minute Order (Mar. 20, 2026). It deemed plaintiffs’ emergency motion to be a motion for

summary judgment, established a briefing schedule, and set a motions hearing for May 1, 2026.

Id.

On April 3, 2026, defendants filed the administrative record and their combined crossmotion for summary judgment and opposition to plaintiffs’ motion. Admin. R. [Dkt. # 17]

(“A.R.”); Defs.’ Cross-Mot. for Summ. J & Opp. to Pls.’ Mot. [Dkt. # 18] (“Defs.’ Cross-Mot.”).

The motions have been fully briefed by the parties, and two amicus briefs have been submitted

as well. See Pls.’ Reply in Supp. of Pls.’ Mot. & Opp. to Defs.’ Cross-Mot. [Dkt. # 24] (“Pls.’

Opp.”); Defs.’ Reply to Pls.’ Opp. [Dkt. # 29] (“Defs.’ Reply”); Br. of the Found. for Gov’t

Accountability as Amicus Curiae in Supp. of Defs. [Dkt. # 30] (“Foundation Amicus Br.”); Br.

of the States of Nebraska, Iowa, Tennessee, and West Virginia as Amicus Curiae in Supp. of

Defs. [Dkt. # 32] (“States’ Amicus Br.”).

The Court held a hearing on the motions on May 1, see Minute Entry (May 1, 2026), and

called for supplemental briefing to address the effect of 7 U.S.C. § 2026(k) on the statutory

scheme at issue. See Minute Order (May 4, 2026); Pls.’ Suppl. Mem. [Dkt. # 34]; Defs.’ Suppl.

Mem. [Dkt. # 35].

Upon consideration of the entire record, for the reasons stated below, plaintiffs’ motion

for summary judgment will be GRANTED, and defendants’ cross-motion for summary

judgment will be DENIED.

The Court will grant summary judgment in favor of plaintiffs on Counts One and Three,

and given those rulings and the remand to be ordered, it need not address Count Two. The

section of the statute the Secretary relies upon as authorization to approve the projects at issue,

7 U.S.C. § 2026(b), does not cover projects aimed towards improving the health of SNAP

recipients, and the agency sidestepped the section of the statute that does address those projects,

section 2026(k) – which sets out strict requirements they must meet – entirely.

Section 2026(b) authorizes projects related to the administrative and logistical efficiency

of the SNAP program itself, but the set of projects here all focus on banning certain products,

such as soda or candy, to tackle the health, nutrition, and obesity issues prevalent in the lowincome population. Meanwhile, section 2026(k) authorizes the Secretary to approve projects to

“us[e] [SNAP] to improve the dietary and health status of households eligible for or participating

in [SNAP]” and “to reduce overweight, obesity . . . , and associated co-morbidities.” With her

solicitation and approval of the pilot projects in this case, the Secretary purports to waive not just

a mere administrative or technical obstacle, but the very definition of “food” as it was laid down

by Congress. Neither the USDA nor the states can force this square peg into a round hole to

avoid the plain language of the statute and the requirements of 2026(k).

Defendants also failed to abide by the notice requirement of their own regulation,

7 C.F.R. § 282.1(b), which requires the USDA to post notice of pilot projects in the Federal

public. The agency’s terse statement that the pilot projects would not have a significant impact

on the public is entitled to little deference and it is directly contrary to the facts in the

administrative record.

The Court’s analysis should not be taken as a comment on whether the pilot projects are a

good idea or not. That is a question of policy that is not before the Court. The federal

defendants and the states may have a genuine desire to improve the health of SNAP households

by encouraging healthy choices at the store, and they can take lawful steps to meet those goals.

But what they cannot do is violate the law and their own regulations along the way.

BACKGROUND

A. Statutory Background

In 1964, Congress passed the Food Stamp Act, Pub. L. No. 88-525, 78 Stat. 703 (1964),

to establish a “cooperative Federal-State program of food assistance” with the purpose of

providing “improved levels of nutrition among low-income households.” Congress later

replaced the Food Stamp Act with the Food and Nutrition Act of 2008 (“FNA”), 7 U.S.C. § 2011

et seq., which renamed the Food Stamp Program as the Supplemental Nutrition Assistance

Program, or “SNAP.” Pub. L. No. 110-246, §§ 4001–02, 122 Stat. 1853 (2008). But Congress

underscored that the objective of the legislation remained:

To alleviate such hunger and malnutrition, a supplemental nutrition

assistance program is herein authorized which will permit low-income

households to obtain a more nutritious diet . . . by increasing food

purchasing power for all eligible households who apply for participation.

7 U.S.C. § 2011; see id. (“[T]o promote the general welfare, to safeguard the health and wellbeing of the Nation’s population by raising levels of nutrition among low-income households.”).

SNAP operates through the federal and state governments. The federal legislature

appropriates funds to the program, and the Secretary and Department of Agriculture are

authorized “to formulate and administer” the program “at the request of the State agency.” Id.

§ 2013(a). The Secretary establishes “uniform national standards for eligibility,” “prescribe[s]

appropriate procedures for the delivery of benefits,” and promulgates regulations that apply

nationwide to the program. Id. §§ 2014(b), 2016(d); see generally id. §§ 2014–2016. And the

Department’s Food and Nutrition Service (“FNS”) is charged with federal oversight of the

program, which includes responsibility for the monitoring and compliance of retailers who

participate in SNAP. A.R. 185.

States that participate in SNAP designate a single agency to be responsible for day-to-day

administration of the program and compliance with federal requirements. 7 U.S.C. § 2020(a).

Individual “households” apply to the state agency for SNAP benefits, and if they are approved,

the benefits are loaded onto an electronic benefit transfer card (“EBT card”) that can be used at

participating retailers to purchase products in the same manner as a debit card. Id. §§ 2014,

2016(h), 2020(a)(1).

While the Food and Nutrition Act accords some discretion to the states in how they

administer SNAP, see id. § 2020 (state administration), federal law contains definitions of key

terms that apply universally. See id. § 2012 (definitions). Those definitions include the term

“[f]ood,” which is statutorily defined as “any food or food product for home consumption except

alcoholic beverages, tobacco, hot foods or hot food products ready for immediate consumption.”

Id. § 2012(k).1 Under USDA regulation, SNAP benefits can only be used to purchase “food” as

defined by the statute. 7 C.F.R. § 274.8.

Section 2026(b) of the Food and Nutrition Act authorizes the Secretary of Agriculture to

“conduct on a trial basis, . . . pilot or experimental projects designed to test program changes that

1 The definition of food also contains several specific carveouts for certain groups, such as persons over the age of sixty and participants who are disabled, but those are not at issue in this case. See 7 U.S.C § 2012(k).

might increase the efficiency of [SNAP] and improve the delivery of [SNAP] benefits to eligible

households.” 7 U.S.C. § 2026(b)(1)(A). Under this section, the Secretary “may waive any

requirement of [the Act] to the extent necessary” for a project to be conducted. Id.

Pilot projects under section 2026(b) “may not be conducted unless (i) the project is

consistent with the goal of [SNAP] of providing food assistance to raise levels of nutrition

among low-income individuals; and (ii) the project includes an evaluation to determine the

effects of the project.” Id. § 2026(b)(1)(B)(i). According to the statute, the “Permissible

purposes” of such projects are: (1) to “improve program administration”; (2) to “increase the

self-sufficiency of [SNAP] recipients”; (3) to “test innovative welfare reform strategies”; or

(4) to “allow greater conformity with the rules of other programs than would be allowed but for

this paragraph.” Id. § 2026(b)(1)(B)(ii).

An entirely separate provision of the statute, section 2026(k), authorizes the Secretary to

carry out pilot projects to for the specific purpose of: (1) “using [SNAP] to improve the dietary

and health status of households eligible for or participating in the supplemental nutrition

assistance program”; and (2) “to reduce overweight, obesity (including childhood obesity), and

associated co-morbidities.” Id. § 2026(k)(1). This provision requires that the Secretary’s

selection of projects “must be evaluated against publicly disseminated criteria,” including:

(i) identification of a low-income target audience that corresponds to

individuals living in households with incomes at or below 185

percent of the poverty level;

(ii) incorporation of a scientifically based strategy that is designed to

improve diet quality through more healthful food purchases,

preparation, or consumption;

(iii) a commitment to a pilot project that allows for a rigorous outcome

evaluation, including data collection;

(iv) strategies to improve the nutritional value of food served during

school hours and during after-school hours;

(v) innovative ways to provide significant improvement to the health

and wellness of children;

(vi) other criteria, as determined by the Secretary.

Id. § 2026(k)(2)(C) (subsection titled “Selection criteria”). Pilot projects under section 2026(k)

“may” include those that “determine whether healthier food purchases by and healthier diets

among households participating in [SNAP] result from projects that”:

(A) increase the supplemental nutrition assistance purchasing power of the

participating households by providing increased supplemental

nutrition assistance program benefit allotments to the participating

households;

(B) increase access to farmers’ markets by participating households

through the electronic redemption of supplemental nutrition assistance

program benefits at farmers’ markets;

program retailers to increase the availability of healthy foods to

participating households;

(D) subject authorized supplemental nutrition assistance program retailers

to stricter retailer requirements with respect to carrying and stocking

healthful foods;

(E) provide incentives at the point of purchase to encourage households

participating in the supplemental nutrition assistance program to

purchase fruits, vegetables, or other healthful foods; or

(F) provide to participating households integrated communication and

education programs, including the provision of funding for a portion

of a school-based nutrition coordinator to implement a broad nutrition

action plan and parent nutrition education programs in elementary

schools, separately or in combination with pilot projects carried out

under subparagraphs (A) through (E).

Id. § 2026(k)(3)(A)–(F).

The USDA has promulgated regulations governing the approval of pilot projects under

either section 2026(b) or section 2026(k). These include a notice provision:

At least 30 days prior to the initiation of a demonstration project, FNS

shall publish a General Notice in the Federal Register if the demonstration

project will likely have a significant impact on the public. The notice shall

set forth the specific operational procedures and shall explain the basis and

purpose of the demonstration project. If significant comments are

received in response to this General Notice, the Department will take such

action as may be appropriate prior to implementing the project. If the

operational procedures contained in the General Notice described above

are significantly changed because of comments, an amended General

Notice will be published in the Federal Register at least 30 days prior to

the initiation of the demonstration project, except where good cause exists

supporting a shorter effective date. The explanation for the determination

of good cause will be published with the amended General Notice. The

amended General Notice will also explain the basis and purpose of the

change.

7 C.F.R. § 282.1(b).

Finally, the Food and Nutrition Act lays out consequences for households and retailers

that fail to abide by program rules. If a federal court, state court, or an administrative agency

finds that a participant has used their SNAP benefits in violation of the FNA or the USDA’s

regulations, the participant “shall, immediately upon the rendering of such determination,

become ineligible for further participation in the program.” 7 U.S.C. § 2015(b)(1). Individuals

who knowingly use SNAP benefits “in any manner contrary to the [FNA] or the regulations

issued pursuant to [the FNA]” can also be subject to criminal penalties. See id. § 2024(b)(1)

(listing felony and misdemeanor penalties). Retailers can also be disqualified from the program

if they accept SNAP benefits for impermissible purposes. Id. § 2021(a)(1)(A); 7 C.F.R.

§ 278.1(l).

B. Factual Background

This case concerns pilot projects that the Secretary and the USDA solicited and approved

in Colorado, Iowa, Nebraska, Tennessee, and West Virginia. For each project, the state sought a

“waiver” to exempt certain foods and beverages from the Food and Nutrition Act’s definition of

“food,” and in turn, each project bars SNAP participants from purchasing those foods and

beverages with SNAP benefits. The federal defendants approved all of the projects in reliance

upon their authority under 7 U.S.C. § 2026(b), and every project encompasses all of the SNAP

participants in the given state, with no opt-outs for any participant on any basis. The projects

have already begun in Colorado, Iowa, Nebraska, and West Virginia, and the Tennessee project

is scheduled to go into effect on July 31, 2026.

The administrative record contains a similar set of documents related to the approval of

each pilot project, including: (1) the state’s request proposing the pilot project; (2) the USDA’s

letter of approval summarizing the project and setting conditions the state must satisfy before

implementation; and (3) further planning documentation issued by both the states and the federal

government, covering certain aspects of implementation.2 Because the requests, approvals, and

the planning documentation follow the same pattern, and the substance is generally similar, the

Court will lay out the timeline and the details of all the projects together, rather individually.

1. The federal government’s call to action

On February 13, 2025, Brooke Rollins was sworn into office as the Secretary of

Agriculture, and on the same day, she sent a letter to all state, tribal, territory, and local

government partners of the USDA. A.R. 193–94; Brooke L. Rollins Sworn in as 33rd U.S.

Secretary of Agriculture, U.S. Dep’t of Agric. (Feb. 13, 2025), https://perma.cc/W9HW-GMGP.

The letter stated:

2 The record also includes a category of documents that defendants labelled as “Technical Assistance to the States.” See A.R. 498–787. It contains communications and drafts shared between the states and the USDA to prepare the pilot project requests and then implement the projects.

I am inviting every State, territory, and tribal leader in the nation to

participate in our “Laboratories of Innovation” initiative to serve as policy

incubators and bring greater efficiency to government programs. We

encourage you propose bold ideas to address challenges that have long

plagued our nation, particularly rural communities. . . . This includes bold

plans to combat avian flu and make food prices more affordable; new

initiatives to bring more jobs and economic opportunities to rural

communities and ensure that we equip and empower the next generation

of American farmers; create partnerships to improve infrastructure and

internet connectivity in remote areas; and much-needed reforms to

nutrition assistance programs to promote the dignity of work and healthy

eating habits to ensure our citizens live longer, more abundant lives.

A.R. 193–94.

The USDA then sent the states a template for a “SNAP Healthy Choice/Food Restriction

State Demonstration Request.” See, e.g., A.R. 3, 78. The introduction explained that “this

template intends to guide and assist States in submitting a SNAP Food Restriction

Demonstration Project Request.” A.R. 3. It stated that the federal agency had authority under

section 2026(b) of the Food and Nutrition Act “to waive statutory requirements of the Act to

conduct pilot projects,” subject to certain restrictions. A.R. 3. And it asserted that “SNAP Food

Restriction demonstration projects are intended to test innovative ideas that,” among other

things, “strengthen State strategies to encourage healthy choices, healthy outcomes, and healthy

families.” A.R. 3. It directed the states to “follow the guided prompts and questions and offer

any additional detail . . . under each section to ensure a complete understanding of the State’s

proposed project.” A.R. 3.

2. The states’ pilot project requests

Between April 1, 2025 and August 12, 2025, Iowa, Nebraska, West Virginia, Colorado,

and Tennessee submitted requests to the USDA to conduct pilot projects, and each request

followed the same structure.

First, each state sought to waive the federal definition of “food,” and replace it with a

definition that excluded specific items. A.R. 4–5, 26, 50, 63, 79. Colorado asked to modify the

definition to exclude “soft drinks,” defined as “nonalcoholic beverages that contain natural or

artificial sweeteners,” but not “beverages that contain milk or milk products, soy, rice, or similar

milk substitutes, or greater than fifty percent of vegetable or fruit juice by volume.” A.R. 5.

Nebraska similarly sought to exclude “Soda or ‘Soft Drinks’” and “Energy drink.” A.R. 50. It

defined “Soda or ‘Soft Drinks’” as “any carbonated non-alcoholic beverage that contains water, a

sweetening agent (including but not limited to sugar, high-fructose corn syrup, or artificial

sweeteners), flavoring, and carbon dioxide gas to create carbonation.” A.R. 50. And it defined

“Energy drink” as:

[C]arbonated or non-carbonated beverages containing a stimulant such as

fortified caffeine, guarana, glucuronolactone, or taurine. They may also

include herbal extracts such as ginseng, mineral salts and vitamins, or high

doses of organic acids, amino acids, inositol, sugars, or other similar

compounds in addition to sweeteners. Juices or natural fruit pulp or

concentrates may also be added. Energy drinks are specifically

formulated to enhance energy, alertness, or physical performance.

A.R. 50.

West Virginia requested permission to modify the federal definition to exclude “the

purchase of soda,” defined as:

[A]ny carbonated non-alcoholic beverage that contains water, a

sweetening agent (including but not limited to sugar, high-fructose corn

syrup, or artificial sweeteners), flavoring, and carbon dioxide gas to create

carbonation. This term includes beverages with added caffeine or other

ingredients but does not include carbonated water without sweeteners or

flavoring. The following drink options are not included in this waiver and

will remain available for purchase with SNAP: milk and milk products,

fruit and vegetable juice, or water and water products.

A.R. 79–80.

Tennessee’s request sought to exclude any:

(a) Processed foods that list sugar, cane sugar, corn syrup, or high fructose

corn syrup as the first ingredient, excluding granulated sugar, raw sugar,

and other single-ingredient sugars used for cooking and baking.

(b) Beverages that list carbonated water and sugar, cane sugar, corn syrup,

and high fructose corn syrup as the first two ingredients. Beverages that

list aspartame or other low- or non- caloric sweeteners as the first two

ingredients remain eligible for purchase.

A.R. 63.

Iowa sought to replace the federal definition with “all nontaxable food items as defined

by the Iowa Department of Revenue,” which would exclude an array of items that it noted in a

chart:

Food Items Beverages

Seeds for food producing plants and food Carbonated and noncarbonated soft drinks, producing plants. including but not limited to colas, ginger ale,

near-beer, root beer, lemonade, orangeade

Candy, candy-coated items, and candy All other drinks or punches with natural fruit products, including gum, candy primarily or vegetable juice which contain 50 percent or intended for decorating baked goods, and hard less by volume natural fruit or vegetable juice; or soft candies including jelly beans, taffy, a typical example is Hi-C licorice, and mints and breath mints

Dried fruit leathers or other similar products Beverage mixes and ingredients intended to be prepared with natural or artificial sweeteners made into taxable beverages; liquid or frozen,

concentrated or non-concentrated, dehydrated,

powdered, granulated, sweetened or

unsweetened, seasoned or unseasoned

Sweetened baking chocolate in bars, pieces, or Concentrates intended to be made into chips beverages which contain 50% or less by

volume natural fruit or vegetable juice

Fruits, nuts, or other ingredients in Sweetened naturally or artificially sweetened combination with sugar, chocolate, honey, or water

other natural or artificial sweeteners in the

form of bars, drops, or pieces

Caramel wraps, caramel or other candy-coated

apples or other fruit; sweetened coconut,

marshmallows; Granola bars, unless they

contain flour

Mixes of candy pieces, dried fruits, nuts, and

similar items when candy is more than an

incidental ingredient in the product

Ready-to-eat caramel corn, kettle corn, and

other candy-coated popcorn

A.R. 26–27.

Each request announced that the project would cover the entire SNAP population of the

state, including every recipient and every participating retailer. A.R. 5, 28, 52, 63–64, 81. As

West Virginia put it:

As of March 2025, West Virginia had a statewide SNAP caseload of

146,488 households and 273,981 individual recipients. 100% of WV’s

SNAP caseload will be affected by this waiver. The waiver will span the

entire population as well as including both metropolitan and rural areas for

all ages. . . . This waiver will impact all SNAP retailers (2,118) in West

Virginia. All retailers must comply within 12 months of the waiver

implementation date, or they will not be eligible to be SNAP retailers.

A.R. 81–82; see also A.R. 28 (explaining that Iowa’s project would “apply to the entire Iowa

SNAP population”). None of the project requests provided any means to opt out of the

restrictions, for medical or any other reasons.

Each request also included the state’s justification for the project. Nebraska stated that its

project would “improve the health of low-income SNAP recipients and increase responsible

spending of federal SNAP dollars.” A.R. 52. The state made it clear that the program was

specifically directed towards reducing obesity and related medical conditions:

[D]ata shows Nebraska, like many others, is experiencing a health

epidemic further induced by diet-related chronic disease. Numerous

studies equate consumption of unhealthy food and drink, including soft

drinks, sweetened beverages, candy, and other junk food, to instances of

disease, including obesity, diabetes, high blood pressure, heart disease,

and even some cancers. Notably, the diet quality of SNAP families has

worsened over the past decade regardless of incentive programs and

nutrition education. . . . Multiple studies have shown that SNAP

participation is associated with increased obesity risk. While SNAP was

initially aimed at alleviating food shortfalls, many low-income individuals

today are overeating the wrong foods. Studies have shown that lowincome adults and children have higher obesity rates than other

Americans. A recent review by Jerold Mande and Grace Flaherty found

that children participating in SNAP were more likely to have elevated

disease risk and consume more sugar-sweetened beverages, more high-fat

dairy, and more processed meats than nonparticipants. . . . Implementing

this waiver may assist Nebraskans in consuming healthier options and

reduce chronic disease and the costs surrounding their medical care, which

is a necessary component in the move to make Nebraska healthy again.

A.R. 51–52.

West Virginia similarly posited that soda was “detrimental to the health of its SNAP

population and is antithetical to the purpose of the SNAP program,” and emphasized its desire to

“improve the health of low-income SNAP recipients and increase responsible spending of federal

SNAP dollars.” A.R. 79.

West Virginia, like other states, is experiencing a health epidemic of

obesity and other chronic diseases such as type 2 diabetes and heart

disease resulting from consumption of foods with high sugar content. One

of the most commonly purchased items in this category includes sugar

sweetened beverages (soda). Numerous studies have shown the

detrimental impact of consumption of items with high sugar content, and it

has been shown that more than half of sugar consumption is from sugar

sweetened beverages (soda).

***

West Virginia recently became the first state in the United States to create

a state law to ban harmful food additive dyes, including blue #1, blue #2,

red #3, red #40 and yellow #5 . . . . The request to exclude soda will assist

West Virginia in aligning our SNAP program goals with the overall health

goals of our state.

According to the Centers for Disease Control and Prevention (CDC), as of

2023, WV was one of only three states to have an obesity prevalence of

40% or greater (41.2%). Also, according to recent reports, approximately

73.9% of all West Virginians are either overweight or obese. These

statistics highlight significant public health challenges in the Mountain

State, with obesity being linked to various health issues.

***

In federal fiscal year 2024, West Virginia Medicaid (excluding CHIP)

paid $157,271,330.13 in pharmacy claims for medications related to

diabetes and weight management. This substantial expenditure

underscores the financial burden that obesity-related chronic illnesses

impose on public healthcare programs. Allowing SNAP benefits to be

used for the purchase of nutritionally void, sugar-sweetened beverages

may be contributing to these preventable health conditions and their

associated costs. Implementing policies that promote healthier food

choices within SNAP – such as restricting the purchase of soda pop – has

the potential to reduce the prevalence of diet-related disease and, in tum,

generate long-term savings for Medicaid and other taxpayer-funded

healthcare programs.

A.R. 80–81.

Tennessee’s stated goal was “to promote healthier eating habits among participants,

supporting improved health outcomes and reducing diet-related conditions by encouraging the

use of SNAP benefits for more nutritious food options.” A.R. 63. Colorado’s project was

designed to serve SNAP’s goal of “providing food assistance to raise levels of nutrition among

low-income individuals,” A.R. 5, and it would “ensure[] that SNAP dollars are not being spent

on sweetened beverages with no or negative nutritional value.” A.R. 9. And “Iowa wishe[d] to

refocus the SNAP program on its designed intent, ‘to promote the general welfare and safeguard

the health and wellbeing’ by encourage SNAP participants to purchase healthier food items.”

A.R. 28.

Then, to different extents, the requests laid out plans to implement the pilot projects.

West Virginia explained that it would “begin a comprehensive communications rollout two

months prior to the implementation date,” which would “be targeted specifically to SNAP

households, while informing the general public and stakeholder groups in food advocacy.” A.R.

85. The state would also “work to educate existing retailers about which items may be

purchased with SNAP,” and it would require retailers “to implement point-of-sale (POS) system

changes that support real-time transaction adjudication,” meaning that “[t]ransactions involving

restricted items will be automatically declined at the point of sale.” A.R. 82–83. The plans

called for the West Virginia Office of Inspector General to work with USDA to construct “an

appropriate and operable plan to ensure WV SNAP retailers do not allow the purchase of soda

using SNAP benefits.” A.R. 84.

Nebraska offered that its “outreach efforts [would] be completed through multiple

avenues including text messages, collaboration with community partners, current nutrition

education efforts, and mailings, recipes and nutrition information made available on websites and

in-person classes and programs focused on healthy nutritious food choices.” A.R. 52. The state

would also work with the USDA to “ensure retailer compliance is maintained.” A.R. 52.

Colorado would finalize a plan to communicate the project to all stakeholders, and “work

with retailers of all sizes to develop strategies based on . . . size and technology.” A.R. 5–6. Its

compliance would be accomplished through an “annual Attestation by all Colorado retailers of

their compliance with the ‘soft drink’ restrictions.” A.R. 7.

Tennessee planned to communicate the requirements of the project through:

▪ Customer communication materials with clear messaging to support

understanding of the changes;

▪ Training materials for [state agency] and partner staff who interact

with SNAP customers, to ensure staff are prepared to explain the

changes and answer questions accurately and confidently;

▪ Retailer-facing resources available through a dedicated webpage and

electronic updates, such as signage templates, informational posters,

and FAQs to support communication at the point of sale;

▪ Dedicated webpage to support customers throughout the

demonstration.

A.R. 65. The state would create “an FAQ, standardized messaging, signage templates, talking

points for retailer staff, and other information that supports clear, uniform communication.”

A.R. 64. As for compliance, Tennessee planned to “ask retailers to complete an attestation form

affirming compliance” with the project. A.R. 65.

Finally, each request laid out the state’s plan to evaluate the outcome of the pilot projects.

Iowa explained that it would use a “mixed-methods approach . . . to understand the

programmatic impacts, participant shopping patterns, change in health behaviors, and changes in

youth health outcomes.” A.R. 28. The “question [it] would seek to answer” would be: “[a]re

there differences in participants healthy eating behaviors who receive nutrition education in

addition to SNAP benefits vs those who receive no education?” A.R. 29. And it would answer

that question by:

Conduct[ing] an impact study using a stratified sampling method to survey

and analyze participant shopping and eating patterns at pre, mid, and post

checkpoints. The sample size would include participants in both urban

and rural areas of Iowa. Pre would mean surveying before this

demonstration goes into effect, mid would mean surveying halfway

through this demonstration period, and post would be surveying at the

conclusion of the demonstration period. The purpose of this study would

be to assess how participants health is impacted by this demonstration and

if additional nutritional supports and education for participants leads to

higher health behavior change efficacy.

A.R. 28–29.

Nebraska’s “[p]reliminary plans” included “a pulse study for all SNAP participants on a

quarterly basis to evaluate their spending habits prior to the waiver implementation and in each

quarter following implementation.” A.R. 53. In addition, the state planned to “review SNAP

purchases and determine the reduction in purchases of soda and energy drinks,” and to “continue

to review reports and data regarding obesity rates for both adults and children in Nebraska.”

A.R. 53.

West Virgina would:

[I]ncorporate an analysis of Medicaid claims data to assess changes in

obesity-related health outcomes over the course of the demonstration

period. Specifically, the state will monitor trends in the diagnosis and

treatment of conditions closely associated with high consumption of

sugar-sweetened beverages, including Type 2 diabetes, hypertension,

obesity, and related cardiovascular diseases. By analyzing claims data

before and after implementation of the waiver, the state aims to identify

any correlation between reduced soda consumption - encouraged through

the restriction - and positive shifts in Medicaid utilization patterns.

The evaluation will involve longitudinal analysis of claims data across

affected SNAP households, using comparison groups to account for

confounding variables. West Virginia will also explore stratified data by

region, age group, and demographic characteristics to better understand

the waiver’s effects on subpopulations. As part of the evaluation plan, the

state may engage an external research partner to ensure methodological

rigor and to provide USDA with an independent analysis of the healthrelated impacts. These findings will be used not only to assess the

effectiveness of the waiver in promoting public health, but also to inform

the potential for permanent policy adoption.

***

The State agency through its partnership with WVU Extension Family

Nutrition Program (the implementing agency for WV SNAP-Ed) will

gather state specific data on soda consumption trends before and after the

restriction waiver, to determine improved health outcomes as a result of

decreased soda consumption. WV will utilize data from the CARDIAC

program to measure future health metrics for students.

WV SNAP-Ed will collect data about recipient beverage behavior and

consumption and related health outcomes, through adult direct education

outreach. This will include collecting surveys and interviews related to

beverage purchases consumption based on a 24-hour dietary recall.

A.R. 86. The state also announced plans to “assess potential impacts (economic, nutritional,

emotional), as well as understanding concerns such as stigma and food access for SNAP

households,” and it would “measure client satisfaction through existing tracking mechanisms.”

A.R. 87.

Colorado’s request explained that it would conduct:

an outcome study (examination of the extent to which an intervention

program achieves its stated goals; does not establish cause and effect

conclusions) using a convenience sampling approach to analyze

participant food purchasing and consumption behaviors at two time points:

pre-implementation and post implementation of the SNAP demonstration

project. Regular planning meetings will be held with The Colorado

Department of Human Services and The University of Colorado, Denver’s

Rocky Mountain Prevention Research Center.

The target population will be SNAP-enrolled Coloradans. Participants

will receive survey questions about their shopping and consumption

behaviors. Implementing agencies in Colorado that work with SNAPeligible populations will enroll participants through established

recruitment channels and/or use existing data to establish baseline

measures. The state will also survey SNAP-enrolled individuals about

their purchasing and consumption behaviors before and after the waiver

implementation.

A survey instrument will be developed to address the research questions.

The instrument will be created using the SNAP-Ed Evaluation Framework

and Interpretive Guide: specifically, indicators ST1 and MT1, which

measure goals and behaviors around dietary intake; as well as ST2 and

MT2, which measure goals and behaviors around grocery shopping. The

measures reflect the Transtheoretical model (Stages of Change).

A.R. 10–11.

Finally, Tennessee’s request stated that it would “develop retailer and customer

experience surveys to collect data on food purchasing habits, non-SNAP spending, and

qualitative data.” A.R. 67. The evaluation would “include an assessment of the . . . impact on

program access as it pertains to customers,” with “[d]ata elements” pertaining to “the number

and locations of approved retailers over time” and a “customer experience survey” that would

“include questions that measure customer satisfaction.” A.R. 67. It would also assess the

“impact on program access as it pertains to retailers” with the same data elements, along with a

“retailer experience survey” that would include questions measuring “retailer satisfaction.” A.R.

67.

3. The Secretary and USDA’s approval

For each state’s pilot project request, the Secretary and the USDA responded with an

approval letter that summarized the parameters of the project and set conditions the state had to

satisfy before implementation. A.R. 15–22, 31–39, 54–61, 69–76, 92–99.

Each letter specified that the project was approved “in accordance with the requirements”

of 7 U.S.C. § 2026(b) and authorized the state to waive the statutory definition of “food” to

replace it with the state’s proposed definition, sometimes with minor changes. A.R. 16–17, 32–

34, 55–56, 69–71, 93–94. As one example, West Virginia’s approval letter stated:

FNS is waiving this section to allow the State to modify the list of items

that can be excepted from the definition of “food” items. Items that are

not defined as “food” cannot be purchased with SNAP benefits at SNAPauthorized retailers in West Virginia. Specifically, the State amends the

definition’s language of “any food or food product for home consumption

except . . . ” to include as an exception, and therefore be ineligible for

purchase with SNAP, soda, which the State is defining as any carbonated

non-alcoholic beverage that contains water, a sweetening agent, flavoring,

and carbon dioxide gas to create carbonation.

A.R. 93.

Each approval letter then confirmed the project’s “Eligibility” and “Opt-Out” terms. As

to eligibility, the letters stated: “This project will apply to the entire [state] SNAP population

(100 percent of the SNAP caseload).” A.R. 16, 32, 56, 70, 93. As to opt-out, each letter

contained similar statements that:

No SNAP household in [the state] may opt out of the SNAP eligible food

restrictions project. The purpose of the Project is to evaluate the impact of

excluding soda from eligible purchases under SNAP on participant’s

consumption of these products and enhance the nutrition, and therefore the

health, of low-income families. As part of the evaluation of the Project

the State is developing key metrics and data collection methods including,

but not limited to, surveys, interviews, and dietary recalls. SNAP

households’ participation in these evaluation and data collection methods

is voluntary, and any household may opt into or out of the corresponding

evaluation tools.

A.R. 93–94 (West Virginia’s letter); see also A.R. 16, 32–33, 56, 70–71.

Each approval letter also laid out a list of requirements to be completed before

implementation of the project, which included:

▪ The State will provide a finalized communications plan detailing tasks

and timelines for engaging with and notifying SNAP-authorized

retailers of the Project.

▪ The State will provide a finalized communications plan detailing tasks

and timelines for notifying and educating SNAP households of the

Project.

▪ The State will provide a finalized evaluation plan defining Project

health outcomes and behaviors tracked throughout the Project.

▪ The State will provide a finalized proposed budget for the Project.

▪ The State will provide a finalized compliance and monitoring plan for

SNAP-authorized retailers.

▪ SNAP participants’ surveys, at a minimum, will collect the following

information:

• Meals and foods eaten outside the home or with foods not

purchased at SNAP authorized retailers.

• Purchase and/or consumption of less healthy or

“unhealthy” food items not restricted by the Project.

• Non-SNAP dollars spent to purchase food items restricted

by the Project.

• SNAP client’s ability and confidence in correctly

identifying food items that can or cannot be purchased with

SNAP benefits during the Project.

• The point in time in which the SNAP client became aware

of the Project and how (State SNAP webpage, retail store

signage, State press release, etc.).

• Any impacts the Project potentially had on participants

shopping routines (such as distance traveled to store,

increase spending of non-SNAP dollars, more frequent

shopping trips, etc.).

A.R. 18–20, 35–38, 57–60, 72–74, 94–97.

Moreover, the letters formalized each state’s evaluation method. A.R. 21–22, 38–39, 61,

74–75, 98. West Virginia’s letter stated:

To evaluate the Project the State will undertake a mixed-methods

approach, and activities will include tracking and analyzing SNAP

households and their purchasing habits. If possible, the State will use

retailer transaction data, loyalty card purchase records, and macro

spending EBT utilization data to track longitudinal shifts in purchasing

patterns for specific food and beverage categories over time. The State

will also look at Medicaid claims and CARDIAC program data to monitor

youth obesity and related conditions over time.

A.R. 98.

The letters approved each project to run for two years, with the projects in Iowa,

Nebraska, and West Virginia beginning on January 1, 2026, Colorado on April 30, 2026,3 and

Tennessee on July 31, 2026. A.R. 18, 35, 57, 71, 94.

i. Post-approval state planning and further guidance from the USDA

After each state received an approval letter, it submitted further documentation of the

preparatory activities the USDA required. For instance, the Colorado’s Office of Economic

Security, Division of Food & Energy Assistance drafted five documents: a “Participant

Communication Plan,” a “Retailer Communication Plan,” a “Retailer Monitoring and

Compliance Plan,” a “Waiver Evaluation,” and a draft “Waiver Survey.” A.R. 102–14.

The Participant Communication Plan stated that “Colorado does not have an

appropriation for SNAP communications” and “[i]t is unlikely that the [state agency] will have

funds become available,” so it “will leverage existing contracts, programs, and partnerships to

3 Colorado was granted a modification to postpone its project’s start date to April 30, 2026 because it needed “additional time for the State agency to engage in preparatory activities.” A.R. 23.

communicate the change.” A.R. 102. The state planned to “develop cogent posters, pamphlets,

and other print communications” in English and Spanish to post at “SNAP retailers, community

centers, food banks, and other non-profit partners,” and it would “develop a one-stop-shop

webpage . . . with detailed information about the products allowed and disallowed by the

waiver.” A.R. 102.

Colorado’s Retailer Communication Plan separated retailers into three groups: major

retailers and industry associations, small retailers, and new SNAP retailers. A.R. 104. For major

retailers, the plan explained that “[t]he State is in the process of creating active lines of

communication with the major retailers and State-based industry associations,” and it listed

points of contact from five retailers. A.R. 104. For small retailers, the state planned to “email

retailers to communicate the waiver and address implementation questions,” establishing

contacts by “leverage[ing] USDA’s list of existing SNAP retailers to verify email addresses,

[and] calling individual stores where needed to complete the list.” A.R. 104–05. For new SNAP

retailers, the state proposed to call the new retailer “within two weeks of publication by the

USDA.” A.R. 105.

The plan also divided retailer communication into an “initial phase” and an

“implementation phase.” A.R. 105. During the initial phase, the state would “develop and

provide periodic email updates to interested retailers,” establish a “dedicated and regular ‘Office

Hours’ for retailers . . . to ask questions and communicate their concerns,” create a dedicated

email contact, and provide a website support page. A.R. 105. During the implementation phase,

the state would “provide documentation to retailers that explains eligible and non-eligible

products, implementation guidance, the State’s Monitoring and Compliance Plan, and the SNAP

Participant Communication Plan.” A.R. 105.

The “Retailer Monitoring/Compliance” plan explained that compliance would “be

assessed based on retailers’ good faith efforts to implement and uphold the defined restrictions

within their point-of-sale systems.” A.R. 107. The state would “consider a retailer compliant so

long as they demonstrate a sincere and verifiable effort to follow the waiver’s requirements, even

if isolated errors occur during implementation.” A.R. 107. “Non-compliance meriting formal

penalties or federal referral” would be “limited to cases of known violations—where a retailer

has been clearly informed of improper transactions and has failed to take corrective action or has

willfully disregarded the waiver requirements.” A.R. 107.

The plan required all SNAP retailers “to submit an Attestation Form confirming their

compliance with the new SNAP . . . restrictions by a specified deadline identified during the

implementation . . . , and on an annual basis thereafter.” A.R. 107. “Retailers who fail to submit

the required Attestation by the specified deadline will be subject to follow-up outreach from the

State to address any barriers to compliance and offer additional support.” A.R. 107–08. Such

retailers would “be allowed 90 days to come into compliance and submit the Attestation,” but if

they continued non-compliance, the state would coordinate with the USDA “to determine the

appropriate course of action.” A.R. 108.

Colorado’s Waiver Evaluation addressed how the state would evaluate its program. A.R.

109–10. The document posed two research questions to be answered by the evaluation:

(1) “How do participants’ shopping, spending, and eating patterns change before and after the

SNAP program modifications are implemented?” and (2) “How does the exclusion of sugary

beverages impact shopping and consumption behaviors of SNAP-enrolled households?” A.R.

109. The document included the same evaluation plan contained in Colorado’s original request,

repeating that it would conduct an “outcome study” with two state institutions, “using a

convenience sampling approach to analyze participant food purchasing and consumption

behaviors at two time points: pre-implementation and post-implementation of the SNAP

demonstration project.” A.R. 109–10; compare A.R. 109–10 with A.R. 10–11.

Finally, Colorado supplied a draft to collect feedback on the pilot project from SNAP

participants. A.R. 111–14. The survey poses several questions, including: “How did you learn

about [the SNAP] restrictions?”; “How often do you purchase soft drinks?”; “Has your purchase

of soft drinks changed since the waiver?”; “How often do you purchase soft drinks using your

own money?”; “Since the waiver, have you purchased other types of foods or beverages instead

of soft drinks using your SNAP benefits?”; and “Since the waiver, how has your soft drink

consumption changed?” A.R. 111–14.

While the states were engaging in planning, the USDA also released information

regarding the implementation of the food restriction projects. On December 30, 2025, two days

before the first projects were set to begin, the agency issued an “Informational Memo” regarding

the agency’s position on “Food Restriction Waivers and General Notice Rule.” A.R. 190–92

(“December 30 memorandum”).

To date, [the agency] has approved 18 State agencies to implement SNAP

demonstration waiver projects that temporarily waive the definition of

SNAP eligible foods, referred to as SNAP Food Restriction Waivers.

[The agency] has approved these 18 State agencies to restrict the food

items that SNAP households can purchase using SNAP benefits. Each

State agency’s waiver is unique, but generally restricts non-nutritious,

accessory food items such as sweetened beverages, candies, and prepared

desserts.

If FNS determines that a SNAP demonstration project waiver “will likely

have a significant impact on the public,” federal rules of 7 CFR 282.1(b)

require [the agency] to publish a General Notice in the Federal Register at

least 30 days prior to implementation.

SNAP has determined that the General Notice Rule of 7 CFR 282.1(b) is

not applicable to the Food Restriction Waivers. Food Restriction Waivers

will limit the accessory food items that SNAP households residing in

implementing States can purchase with SNAP, but they will not change

SNAP eligibility criteria, allotment levels or access to staple foods.

Moreover, SNAP benefits are supplemental, calculated to cover only 70

percent of the household’s monthly food budget. SNAP households will

remain free to use cash to purchase SNAP restricted items.

A.R. 190.

As “[b]ackground” information, the memorandum also stated that:

▪ Prior to waiver implementation, State agencies have been engaging

intensively with SNAP retailers to coordinate implementation and

incorporate retailer feedback;

▪ State agencies are also providing notification and informational materials

about the changes to SNAP households and other stakeholders and have

developed websites to inform the public about the changes. All States

have issued press releases regarding the waivers and media coverage has

been extensive both locally and nationally;

▪ [The agency] has also created a webpage which posts all approved Food

Restriction Waivers publicly, summarizes restricted foods, and provides

implementation dates; and

▪ Prior to waiver implementation, [the agency] plans to issue State-specific

notices to retailers that serve SNAP participants of States implementing

[pilot projects].

A.R. 190.

On the same day, the USDA sent a memorandum to all of the approved state agencies to

clarify its “policies and plans for SNAP-retailer compliance with these SNAP waivers, including

guidance on which SNAP retailers must comply, online orders and deliveries, and the

consequences for non-compliance.” A.R. 182.

The memorandum stated that “[a]ll walk-in SNAP retailer stores physically located

within a State implementing a SNAP Food Restriction Waiver must comply with the State’s

waiver for all SNAP transactions.” A.R. 184. It went on to explain that:

Certain other retailers are also required to comply when fulfilling online

orders from a warehouse (fulfillment center), regardless of their location.

When a SNAP participant from an implementing State places an online

order using SNAP benefits and the retailer fulfills any part of the order

from a warehouse, the retailer must comply with the restrictions of that

participant’s State . . . . This applies to all transactions in which the order

is fulfilled from a warehouse not open to customers, whether shipped

directly to the customer’s address or to a designated pick-up location.

Some retailers will therefore be required to comply with multiple States’

waivers. Retailers fulfilling orders from warehouses can use the Stateissued SNAP EBT card’s Bank Identification Number (BIN) to determine

SNAP participants’ States.

A.R. 184. As an example, the memorandum described a scenario in which “Iowa, Nebraska, and

Colorado each have an approved SNAP Food Restriction Waiver.” A.R. 184. The warehouse

fulfilling the online order “must comply with: Iowa’s waiver for purchases made with an Iowa

EBT card; Nebraska’s waiver for purchases made with a Nebraska EBT card; and Colorado’s

waiver for purchases made with a Colorado EBT card.” A.R. 184.

The memorandum also explained USDA’s notification plan for retailers. It stated that

“[i]n advance of each State agency’s Food Restriction Waiver implementation date, [USDA] will

issue electronic notifications to SNAP authorized retailers required to comply with the waiver,”

and “[t]he notifications will also explain that retailers found to be non-compliant will be subject

to Involuntary Withdrawal for failure to effectuate the purpose of SNAP.” A.R. 185. USDA

would “also add a hard copy letter to its retailer training and informational materials and make

them publicly available on its retailer training page” and it would “plan[] to update the retailer

application to make clear that compliance with these waivers is a mandatory condition of SNAP

authorization.” A.R. 185.

The memorandum went on to describe the USDA’s plan to monitor retailers. A.R. 185.

The agency’s Office of Retailer Operations and Compliance would administer federal oversight

of the SNAP retailers, and “[t]hrough existing fraud detection practices,” it would conduct

“undercover investigations to determine if a retailer is complying with program requirements.”

A.R. 185. According to the memorandum, “[f]ollowing the implementation of a SNAP Food

Restriction Waiver, ROC investigators will incorporate attempts to purchase restricted items

according to the State’s SNAP Food Restriction policy, beginning 90 days after the

implementation date.” A.R. 185–86. And the memorandum reminded that, “[t]hough not

required by [USDA], State agencies may also employ resources to monitor SNAP retailer

compliance after implementation in close coordination with [USDA].” A.R. 186.

Finally, the memorandum laid out the consequences for retailers found to be noncompliant with the food restriction projects, which included a “90-Day Grace Period,” followed

by a “First Offense – Warning Letter,” a “Second Offense – Involuntary Withdrawal,” and then

“Administrative Review.” A.R. 186–87.

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and evidence show that “there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). However, in cases involving review of agency

action under the Administrative Procedure Act (“APA”), Rule 56 does not apply due to the

limited role of a court in reviewing the administrative record. Select Specialty Hosp.-Akron,

LLC v. Sebelius, 820 F. Supp. 2d 13, 21 (D.D.C. 2011). Under the APA, the agency’s role

is to resolve factual issues and arrive at a decision that is supported by the administrative

record, and the court’s role is to “determine whether or not as a matter of law the evidence

in the administrative record permitted the agency to make the decision it did.” Occidental

Eng’g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir. 1985), citing Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971); see also Richards v. INS, 554 F.2d 1173, 1177

& n.28 (D.C. Cir. 1977).

Under the APA, a court must “hold unlawful and set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law,” 5 U.S.C. § 706(2)(A), in excess of statutory authority, id. § 706(2)(C),

or “without observance of procedure required by law,” id. § 706(2)(D). However, the scope

of review is narrow. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983). The agency’s decision is presumed to be valid, see Citizens to

Preserve Overton Park, 401 U.S. at 415, and the court must not “substitute its judgment for

that of the agency.” State Farm, 463 U.S. at 43. A court must be satisfied, though, that

the agency has examined the relevant data and articulated a satisfactory explanation for its

action, “including a rational connection between the facts found and the choice made.”

Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (citations and internal quotation

marks omitted).

ANALYSIS

Plaintiffs bring three claims against the Secretary and the USDA. Count One alleges that

defendants’ approval of the food restriction pilot projects exceeded their statutory authority

under 7 U.S.C. § 2026(b). Compl. ¶¶ 188–92. Count Two alleges that the approval was

arbitrary and capricious. Compl. ¶¶ 193–99. And Count Three alleges that the approval was

procedurally defective because defendants did not comply with its notice and comment

obligations under 7 C.F.R. § 282.1(b). Compl. ¶¶ 200–06.

I. Plaintiffs have standing.

Before it addresses the merits, the Court must consider defendants’ contention that

plaintiffs lack standing to bring suit because they have not suffered an injury-in-fact. Defs.’

Cross-Mot. at 7.

Federal courts are courts of limited jurisdiction, and they possess “only that power

authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994). The court is “forbidden . . . from acting beyond [its] authority, and no action of

the parties can confer subject-matter jurisdiction upon a federal court.” NetworkIP, LLC v. Fed.

Commc’ns Comm’n, 548 F.3d 116, 120 (D.C. Cir. 2008) (internal quotation marks omitted).

Article III of the Constitution provides that federal courts may hear only “Cases” or

“Controversies” within its jurisdiction. U.S. Const. art. III, § 2, cl. 1. “[T]o give meaning to”

this requirement, “courts have developed a series of principles termed ‘justiciability doctrines,’”

which include standing, ripeness, mootness, and the political question doctrine. Nat’l Treasury

Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996), citing Allen v. Wright,

468 U.S. 737, 750 (1984).

The doctrine of standing considers whether the party seeking to invoke jurisdiction has

demonstrated “a personal stake in the outcome” of the case. Gill v. Whitford, 585 U.S. 48, 54

(2018), quoting Baker v. Carr, 369 U.S. 186, 204 (1962). To establish standing, the plaintiff

must show that: (1) he has suffered some actual or threatened injury as a result of the illegal

conduct of the defendant; (2) the injury fairly can be traced to the challenged actions; and (3) the

injury is likely to be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992).

As to the first element, injury-in-fact, the plaintiff must demonstrate that he has “suffered

‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or

imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016),

quoting Lujan, 504 U.S. at 560. To be “concrete,” the injury “must actually exist,” meaning that

it is real, and not abstract, although concreteness is “not . . . necessarily synonymous with

‘tangible.’” Id. at 340–41. And to be “particularized,” the injury must affect a plaintiff “in a

personal and individual way.” Id. at 340, quoting Lujan, 504 U.S. at 560 n.1. A “plaintiff

raising only a generally available grievance about government – claiming only harm to his and

every citizen’s interest in proper application of the Constitution and laws, and seeking relief that

no more directly and tangibly benefits him than it does the public at large – does not state an

Article III case or controversy.” Lujan, 504 U.S. at 573–74.

Plaintiffs have each submitted declarations describing their specific circumstances and

the impact the pilot projects have had or will have on them:

▪ Plaintiff Aragon is a single mother and recent graduate who works

part-time, and she has Type 1 diabetes. Decl. of Nieves Aragon, Ex. 1

to Pls.’ Mot. [Dkt. # 9-2] (“Aragon Decl.”) ¶¶ 3–6. Based on her

experience, “juice boxes and small cans of soda” are the quickest and

most reliable way to get her blood sugar under control, and Colorado’s

pilot project limits her ability to purchase those beverages. Id. ¶¶ 8–

11.

▪ Plaintiff Craig has diabetes and kidney issues, and Iowa’s complicated

restrictions prevent him from consistently buying foods that help him

manage his health needs, such as pre-packaged salads and sandwiches.

Decl. of Marc Craig, Ex. 2 to Pls.’ Mot. [Dkt. # 9-3] (“Craig Decl.”)

¶¶ 9, 19–26, 34. Craig must also maintain proper hydration to manage

his kidney disease, but the restrictions prevent him from doing so with

Pedialyte or Gatorade. Id. ¶¶ 31–33.

▪ Plaintiff Fleming has a chronic spine condition and chronic insomnia,

and he is allergic to most plants and plant products. Decl. of Nathan

Fleming, Ex. 3 to Pls.’ Mot. [Dkt. # 9-4] (“Fleming Decl.”) ¶¶ 6–7. In

light of the insomnia, Fleming needs to consume caffeine throughout

the day to stay awake, but because he is allergic to coffee and tea, his

dietician has recommended low or no sugar energy drinks. Id. ¶¶ 8–

11. The Nebraska project bans all energy drinks, so Fleming can no

longer purchase the recommended beverages. Id. ¶¶ 12–13.

▪ Plaintiff Johnson is the mother and conservator of a 19-year-old

daughter who has been diagnosed with autism, obsessive compulsive

disorder, an intellectual disability, and avoidant/restrictive food intake

disorder (“ARFID”), and who requires “around-the-clock care.” Decl.

of Amanda Johnson, Ex. 4 to Pls.’ Mot. [Dkt. # 9-5] (“Johnson Decl.”)

¶¶ 3–47. ARFID causes her daughter “to only be able to eat a few

‘safe’ foods,” all but two of which will be banned under the Tennessee

pilot project. Id. ¶¶ 10–15. If she cannot access her safe foods, she

will not be able to eat and will have to receive nutrition through a

feeding tube. Id. ¶ 9.

▪ Plaintiff Starks works part-time, attends school full-time, and is the

single-parent of a nine-year-old child. Decl. of Hunter Starks, Ex. 5 to

Pls.’ Mot. [Dkt. # 9-6] (“Starks Decl.”) ¶¶ 4–5. Between three eighthour shifts a week, childcare, school, and schoolwork, Starks drinks

soda in the afternoon for energy. Id. ¶¶ 9–13. The West Virginia pilot

project prohibits the purchase of soda, which has impacted Starks’

ability to focus on work and school. Id. ¶ 14.

Though defendants “acknowledge that an outright ‘depriv[ation] of SNAP benefits’

constitutes cognizable Article III injury,” they argue that plaintiffs do not suffer injury in fact

because, “regardless of [their] unique dietary needs . . . , the pilot programs do not prevent them

from purchasing those food items with other funds.” Defs.’ Cross-Mot. at 7–8; see id. at 8 (“The

pilot programs have changed neither the supply of the food items [p]laintiffs desire nor the

price.”).

But that reassurance misunderstands and mischaracterizes plaintiffs’ predicament.

Plaintiffs all live below the poverty line, see, e.g., Aragon Decl. ¶ 4 (earning $1,300 a month to

support her and her five-year-old son),4 and SNAP benefits made it possible for them to purchase

the foods and beverages that aided their health and wellness. But under the pilot projects, SNAP

no longer covers those items, slashing that portion of their benefits and raising the price of the

items from $0 to full cost. That not only injures plaintiffs by depriving them in part of a

4 HHS Poverty Guidelines for 2026, Off. of the Assistant Secretary for Planning and Evaluation, https://perma.cc/QKZ3-T8PB.

governmental benefit they previously enjoyed, but it affects their finances and health because

they must now take money out of already limited budgets to pay for the items, if they can at all.

See e.g., Fleming Decl. ¶ 15 (“Since the food restriction waiver went into effect . . . , I have been

taking money out of my gas budget to be able to buy the energy drinks I need.”); Johnson Decl.

¶¶ 17–19 (“I don’t know how I will manage to feed my daughter once the waiver goes into

effect. SNAP is the only money we have to buy groceries. We barely have enough money to pay

all of our essential expenses . . . . If I cannot use SNAP to buy my daughter’s food, I will have to

run up a credit card balance, sell some of my possession on eBay, or not to pay one of our

bills.”). That is a “concrete” injury that “actually exists” for each plaintiff and gives them a real,

and not hypothetical interest in the outcome of the case, which is not diminished by defendants’

blithe suggestion that plaintiffs are free to use “other funds” to purchase the items; plaintiffs are

SNAP recipients precisely because they do not have sufficient funds for food in the first place.5

5 In both oral argument and briefing, the government defendants have asserted, with respect to the plaintiffs with diabetic needs, that “there are plenty of fruits and other food options that can be purchased with benefits that can help boost blood sugar.” Defs.’ Cross-Mot. at 9, citing A.R. 113, 342; March 20 Hr’g Tr. [Dkt. # 23] at 12:15–17 (“There are things like bananas. I know people with Type 1 diabetes who eat bananas to keep their blood sugar up, and those are still eligible under SNAP.”). Maybe so. But there is nothing in the record to indicate how plentiful these substitutes may be in plaintiffs’ communities, or whether this armchair analysis is realistic given the comparative cost of fresh fruit against the snacks and drinks these plaintiffs rely upon. Furthermore, there is nothing in the record to support counsels’ analysis. There is indeed no indication in the administrative record that any state looked into the availability of substitutes for SNAP recipients with unique health needs. And the portions of the record that the federal defendants did cite do not address the availability of alternative products. See Defs.’ Cross-Mot. at 9, citing A.R. 113, 342. They cited: (1) a question from a draft “SNAP Waiver Client Individual Survey” asking whether the SNAP recipient purchased fruits and vegetables, A.R. 133; and (2) a page of a study explaining that it sought to simulate the effects of “how price affects consumption (price elasticities) and how reductions in purchasing power affect consumption (marginal propensity to consume) into a microsimulation computer model that simulates how changes in food consumption alter body mass index and risk of type 2 diabetes.” A.R. 342.

Relying heavily on Weissman v. National R.R. Passenger Corp., 21 F.4th 854, 858 (D.C.

Cir. 2021), defendants frame the injury as one of “consumer choice” and argue that the pilot

projects’ do not cause injury because they do not meaningfully abridge that choice with regards

to the restricted foods and beverages. Defs.’ Cross-Mot. at 8; Defs.’ Reply at 1–4.

But Weissman is not on point with this case. Weissman involved plaintiffs who sought to

prevent Amtrak from adding a mandatory arbitration term to its rail tickets, arguing that it

“deter[red] them from riding Amtrak.” 21 F.4th at 856. That is not at all akin to this case

involving restrictions on a government benefit program that provides monetary relief to enable

low-income individuals to buy food. And more importantly, the Court found that the Weissman

plaintiffs failed to establish standing because the change to the ticket was “an ancillary term,”

and they did “not demonstrate how any harm from the mere existence of this ancillary term”

caused them injury. Id. at 859–60. The change involved here is not “ancillary.” The pilot

projects remove categories of foods and beverages from the products that can be purchased with

SNAP benefits, and plaintiffs have explained how the restrictions have affected them personally.

Therefore, the Court finds that the injury requirement of standing has been satisfied, and

that it has subject matter jurisdiction to hear the case.

II. The Court will grant summary judgment in favor of plaintiffs on Count One

because defendants’ approval of the pilot projects exceeded their statutory

authority under 7 U.S.C. § 2026(b).

Section 706(2)(C) of the Administrative Procedure Act authorizes the court to “hold

unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction,

authority, or limitations.” 5 U.S.C. § 706(2)(C).

It is undisputed that the Secretary and the USDA approved each of the pilot projects in

this case pursuant to their authority under 7 U.S.C. § 2026(b). The project request template that

the agency sent to the states began with an explanation of section 2026(b), and it directed them to

review that portion of the statute, see, e.g., A.R. 3, and all of the letters approving the projects

invoked section 2026(b). See, e.g., A.R. 16 (“The Colorado SNAP Food Restriction Waiver

Demonstration Project . . . is approved in accordance with the requirements to operate

demonstration projects under Section 17 [7 U.S.C. 2026] (b)(1)(B)(i), and Section 17 [7 U.S.C.

2026] (b)(1)(B)(ii).”) (alteration in original).

Plaintiffs maintain that the approvals exceeded defendants’ authority under section

2026(b) because the pilot projects do not fall within the category of projects authorized by that

provision. Pls.’ Mot. at 16–19; Pls.’ Opp. at 6–11. This is because, according to plaintiffs, the

pilot projects do not serve to “increase the efficiency of [SNAP] or improve the delivery of

[SNAP],” they do not fall under any of the four “permissible purposes,” and they lack the

evaluation plan required under the section. Id. (alterations in original).

Whether an agency “has exceeded . . . its authority is a question of statutory

construction.” Helicopter Ass’n Int’l, Inc. v. Fed. Aviation Admin., 722 F.3d 430, 433 (D.C. Cir.

2013). An agency cannot “act with the force of law without delegated authority from Congress,”

N.Y. Stock Exch. LLC v. SEC, 962 F.3d 541, 554 (D.C. Cir. 2020), so “[t]he question . . . is not

what the [agency] thinks it should do but what Congress has said it can do.” Nat’l Petroleum

Refiners Ass’n v. FTC, 482 F.2d 672, 674 (D.C. Cir. 1973) (internal quotation marks and citation

omitted). “[A]gency interpretations of statutes” are no longer “entitled to deference,” Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 392 (2024), so courts apply the “traditional tools of

statutory interpretation – text, structure, purpose, and legislative history,” to determine statutory

meaning. Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 297 (D.C. Cir. 2003).

The court “begin[s] with the plain text,” Centro de Trabajadores Unidos v. Bessent,

167 F.4th 1218, 1234 (D.C. Cir. 2026), as the “preeminent canon of statutory interpretation” is

the assumption “that [the] legislature says in a statute what it means.” Janko v. Gates, 741 F.3d

136, 169–40 (D.C. Cir. 2014), quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183

(2004) (alteration in original).

Title 7, section 2026(b)(1), “Pilot projects,” begins:

(A) The Secretary may conduct on a trial basis, in one or more areas of

the United States, pilot or experimental projects designed to test program

changes that might increase the efficiency of the supplemental nutrition

assistance program and improve the delivery of supplemental nutrition

assistance program benefits to eligible households, and may waive any

requirement of this chapter to the extent necessary for the project to be

conducted.

7 U.S.C. § 2026(b)(1)(A).

Section 2026(b)(1)(B) is entitled “Project requirements,” and it states:

(i) Program goal

The Secretary may not conduct a project under subparagraph (A)

unless—

(I) the project is consistent with the goal of the supplemental

nutrition assistance program of providing food assistance to

raise levels of nutrition among low-income individuals; and

(II) the project includes an evaluation to determine the effects of the

project.

(ii) Permissible projects

The Secretary may conduct a project under subparagraph (A) to—

(I) improve program administration;

(II) increase the self-sufficiency of supplemental nutrition

assistance program recipients;

(III) test innovative welfare reform strategies; or

(IV) allow greater conformity with the rules of other programs than

would be allowed but for this paragraph.

Id. § 2026(b)(1)(B)(i)–(ii).

In sum, section 2026(b) authorizes the Secretary to conduct pilot projects that might

“increase the efficiency of the [SNAP] program and improve the delivery of [SNAP] benefits,”

as long as they are “consistent with” SNAP’s goal of “providing food assistance to raise levels of

nutrition among low-income individuals” and include the necessary evaluations, but the only

“permissible projects” under this provision are ones that “improve program administration,”

“increase the self-sufficiency of [SNAP] recipients,” “test innovative welfare reform strategies,”

or “allow greater conformity with the rules of other programs.” Id. § 2026(b). Improving the

health and diet of SNAP recipients is not included.

Defendants maintain, though, that the pilot projects “increase SNAP efficiency” because

they improve “recipients’ levels of nutrition for a constant level of benefits.” Defs.’ Reply at 1,

7–8; see id. at 8 (“[I]f USDA can achieve better health outcomes while awarding the same

benefit amount, that would be ‘efficient.’”). They contend that the projects “incentiviz[e]

healthier food purchases,” Defs.’ Cross-Mot. at 13–14, and reason that because such an incentive

is “synergetic” to the statute’s policy of “safeguard[ing] the health and well-being of the Nation’s

population by raising levels of nutrition among low-income households,” the projects serve to

“increase the efficiency of [SNAP].” Defs.’ Reply at 7–8, citing 7 U.S.C. § 2011.

But this is a non sequitur. Merely positing something does not make it so, and

defendants’ reading of the statute does not comport with the language of section 2026(b), the

structure of the statutory scheme, or the legislative history behind the section.

The text of section 2026(b)(1)(A) is the starting point of the analysis. It authorizes the

Secretary to conduct projects that might “increase the efficiency of the supplemental nutrition

assistance program and improve the delivery of supplemental nutrition assistance program

benefits to eligible households.” 7 U.S.C. § 2026(b)(1)(A). “Efficiency” is defined as “[t]he

quality or property of being efficient,” and “efficient” means “[a]cting or producing effectively

with a minimum of waste, expense, or unnecessary effort.” William Morris, Am. Heritage

Dictionary (1976).6 While that definition by itself does not illuminate the section’s meaning,

“efficiency” does not appear alone in that sentence. The statute says, “increase the efficiency of

the supplemental nutrition assistance program.” 7 U.S.C. § 2026(b)(1)(A). Not increase the

efficiency of the agency’s ability to achieve “the program’s goal” or the efficiency of “SNAP

benefits,” as the government submits. Defs.’ Reply at 8–10. It speaks to testing new means of

enhancing the efficiency of the SNAP program itself – administrative and programmatic ways to

make it run more smoothly, to deliver benefits at a lower cost, to reduce bureaucratic steps or

paperwork, etc.

The language of the rest of section 2026(b) comports with that reading. The sentence that

authorizes the Secretary to conduct pilot projects has two prongs: she may conduct projects to

test changes that “increase the efficiency” of SNAP or “improve the delivery” of SNAP benefits,

7 U.S.C. § 2026(b)(1)(A), the second of which is also a logistical, administrative goal. And the

list of “[p]ermissible projects” in section 2026(b)(1)(B)(ii) is limited to projects that “improve

program administration,” “self-sufficiency” of SNAP recipients, test innovative “welfare reform

6 When interpreting statutory language, the Court must read plain text “in accord with the ordinary public meaning of its terms at the time of its enactment.” Bostock v. Clayton Cnty., 590 U.S. 644, 654 (2020). The language at issue first appeared in the Food and Agricultural Act of 1977, Pub. L. No. 95-113, § 17(b)(1), 91 Stat. 913, 977, so the Court has used a dictionary from that period.

strategies,” or “allow greater conformity with the rules of other programs.” These purposes

speak to the bureaucratic nature of the projects, or the work requirements that were added to the

statutory scheme, as ones that affect the administrative elements of SNAP itself or other welfare

programs. Nowhere does this portion of the statute say anything about SNAP’s goals, good

nutrition, obesity, or morbidity.

Finally, in section 2026(b)(v), Congress listed projects it would be appropriate to

approve. It tells the Secretary that she may conduct:

projects involving the payment of the value of allotments or the average

value of allotments . . . by household size in the form of cash to eligible

households all of whose members are age sixty-five or over or any of

whose members are entitled to supplemental security income benefits

under . . . the Social Security Act or are receiving assistance under a State

program funded under . . . the Social Security Act . . . , the use of

identification mechanisms that do not invade a household’s privacy, and

the use of food checks or other voucher-type forms in place of EBT cards.

Id. § 2026(b)(1)(B)(v). All of these examples flow directly from the authority to approve pilot

projects set forth in section 2026(b)(1)(A), addressing how the benefits are administered and how

they interact with other social programs.

Defendants’ expansion of the term of “efficiency” beyond its commonly understood

meaning to include projects that “achieve better health outcomes,” Defs.’ Reply at 8, cannot be

squared with the rest of the statutory scheme either. First and foremost, Congress expressly gave

the Secretary the power to conduct “[p]ilot projects to evaluate health and nutrition promotion in

the [SNAP] program” in a completely different part of the statute – section 2026(k). That

section authorizes the Secretary to “carry out . . . pilot projects to develop and test methods”:

(A) of using the supplemental nutrition assistance program to improve the

dietary and health status of households eligible for or participating in the

supplemental nutrition assistance program; and

(B) to reduce overweight, obesity (including childhood obesity), and

associated co-morbidities in the United States.

7 U.S.C. § 2026(k).

That is exactly the stated purpose of the projects in this case. The newly appointed

Secretary’s letter called upon state and local governments to “propose bold ideas” and

specifically invited “much-needed reforms to nutrition assistance programs to

promote . . . healthy eating habits to ensure our citizens live longer, more abundant lives.”

A.R. 193–94. The USDA template that the agency circulated to facilitate the states’ proposals

stated that the projects were intended to “strengthen State strategies to encourage healthy

choices, healthy outcomes, and healthy families.” A.R. 3. And all of the planned project

evaluations and participant surveys were focused on what SNAP participants were eating and

buying.7 Although a few states paid lip service to the purpose of “efficiency,” see A.R. at 28

(“SNAP is inefficient at delivering on purpose of ‘promoting general welfare and safeguarding

health and well-being’ and ‘alleviating malnutrition’ because [it] does not regulate the types of

7 Plaintiffs also took issue with the substance, or lack of substance, in the evaluations and planning documents themselves, see, e.g., Pls.’ Mot. at 18–21, but the Court need not address those issues in light of its ruling on defendants’ lack of statutory authorization.

items that can be purchased with SNAP benefits.”), it is clear from each project request that the

states’ objective was to combat health, diet, and obesity-related issues.8

So why would defendants ignore the portion of section 2026 that gives them clear

statutory authority to conduct pilot projects to advance this objective? Because projects

approved under section 2026(k) are required to meet more stringent mandatory criteria. See

7 U.S.C. § 2026(k)(2)(c) (detailing the criteria the Secretary must evaluate to approve a project).

And more importantly, section 2026(k) does not authorize the Secretary to waive requirements of

the Food and Nutrition Act to conduct its type of projects, meaning that defendants would not be

authorized to waive the statutory definition of “food.” Subsection (k) expresses the

Congressional preference that the Secretary utilize other means to accomplish that goal, as it

specifically authorizes projects that:

program retailers to increase the availability of healthy foods to

participating households;

8 See A.R. 9 (“Supporting the health of Coloradans is of paramount importance. The proposed package of changes in this waiver request ensures that SNAP dollars are not being spent on sweetened beverages with no or negative nutritional value and that SNAP participants can instead spend those SNAP dollars on foods that provide meaningful nutritional support.”); A.R. 52 (“The Nebraska Healthy SNAP waiver to omit soda and energy drinks from the SNAPeligible purchase list is just one more step in the right direction toward making Nebraska healthy again. Through this restriction households are expected to use SNAP benefits to purchase healthier beverages to improve their overall health.”); A.R. 63 (“[Tennessee]’s goal is to promote healthier eating habits among participants, supporting improved health outcomes and reducing diet-related conditions by encouraging the use of SNAP benefits for more nutritious food options.”); A.R. 28 (“Iowa wishes to refocus the SNAP program on its designed intent, ‘to promote the general welfare and safeguard the health and wellbeing’ by encourage[ing] SNAP participants to purchase healthier food items . . . .”); A.R. 79 (explaining that West Virginia’s “long-term intended outcome is for SNAP households to transition to healthy drink options, and produce positive health impacts as a result”). The two amicus briefs submitted also highlight the pilot projects’ health, nutrition, and obesity related goals. See States’ Amicus Br. at 6 (“Amici States created the subject pilot projects for the very purpose of advancing SNAP’s goal—to raise the nutrition levels of low-income individuals by cutting out innutritious junk food.”); Foundation Amicus Br. at 8 (“Without the waivers, taxpayer dollars will continue to fund an obesity epidemic.”).

(D) subject authorized supplemental nutrition assistance program retailers

to stricter retailer requirements with respect to carrying and stocking

healthful foods; [or]

(E) provide incentives at the point of purchase to encourage households

participating in the supplemental nutrition assistance program to

purchase fruits, vegetables, or other healthful foods . . . .

7 U.S.C. § 2026(k)(3).

Congress defined what “food” is supposed to be, and it did not authorize the agency to

amend or waive the definition it enacted. It did not authorize the agency to cut types of food out

of SNAP entirely. It set out clearly the type of experimental projects that could be tested to

address the unquestionably serious health issues attributed to the rise of obesity in the population

in general and particularly the low-income population. But it did not invite the Secretary to

ignore its directives by trying to advance those ends under the banner of “efficiency” or

administrative improvements.

Defendants argue that section 2026(b) and section 2026(k) can be read together because

“[s]ection 2026(k) mandates the use of pilot projects that can support dietary health and

nutritional goals” in “specific circumstances,” and “[s]ection 2026(b) . . . is based on permissive

authority to conduct a much broader range of projects.” Defs.’ Suppl. Mem. at 1. According to

them, “[t]hat distinction evinces a clear congressional effort to more forcefully encourage certain

kinds of projects, such as those enumerated at [section] 2026(k)(3), while nevertheless permitting

the Secretary to pursue a broader range of projects at her discretion.” Id. at 5.

But that strained reading is unpersuasive and illogical, and it further highlights the flaws

in defendants’ reading of the statute. First, it would be absurd for Congress to tell the Secretary

that she “may” conduct health and nutrition related projects however she wants under section

2026(b), but that she “must” conduct the same types of projects with more stringent requirements

under section 2026(k). And even if Congress were attempting to “more forcefully encourage

certain kinds of projects,” why wouldn’t Congress add the “certain kinds of projects” to section

2026(b) itself? Section 2026(b) includes subsection suggesting “additional included projects”

the Secretary may conduct under that authority, see 7 U.S.C. § 2026(b)(1)(B)(v), but the types of

projects in section 2026(k) are not listed. In other words, if the Secretary needed no new

authority to approve section 2026(k) projects, why add a separate section at all?

Further, defendants’ interpretation of the relationship between sections 2026(b) and (k)

runs counter to “the old and familiar rule” of statutory construction that “the specific governs the

general.” Genus Med. Techs. LLC v. FDA, 994 F.3d 631, 638 (D.C. Cir. 2021), quoting RadLAX

Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645–46 (2012). As the Supreme

Court has explained:

The general/specific canon is perhaps most frequently applied to statutes

in which a general permission or prohibition is contradicted by a specific

prohibition or permission. To eliminate the contradiction, the specific

provision is construed as an exception to the general one. But the canon

has full application as well to statutes . . . in which a general authorization

and a more limited, specific authorization exist side-by-side. There the

canon avoids not contradiction but the superfluity of a specific provision

that is swallowed by the general one, violating the cardinal rule that, if

possible, effect shall be given to every clause and part of a statute. The

terms of the specific authorization must be complied with.

RadLAX Gateway Hotel, LLC, 566 U.S. at 645 (internal quotation marks, alterations, and

citations omitted).

“[T]he general-specific canon is particularly appropriate where . . . the provisions at issue

are ‘interrelated and closely positioned’ as ‘parts of the same statutory scheme,’” Genus Med.

Techs. LLC, 994 F.3d at 638, and where “Congress has enacted a comprehensive scheme and has

deliberately targeted specific problems with specific solutions.” Patten v. District of Columbia,

9 F.4th 921, 926 (D.C. Cir. 2021). So even if the Court were to read section 2026(b) as a broad

authorization and section 2026(k) as a specific one, it would still be subsection (k) that governs.

See D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 (1932) (“General language of a statutory

provision, although broad enough to include it, will not be held to apply to a matter specifically

dealt with in another part of the same enactment.”).

Finally, the legislative history supports the Court’s reading of section 2026(b) as

authorizing the Secretary to conduct projects related to administrative efficiency only, and

section 2026(k) as the only provision authorizing pilot projects related to health and nutrition.

Although the authorization for pilot projects in section 2026(b) did not exist in the original Food

Stamp Act, Congress added it into the statutory scheme through the Food and Agriculture Act of

1977, which read:

The Secretary is authorized to conduct on a trial basis, in one or more

areas of the United States, pilot or experimental projects designed to test

program changes that might increase the efficiency of the food stamp

program and improve the delivery of food stamp benefits to eligible

households, including projects involving the payment of the value of

allotments in the form of cash to eligible households all of whose

members are either age sixty-five or over or entitled to supplemental

security income benefits under title XVI of the Social Security Act, . . . the

use of countersigned food coupons or similar identification mechanisms

that do not invade a household’s privacy, and the use of food checks or

other voucher-type forms in place of food coupons. The Secretary may

waive the requirements of this Act to the degree necessary for such

projects to be conducted, except that no project shall be implemented

which would lower or further restrict the income or resource standards or

benefit levels provided pursuant to sections 5 and 8 of this Act.

Food and Agricultural Act of 1977, Pub. L. No. 95-113, § 17(b)(1), 91 Stat. 913, 977. Like the

current version of the statute, this provision used terms like “efficiency” and “delivery,”

juxtaposed with specific examples of administrative improvement, and it was devoid of any

mention of pilot projects aimed at nutrition or health.

The legislative history around this provision in the 1977 bill is not expansive, but it

confirms the limited nature of the power granted to the Secretary under section 2026(b). As a

report from the House of Representatives explained:

The Committee bill would authorize pilot or experimental projects in one

or more areas of the country, but on two conditions – first, that they only

test changes that improve benefit delivery to eligible households and

increase program efficiency, and second, that they not lower or restrict any

of the income or asset tests or the benefit levels . . . . These limitations

would protect the current program by making it exceedingly difficult to

displace law with discretion.

H.R. Rep. No. 95-464, at 363 (1977).

After the 1977 legislation, the next significant change to the text of section 2026(b) came

about in 1996 when Congress passed the Personal Responsibility and Work Opportunity

Reconciliation Act. That Act struck most of section 2026(b)(1)(A) to leave it looking much as it

does today:

The Secretary may conduct on a trial basis, in one or more areas of the

United States, pilot or experimental projects designed to test program

changes that might increase the efficiency of the food stamp program and

improve the delivery of food stamp benefits to eligible households, and

may waive any requirement of this chapter to the extent necessary for the

project to be conducted.

Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193,

§ 850, 110 Stat. 2105, 2336–37.

The legislative history surrounding this change largely parrots the statutory change with

little comment, but it does not in any way indicate a broadening of the authority Congress

previously invested in the Secretary:

The conference agreement adopts the House provision with an

amendment. The Secretary is permitted to conduct pilot and

demonstration projects and waive Food Stamp Act requirements to the

extent necessary, with certain limitations and conditions. Projects must be

consistent with the food stamp program goal of providing food assistance

to raise levels of nutrition among low-income individuals and must

include an evaluation. Permissible projects are those that will improve the

administration of the program, increase self-sufficiency of food stamp

participants, test innovative welfare reform strategies, or allow greater

conformity with the rules of other programs than is otherwise allowed

under the Food Stamp Act.

H.R. Rep. No. 104-725, at 479 (1996) (Conf. Rep.); see also H.R. Rep. No. 104-651, at 81

(1996). And although Congress noted the requirement that the projects must be “consistent

with” the goal of the then-food stamp program, this is also where it added in the four permissible

purposes under section 2026(b)(1)(B)(iii) – which cabined the Secretary’s authority to

“administration,” “self-sufficiency,” and “welfare reform strategies,” not the nutrition or health

of SNAP participants.

Finally, in 2008, section 2026(k) was added to the statute through the Food,

Conservation, and Energy Act:

Section 17 of the Food and Nutrition Act of 2008 (7 U.S.C. 2026) is

amended by adding at the end the following:

“(k) PILOT PROJECTS TO EVALUATE HEALTH AND NUTRITION

PROMOTION IN THE SUPPLEMENTAL NUTRITION ASSISTANCE

PROGRAM.—

“(1) IN GENERAL.—The Secretary shall carry out, under such terms and

conditions as the Secretary considers to be appropriate, pilot projects to

develop and test methods—

“(A) of using the supplemental nutrition assistance program to improve

the dietary and health status of households eligible for or participating in

the supplemental nutrition assistance program; and

“(B) to reduce overweight, obesity (including childhood obesity), and

associated co-morbidities in the United States.”

Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-234, § 4141, 122 Stat. 923, 1117.

Here, the legislative history is more abundant. As the conference report from the House

of Representative explained:

The House bill amends section 17 . . . by adding a new section that

authorizes the Secretary to establish a demonstration program, to be

known as the “Initiative to Address Obesity Among Low-Income

Americans,” to develop and implement strategies to reduce obesity among

low-income Americans.

***

The Senate amendment amends section 17 to require and fund pilot

projects to develop and test methods of using the Food and Nutrition

program to improve the dietary and health status of participants and to

reduce overweight, obesity, and associated co-morbidities. Among other

initiatives, projects may include . . . point-of-purchase incentives to

encourage program participants to buy fruits, vegetables, and other healthy

foods . . . .

H.R. Rep. No. 110-627, at 779 (2008) (Conf. Rep.). As Senator Harkin (Iowa-D) explained:

The bill also includes $20 million in the nutrition title for pilot projects to

test innovative ways of using the Supplemental Nutrition Assistance

Program to improve the diets and overall health of recipients and to

especially reduce the problems of obesity and the related bad health

outcomes. Particularly, this funding is provided for USDA to carry

out a pilot program that would test whether certain incentives can be

effective in helping food stamp households to purchase healthier

foods. The funding is intended to be used for a pilot program using the

existing EBT infrastructure. For example, a participating household that

purchases fruits and vegetables with their food stamp benefits would

receive a discount on the portion of their purchase that is deemed

healthful. Or alternatively, the household would have extra benefits added

onto its EBT card for the component of their grocery store purchases that

are healthful.

154 Cong. Rec. S4754 (daily ed. May 22, 2008) (statement of Sen. Tom Harkin) (emphasis

added).

Thus, the legislative history tells the same story as the plain text and the structure of the

statute: Congress gave the Secretary authority to approve pilot projects related to administrative

efficiency of the then-food stamp program, it cabined that authority to certain related purposes,

and then, when it wanted the Secretary to start addressing the “dietary and health status of

participants,” it “add[ed] a new section that authorize[d]” the Secretary to do so. H.R. Rep. No.

110-627, at 779. None of that indicates that the Secretary already had authority under section

2026(b) to carry out pilot projects that change the definition of “food” to “raise the nutrition

level” in the name of efficiency.

Under the appropriate reading of the statute, none of the state plans or USDA approvals

indicate that the pilot projects might “increase the efficiency” of the SNAP program within the

meaning of the statute. As plaintiffs’ point out, the projects actually add administrative

complexity, as both SNAP participants and retailers must deal with new rules affecting what can

and cannot be purchased. See Pls.’ Opp. at 9. Though some state restrictions are simpler to

understand, such as Colorado’s restriction on “soft drinks,” others are not. A.R. 17. Iowa’s

project restricts “all taxable food items as defined by the Iowa Department of Revenue,” which

includes several categories of food and beverage items that had to be laid out in a chart. A.R.

42–43.

Even the federal government had to issue further “Clarifications on Food Restriction

Waivers and Retailer Compliance.” It sent a memorandum out on December 30, 2025, one

business day before the first pilot projects in this case started on January 1, 2026, explaining that:

All walk-in SNAP retailer stores physically located within a State

implementing a SNAP Food Restriction Waiver must comply with the

State’s waiver for all SNAP transactions . . . . Certain other retailers are

also required to comply when fulfilling online orders from a warehouse

(fulfillment center), regardless of their location. When a SNAP participant

from an implementing State places an online order using SNAP benefits

and the retailer fulfills any part of the order from a warehouse, the retailer

must comply with the restrictions of that participant’s State . . . . This

applies to all transactions in which the order is fulfilled from a warehouse

not open to customers, whether shipped directly to the customer’s address

or to a designated pick-up location. Some retailers will therefore be

required to comply with multiple States’ waivers. Retailers fulfilling

orders from warehouses can use the State-issued SNAP EBT card’s Bank

Identification Number (BIN) to determine SNAP participants’ States.

A.R. 184. So while “Iowa, Nebraska, and Colorado each have an approved SNAP Food

Restriction Waiver,” the warehouse fulfilling the online order must “must comply with: Iowa’s

waiver for purchases made with an Iowa EBT card; Nebraska’s waiver for purchases made with

a Nebraska EBT card; and Colorado’s waiver for purchases made with a Colorado EBT card.”

A.R. 184. That scheme certainly does not reflect programmatic efficiency.

Because the pilot projects in this case did not satisfy the requirements of section 2026(b),

the Secretary and the USDA exceeded their authority under that section of the statute in

approving them. Therefore, the Court will set the approvals aside under section 706(2)(C) of the

APA, and the agency will have to go back to the drawing board to design pilot projects that

accord with the statute.9

III. The Court will grant summary judgment in favor of plaintiffs on Count Three

because defendants failed to meet the requirements of 7 C.F.R. § 282.1(b) before

the initiation of the pilot projects in Iowa, Nebraska, West Virginia, and

Colorado.

Section 706(2)(D) of the APA authorizes the court to set aside agency action taken

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

“It is ‘axiomatic,’ . . . ‘that an agency is bound by its own regulations.’” Nat’l Env’t Dev.

Assoc.’s Clean Air Project v. EPA, 752 F.3d 999, 1009 (D.C. Cir. 2014), quoting Panhandle E.

Pipe Line Co. v. FERC, 613 F.2d 1120, 1135 (D.C. Cir. 1979). Under USDA regulation

7 C.F.R. § 282.1(b):

At least 30 days prior to the initiation of a demonstration project, [the

USDA] shall publish a General Notice in the Federal Register if the

demonstration project will likely have a significant impact on the public.

The notice shall set forth the specific operational procedures and shall

explain the basis and purpose of the demonstration project. If significant

comments are received in response to this General Notice, the Department

will take such action as may be appropriate prior to implementing the

project. If the operational procedures contained in the General Notice

9 The Court notes that Congress appeared to contemplate that this would be accomplished through incentives, and there appears to be no statutory authorization for blanket restrictions with no exceptions for individual circumstances on any categories of food not already carved out of the statutory definition of “food.”

described above are significantly changed because of comments, an

amended General Notice will be published in the Federal Register at least

30 days prior to the initiation of the demonstration project, except where

good cause exists supporting a shorter effective date. The explanation for

the determination of good cause will be published with the amended

General Notice. The amended General Notice will also explain the basis

and purpose of the change.

Iowa, Nebraska, and West Virginia launched their pilot projects on January 1, 2026, and

Colorado started on April 30, 2026. See A.R. 23, 40, 57, 94. So, under section 282.1(b), the

USDA was required to post notices in the Federal Register setting out the “specific operational

procedures,” as well as the bases and purposes of the projects, by December 1, 2025 for Iowa,

Nebraska, and West Virginia, and April 1, 2026 for Colorado.

It is undisputed that defendants did not post any notice in the Federal Register of the pilot

projects. They maintain that they were not required to satisfy section 282.1(b) because they

“reasonably concluded” that projects were not likely to have a “significant impact on the public.”

Defs.’ Cross-Mot. at 20–21. They cite their own explanation in a December 30, 2025

memorandum titled “Food Restriction Waivers and General Notice Rule” as support for this

conclusion:

To date, [the agency] has approved 18 State agencies to implement SNAP

demonstration waiver projects that temporarily waive the definition of

SNAP eligible foods, referred to as SNAP Food Restriction Waivers.

[The agency] has approved these 18 State agencies to restrict the food

items that SNAP households can purchase using SNAP benefits. Each

State agency’s waiver is unique, but generally restricts non-nutritious,

accessory food items such as sweetened beverages, candies, and prepared

desserts.

***

SNAP has determined that the General Notice Rule of 7 CFR 282.1(b) is

not applicable to the Food Restriction Waivers. Food Restriction Waivers

will limit the accessory food items that SNAP households residing in

implementing States can purchase with SNAP, but they will not change

SNAP eligibility criteria, allotment levels or access to staple foods.

Moreover, SNAP benefits are supplemental, calculated to cover only 70

percent of the household’s monthly food budget. SNAP households will

remain free to use cash to purchase SNAP restricted items.

A.R. 190 (“December 30 memorandum”). And they argue that because this conclusion is

entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997), no notice was required for the

projects. Defs.’ Cross-Mot. 21–22.

As defendants point out, Auer called for deference to an agency’s interpretation of its

own regulations. Defs.’ Cross-Mot. at 21; Auer, 519 U.S. at 459–63. In Auer, the Court dealt

with whether the Secretary of Labor “reasonably interpreted” its “salary basis-test” to deny the

plaintiffs an employment status that would entitle them to overtime pay. Id. at 454–55, 459–63.

The Court held that “[b]ecause the salary-basis test is a creature of the Secretary’s own

regulations, his interpretation of it is . . . controlling unless ‘plainly erroneous or inconsistent

with the regulation.’” Id. at 461. The Secretary “easily met” that “deferential standard,” id. at

462, and courts have continued to refer to the practice of deferring to an agency’s reasonable

reading of an ambiguous regulation as “Auer deference.” Kisor v. Wilkie, 588 U.S. 558, 563

(2019), citing Auer, 519 U.S. at 452.

But when the Supreme Court addressed the question of whether it should overrule Auer

in its more recent decision in Kisor v. Wilkie, 588 U.S. 558 (2019), it thoroughly explained and

cabined the application of Auer deference. Id. at 563. Kisor made clear that “Auer deference is

not the answer to every question of interpreting an agency’s rules,” and it laid out a three-part

analysis for determining whether the deference should be applied. Id. at 573–81.

“First and foremost,” the court must determine whether the regulation at issue is

“genuinely ambiguous” because “the possibility of deference can arise only if a regulation is

genuinely ambiguous.” Id. at 573, 574–75. “If uncertainty does not exist, there is no plausible

reason for deference. The regulation then just means what it means – and the court must give it

effect, as the court would any law.” Id. at 574–75; see id. at 575 (“[I]f there is only one

reasonable construction of a regulation – then a court has no business deferring to any other

reading, no matter how much the agency insists it would make more sense.”). “[A] court must

exhaust all traditional tools of construction” to determine whether a regulation is genuinely

ambiguous, “carefully consider[ing]” its “text, structure, history, and purpose.” Id. at 575

(internal quotation marks and alteration omitted). Kisor opined that “[d]oing so will resolve

many seeming ambiguities out of the box, without resort to Auer deference.” Id.

Second, even if there is genuine ambiguity to the regulatory language, “the agency’s

reading must still be reasonable.” Id. (internal quotation marks omitted). As Kisor pointed out,

Some courts have thought . . . that at this stage of the analysis, agency

constructions of rules receive greater deference than agency constructions

of statutes. . . . But that is not so. . . . [T]he agency’s reading must fall

“within the bounds of reasonable interpretation.” . . . And let there be no

mistake: That is a requirement an agency can fail.

Id. at 576, quoting Arlington v. FCC, 569 U.S. 290, 296 (2013).

Finally, Kisor explained that “not every reasonable agency reading of a genuinely

ambiguous rule should receive Auer deference,” and it directed courts to consider three

“especially important markers for identifying when Auer deference . . . is not appropriate.” Id.

First, “[t]he regulatory interpretation must be one actually made by the agency. In other words,

it must be the agency’s ‘authoritative’ or ‘official position,’ rather than any more ad hoc

statement not reflecting the agency’s views.” Id. at 577. “Next, the agency’s interpretation must

in some way implicate its substantive expertise.” Id. “Finally, an agency’s reading . . . must

reflect ‘fair and considered judgment’ to receive Auer deference.” Id. at 579. “That

means . . . that a court should decline to defer to a merely ‘convenient litigating position’ or ‘post

hoc rationalizatio[n] advanced’ to ‘defend past agency action against attack.’” Id.

In light of that guidance, the Court finds that defendants’ assertion that section 282.1(b) is

inapplicable to the approval of the pilot projects is not entitled Auer deference.10

What begins and ends the inquiry is the plain language of section 282.1(b), since it is not

“genuinely ambiguous.” The section states that the USDA must post notice of the project to the

Federal Register if it “will likely have a significant impact on the public.” 7 C.F.R. § 282.1(b).

None of those words are defined by the regulation or the Food and Nutrition Act, so the Court

looks to the plain meaning of the text. See Norfolk S. Ry. Co. v. Surface Transp. Bd., 72 F.4th

297, 306–07 (D.C. Cir. 2023) (“Text comes first.”). “Significant” means “[h]aving or expressing

a meaning,” “meaningful,” or “[i]mportant; notable; valuable.” William Morris, Am. Heritage

Dictionary (1976). “Impact” is “[t]he effect of one thing upon another.” Id. And “public” is

“[t]he community or the people as a whole.” Id. As anyone reading the regulation would

understand, the USDA is required to post notice of a proposed project in the Federal Register

when it is likely to have meaningful effect on the people or community within its reach.

Defendants do not argue that “significant impact on the public” should be read

differently, or in any particular way. They simply offer their assessment that the projects would

10 Plaintiffs raised the question of whether Auer deference survives the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which overruled the previous deference afforded to an agency’s interpretation of ambiguous statutory language under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Pls.’ Opp. at 28 n.6. But the Court agrees with the others in this district that have held that Auer deference “survives Loper Bright . . . , since it concerns an agency’s interpretation of its own regulations rather than that of a statute.” Campaign Legal Ctr. v. Fed. Elec. Comm’n, Civ. Action No. 24-2585, 2025 WL 1768099, at *7 (D.D.C. June 26, 2025); see, e.g., Battineni v. Mayorkas, 752 F. Supp. 3d 195, 207 n.3 (D.D.C. 2024) (“The Supreme Court’s recent decision in Loper Bright . . . does not affect [Auer’s] deferential standard. Loper Bright presented an issue of an agency’s interpretation of a statute, not of its own regulations.”). It also notes that the D.C. Circuit recently applied the Kisor analysis to an agency’s regulatory interpretation in a case that post-dates Loper Bright. See Alon Refining Krotz Springs, Inc. v. EPA, 172 F.4th 12, 17–20 (D.C. Cir. 2026) (deciding whether the EPA’s interpretation of a regulation regarding “small refineries” was entitled to deference).

not give rise to a “significant impact” because they would “not change SNAP eligibility criteria,

allotment levels[,] or access to staple foods.’” Defs.’ Cross-Mot. at 20–21, citing 7 U.S.C.

§§ 2011–2017.

The problem with that conclusion is that the USDA focused its analysis, which was

limited in the first place, almost exclusively on the impact the projects would have on the SNAP

program. But the plain language of the regulation does not direct the agency to consider impact

on the program; it directs the agency to consider whether the project will have a significant

impact on the public. And though the agency framed its conclusion around what the projects did

not do, i.e., effect eligibility, total benefit calculation, or the ability to buy “nutritious food,”

when one looks at what the projects sought to accomplish, there is no doubt that they were likely

to have a significant impact on the public. Indeed, that is the whole point of the pilots.

The likelihood is confirmed by the documentation in the administrative record related to

the purpose of the projects, their scope, and the activities necessary to implement them. First, the

press releases in the record and the project requests themselves reflect the significance of the

problem the USDA and the states sought to tackle. On April 8, 2025, a month into her tenure as

Secretary, Rollins and Secretary of Health and Human Services Robert F. Kennedy Jr. detailed

the problem the administration was taking on in a co-authored opinion piece. A.R. 254. The

article explained that the obesity and chronic illness rate among school-aged children and

adolescents constituted a “health crisis threatening to upend the lives of American families for

generations.” A.R. 255. To combat this “crisis,” the Secretaries “call[ed] on all governors to

submit waivers to help promote access to . . . critical sources of nutrition, including waivers that

can limit what can be purchased with food stamps.” A.R. 258.

Secretary Rollins published another article on December 15, 2025, right in the middle of

the notice period required by section 282.1(b) for the projects in Iowa, Nebraska, and West

Virginia, stating:

The chronic disease epidemic does not respect partisan boundaries, and

never before has it presented such an enormous threat to our national

welfare.

The urgency of the crisis is abundantly clear. Just consider what America’s

youth are up against.

According to the Centers for Disease Control and Prevention, over 40

percent of the roughly 73 million children (aged 0–17) in the United States

have at least one chronic health condition, and over 350,000 American

children have been diagnosed with diabetes.

These troubling statistics represent a threat not just to those personally

suffering from the health crisis but to U.S. national security. More than 75

percent of American youth (aged 17–24) are ineligible for military service –

primarily due to obesity, poor physical fitness and/or mental health

challenges.

Rising rates of childhood chronic disease are likely being driven by a

combination of factors. However, according to the Department of

Agriculture’s most recent data, 15.6 million children are recipients of the

SNAP program – accounting for about 39 percent of all SNAP participants

– so improving this program is a terrific place to start.

For too long, sugary drinks were the No. 1 item purchased with SNAP

benefits. Not vegetables, not fruit, but soda. The Trump administration is

partnering with governors from across the country to remedy that and

improve health outcomes.

A.R. 283–84. Because of this state of affairs, “the Department of Agriculture [was] empowering

states with unprecedented flexibility to manage their nutrition programs.” A.R. 283.

The pilot project requests sent in response to the Secretary’s call further reflect the

significant nature of the issue. Nebraska stated that it was “experiencing a health epidemic

further induced by diet-related chronic disease,” and that “[n]otably, the diet quality of SNAP

families has worsened over the past decade regardless of incentive programs and nutrition

education.” A.R. 51–52. West Virginia also stated that it was “experiencing a health epidemic

of obesity and other chronic diseases such as type 2 diabetes and heart disease resulting from

consumption of foods with high sugar content,” and that “[a]llowing SNAP benefits to be used

for the purchase of nutritionally void, sugar-sweetened beverages may be contributing to these

preventable health conditions and their associated costs.” A.R. 80–81.

Iowa’s request similarly expressed that

[S]ugar-sweetened beverages are the leading source of added sugar in the

American diet and provide little to no nutritional value. These beverages

are associated with weight gain, obesity, type 2 diabetes, heart disease,

kidney diseases, non-alcoholic liver disease, tooth decay and cavities, and

gout.

Iowa wishes to refocus the SNAP program on its designed intent, “to

promote the general welfare and safeguard the health and wellbeing” by

encourage[ing] SNAP participants to purchase healthier food items . . . .

A.R. 28. And Colorado’s request stated:

Supporting the health of Coloradans is of paramount importance. The

proposed package of changes in this waiver request ensures that SNAP

dollars are not being spent on sweetened beverages with no or negative

nutritional value and that SNAP participants can instead spend those

SNAP dollars on foods that provide meaningful nutritional support. This

expands not only the positive nutritional and health impact of SNAP

benefit spending but also enhances the impact of the purchasing power of

a household’s SNAP benefits.

A.R. 9–10. So it was clear that both the federal government and the states viewed the issue the

pilot projects would tackle as immense, impending, and important.

The second indication in the record that the projects were likely to significantly impact

the public was their scope. To tackle the widespread problem of obesity and diet-related chronic

disease, the states did not mince words. As West Virginia put it:

As of March 2025, West Virginia had a statewide SNAP caseload of

146,488 households and 273,981 individual recipients. 100% of WV’s

SNAP caseload will be affected by this waiver. The waiver will span

the entire population as well as including both metropolitan and rural areas

for all ages.

***

This waiver will impact all SNAP retailers (2,118) in West Virginia.

All retailers must comply within 12 months of the waiver implementation

date, or they will not be eligible to be SNAP retailers.

A.R. 81–82 (emphasis added).

And the USDA echoed the broad reach of the program when it approved it:

Eligibility: This Project will apply to the entire West Virginia SNAP

population (100 percent of the SNAP caseload).

Opt-Out: No SNAP household in West Virginia may opt out of the SNAP

eligible food restrictions project. The purpose of the Project is to evaluate

the impact of excluding soda from eligible purchases under SNAP on

participant’s consumption of these products and enhance the nutrition, and

therefore the health, of low-income families.

A.R. 93–94. Defendants approved each pilot project under the same terms: total coverage of

SNAP recipients and retailers in the state with no opt-outs for any reason. A.R. 16, 41–42, 56,

70.

One simply cannot argue that a program designed to affect all of the 273,981 SNAP

recipients in just one state does not have a significant impact on the public. And West Virginia

is a small state.

The other aspects of the projects that reflect their anticipated impact on the public are the

intensive public education effort that preceded them and the evaluation effort to follow them.

Although some of the project requests were more robust than others, all included plans for

communicating the restrictions to retailers and participants, as well as plans for compliance.

West Virginia, for example, planned to require all SNAP retailers “to implement point-ofsale . . . system changes” that would “adjudicate[] items on a per-transaction basis, authorizing or

denying each item based on a restricted product list defined by the State.” A.R. 82. It also

included a multi-step communication plan to retailers and participants. A.R. 84. And because it

“fores[aw] increases in call volume, constituent services inquiries, media inquiries, and

additional social media information,” it “committed to helping SNAP households over the hurdle

of this new waiver” by utilizing educational resources. A.R. 83.

The USDA’s approval letters called for even more preparation, requiring each state to

provide “finalized . . . plan[s] detailing task and timelines” for: “engaging with and notifying

SNAP-authorized retailers,” “compliance and monitoring” for SNAP retailers, and “notifying

and educating SNAP households.” A.R. 18–20, 35–36, 57–58, 72–73, 95–96. To this, Nebraska

submitted a detailed, eight-month plan for communicating the project to SNAP participants,

beginning with initial press releases in May 2025 and ending with a text message campaign,

individual letters, and in-person meetings with community agencies in December 2025.

A.R. 123–25. It did the same for its plan to communicate the project to retailers, its plan to

monitor those retailers, and its plan to evaluate the project’s impact. A.R. 126–58. Again, each

state’s responses varied in detail, but they all engaged in the preparation and planning activities it

would take to warn SNAP retailers and participants about the changes they were about to make.

Again, they would not have to do any of this if they were implementing something that was not

expected to have a significant effect on the public.

The focus of the states’ evaluation plans was particularly indicative on how the projects

were going to impact the public. Iowa’s proposed study would “survey and analyze participant

shopping and eating patterns at pre, mid, and post checkpoints.” A.R. 28. Colorado planned “to

analyze participant food purchasing and consumption behaviors” before and after the

implementation of the project. A.R. 10. West Virginia planned to look at “data on soda

consumption trends before and after the restriction waiver,” and it sought to “monitor trends in

the diagnosis and treatment of conditions closely associated with high consumption of sugarsweetened beverages.” A.R. 86. Nebraska planned for “to evaluate [SNAP participant]

spending habits prior to the waiver implementation and in each quarter following.” A.R. 53.

And Tennessee planned to assess the “impact on program access” for customers and retailers,

including “changes to the number and locations of approved retailers over time, and the State’s

customer experience survey [to] include questions that measure customer satisfaction.” A.R. 67.

The USDA singled out evaluation as well. See, e.g. A.R. 15 (“Due to the novel design of

the Project, FNS is committed to carefully and comprehensively evaluating how waiving the

State’s definition of food in this way impacts SNAP participants and retailers.”). The agency’s

approval letters specifically directed:

SNAP participants’ surveys, at a minimum, will collect the following

information:

▪ Meals and foods eaten outside the home or with foods not purchased at

SNAP-authorized retailers.

▪ Purchase and/or consumption of less healthy or “unhealthy” food

items not restricted by the Project.

▪ Non-SNAP dollars spent to purchase food items restricted by the

Project.

▪ SNAP client’s ability and confidence in correctly identifying food

items that can or cannot be purchased with SNAP benefits during the

Project.

▪ The point in time in which the SNAP client became aware of the

Project and how (State SNAP webpage, retail store signage, State

press release, etc.).

▪ Any impacts the Project potentially had on participants shopping

routines (such as distance traveled to store, increase spending of nonSNAP dollars, more frequent shopping trips, etc.).

A.R. 20, 37, 59, 73–74, 96–97. They also required the states to produce quarterly reports on the

“[m]onthly total number” of “compliments and complaints received” from SNAP retailers,

participants, and the “advocacy, community, or retailer association groups,” along with a

“qualitative summary” of the feedback. A.R. 20, 37, 59, 73–74, 96–97.

While plaintiffs have voiced a number of concerns about flaws or vagueness in the states’

evaluative criteria, they do reveal one thing for sure: the defendants and the states expected that

the pilot programs would have a significant impact on the public. All the types of impact they

sought to measure – “food purchasing and consumption behaviors,” participant “spending

habits,” participant “health outcomes” including “the diagnosis and treatment” of certain

conditions, access to the SNAP program itself – would all be significant changes to the public’s

behavior.

The agency’s conclusion that there was no “significant impact” because the projects did

not change key statutory criteria concerning eligibility or the ability to buy “staple foods,” Defs.’

Reply at 22, was beside the point. But even under its own standard, what the pilot projects

accomplish is a significant change to the Food and Nutrition Act’s statutory scheme. The

projects require the federal defendants to waive the statutory definition of “food,” which

determines exactly what participants can and cannot buy with benefits. To use the Secretary’s

and the USDA’s words, those waivers involve “unprecedented flexibility,” and the projects are

“novel” and “historic action[s].” A.R. 15, 283; see, e.g., A.R. 267 (article published by the

USDA titled, “Secretary Rollins Approves First Ever State Waiver to Restrict Soda and Energy

Drinks from Food Stamps in Nebraska,” calling the state’s pilot project a “historic action”).

Moreover, defendants’ justification that SNAP benefits are supplemental and “calculated

to cover only 70 percent of the household’s monthly food budget,” see Defs.’ Cross-Mot. at 16;

Defs.’ Reply at 16, does not cut against the significant impact the projects would likely have on

the public. For one thing, neither the December 30 memorandum, nor government counsel could

tell the Court where the seventy percent determination came from. A.R. 190; May 1 Tr. at

38:19–23 (The Court: “You say it’s only supposed to cover seventy percent, and I want to know

where it came from.” Government counsel: “So I don’t have a, sort of, behind-the curtain

answer for Your Honor any more than what’s already in the record.”). From what the Court can

tell, the seventy percent comes from section 2017(a) of the Food and Nutrition Act, which states

that

[t]he value of the allotment which State agencies shall be authorized to

issue to any households certified as eligible to participate in [SNAP] shall

be equal to the cost to such households of the thrifty food plan reduced by

an amount equal to 30 per centum of the household’s income.

7 U.S.C. § 2017(a). But just because the statute calculates SNAP benefits at a certain level of a

household’s income does not mean that the public would not be impacted by the pilot project

restrictions in reality. As government counsel rightfully conceded, “some of our – the country’s

neediest citizens do rely exclusively on SNAP.” May 1 Tr. 38:12–13. For those individuals,

adding more items to the list of foods that cannot be purchased with SNAP benefits does not

mean that the cost will shift to their own income – they will not be purchased at all. That is still

significant, and it was, in fact, the goal of the projects.11

11 In their reply brief, defendants assert, for the first time, that the agency’s decision not to publish notice “accords with historical practice by the agency.” Defs.’ Reply at 22. In support, they included the declaration of a “FNS-SNAP Retailer Policy Division Director,” who stated: (cont.)

When “the agency’s interpretation ‘would contravene the plain text of its own

regulation[],’” the Court must “reject it.” Norfolk S. Ry. Co., 72 F.4th at 307, quoting Hispanic

Affs. Project v. Acosta, 901 F.3d 378, 387 (D.C. Cir. 2018). It will do so here. The agency’s

decision to circumvent the notice requirement in section 282.1(b) contravenes the plain text of

that regulation because the projects were likely to significantly impact the public. Therefore, the

Court owes defendants’ interpretation no deference, and it finds that they violated the regulation

by failing to post notice thirty days before the initiation of the projects in Iowa, Nebraska, West

Virginia, and Colorado.12

I contributed to the review and processing of other waivers for State

agencies such as Colorado and Iowa’s Standard Medical Deduction

demonstration projects implemented in 2017 and 2020, Colorado’s Job

Retention Services Extension demonstration project in 2024, and

Tennessee’s Elderly Simplified Application Project in 2025. These

demonstration projects impacted a large portion of SNAP recipients in

those States and notice was not published in the Federal Register with

respect to these waivers.

Decl. of Casey McConnell, Ex. 1 to Defs.’ Reply [Dkt. # 28-1] ¶ 9. There are two problems with this explanation. For one thing, the explanation appears nowhere in the December 30 memorandum, or anywhere else in the administrative record, and “courts may not accept . . . counsel’s post hoc rationalizations for agency action.” State Farm, 463 U.S. at 50. Further, it could equally be true that the agency erred in failing to post notice in the declarant’s list of example projects. The Court could not even begin to opine on that, though, because defendants include no explanation of what those projects entailed or how they are similar to the projects in this case.

12 Even if the agency’s interpretation of section 282.1(b) survived the genuine ambiguity and reasonableness steps of the Kisor analysis, the Court would still find that Auer deference did not apply to the USDA’s determination. The last step of Kisor says that Auer deference is not appropriate where the agency interpretation does not “in some way implicate [the agency’s] substantive expertise,” and where it does not “reflect ‘fair and considered judgment.’” Kisor, 588 U.S. at 577, 579. It is not at all clear that the USDA used its “substantive expertise” in the December 30 memorandum, beyond just reading the Food and Nutrition Act. And notably, defendants’ decision to decline posting notice was made on December 30, 2025, well after the date section 282.1(b) required them to post notice of the projects in Iowa, Nebraska and West Virginia, which was December 1, 2025. This is exactly the sort of “post hoc rationalization to . . . defend past agency action[]” that Kisor warned courts to reject. 588 U.S. at 579 (internal quotation marks and citations omitted).

Defendants in the alternative argue that “if the Court determines that USDA was required

to publish the waiver approvals in the Federal Register, it should conclude that the failure to do

so constitutes harmless error,” and therefore, no vacatur is necessary. Defs.’ Cross-Mot. at 22–

23; Defs.’ Reply at 23. Even when the court finds that an agency action is unlawful, section 706

of the APA requires it to take “due account . . . of the rule of prejudicial error.” 5 U.S.C. § 706.

“The most natural interpretation of” that language is that “reviewing courts should adapt the ‘rule

of prejudicial error’ applicable in ordinary civil litigation (also known as the harmless-error

rule).” FDA v. Wages & White Lion Invs., L.L.C., 604 U.S. 542, 588 (2025).

“Error is harmless when [it] . . . is one that clearly had no bearing on the procedure used

or the substance of decision reached.” Ctr. for Biological Diversity v. U.S. Int’l Dev. Fin. Corp.,

77 F.4th 679, 690 (D.C. Cir. 2023) (internal quotation marks and citation omitted). In the

context of the APA’s statutory notice and comment requirement, the D.C. Circuit has explained

that, “[g]enerally, we have not been hospitable to claims of harmless error in cases in which the

government violated [section] 553 of the APA by failing to provide notice.” Id., quoting Allina

Health Servs. v. Sebelius, 746 F.3d 1102, 1109 (D.C. Cir. 2014) (alterations and internal

quotation marks omitted). “But error can be harmless if notice-and-comment would not alter the

legal conclusion of the rule.” Id., citing Ass’n of Am. Physicians & Surgeons v. Sebelius, 746

F.3d 468, 471–72 (D.C. Cir. 2014). “Ultimately, it is the plaintiff’s responsibility to show that

an error is harmful.” Id.

That burden is easily met in this case. At bottom, defendants’ error was one that “clearly

had . . . bearing on the procedure” they used because the error is that they skipped the procedure

entirely. Plaintiffs allege that if they were given proper notice, they “would have commented on

the impact the waivers have had, or will have, on them,” including their specific health and

financial issues. Pls.’ Opp. at 32, citing Johnson Decl. ¶ 21; Starks Decl. ¶¶ 18–19; Craig Decl. ¶

36; Aragon Decl. ¶ 14; Fleming Decl. ¶ 18; Hoffer Decl. ¶ 16. And it is not as if the federal

defendants considered those issues elsewhere in the record; there is not a single document

showing that they considered the unintended negative consequences the projects could have on

SNAP participants, or the need for a medical opt-out, at all.

Defendants offer three reasons as to why their failure to post notice was harmless, but

none are persuasive. First, they attempt to distinguish the case from those involving the APA’s

statutory notice and comment requirement, as “[h]ere it is not even the APA’s notice requirement

that applies, which is statutory, but USDA’s own regulation.” Defs.’ Cross-Mot. at 22. But it

does not matter whether a statute or a regulation requires notice – they are both sources of law

that the agency must follow, whether it wants to or not. Nat’l Env’t Dev. Assoc.’s Clean Air

Project, 752 F.3d at 1009 (“It is ‘axiomatic,’ . . . ‘that an agency is bound by its own

regulations.’”).

Second, defendants argue that because the regulation “is not a notice-and-comment

requirement, but merely a notice requirement, . . . [p]laintiffs cannot allege harm from their

inability to comment . . . as they never had any right to comment.” Defs.’ Cross-Mot. at 22. But

this ignores the fact that the applicable notice requirement is followed by several more sentences:

If significant comments are received in response to this General Notice,

the Department will take such action as may be appropriate prior to

implementing the project. If the operational procedures contained in the

General Notice described above are significantly changed because of

comments, an amended General Notice will be published in the Federal

project, except where good cause exists supporting a shorter effective date.

The explanation for the determination of good cause will be published

with the amended General Notice. The amended General Notice will also

explain the basis and purpose of the change.

7 C.F.R. § 282.1(b) (emphasis added). It should go without saying, but defendants are obligated

to follow the mandatory obligations of section 282.1(b), which are not only notice-related but

require additional procedures should the agency receive significant comments.

Finally, defendants contend that their error was harmless because “the projects were

being widely publicized elsewhere.” Defs.’ Reply at 23. Defendants have dedicated a portion of

the record to the “press releases” it published announcing the Secretary’s approval of the pilot

projects. See A.R. 267–87. But the language of section 282.1(b) calls for more than selfcongratulatory press releases. It requires the USDA to publish notice “in the Federal Register,”

and that “[t]he notice shall set forth the specific operational procedures and shall explain the

basis and purpose of the demonstration project.” 7 C.F.R. § 282.1(b). The press releases do not

come close to meeting that requirement, and still, the agency would have to satisfy the rest of the

criteria of the regulation stated above. For all of these reasons, the Court finds that the federal

defendants’ error was not harmless.

IV. The Court will not decide whether the approval of the pilot projects was

arbitrary and capricious because defendants did not have authority to approve

them in the first place.

Count Two of the complaint claims that defendants acted arbitrarily and capriciously in

approving the pilot projects under section 2026(b) because they did not meet the standards set by

section 2026(b)(1)(A) or (B), and because they: “relied on factors which Congress did not intend

them to consider, entirely failed to consider factors Congress required them to consider, offered

an explanation for the decision that runs counter to the evidence, and failed to acknowledge or

explain changes in agency position.” Compl. ¶¶ 197. For example, plaintiffs object to the

absence of an exception based on medical necessity, and they argue that approving the waiver of

the statutory definition was arbitrary and capricious since the agency took the opposite position

in 2018. Pls.’ Mot. at 29; Pls.’ Opp. at 17. Because the Court has already found that defendants

acted in excess of their statutory authority under section 2026(b), it need not decide whether their

decisions were arbitrary and capricious under that statute – it was unlawful for them to apply

subsection (b) in the first place, and the approvals will be vacated. If the agency decides to

address medical concerns related to obesity in SNAP households through appropriate and

statutorily authorized pilot programs, its action will be based on an administrative record that

does not exist yet. And if access to any category of food is denied, it would be prudent to

consider whether individual medical circumstances should be taken into account.

V. The remedy is vacatur.

The Administrative Procedure Act is clear that the “[t]he reviewing court shall . . . hold

unlawful and set aside action . . . found to be . . . in excess of statutory jurisdiction . . . [or]

without observance of a procedure required by law,” 5 U.S.C. § 706(2), which typically occurs

through a vacatur of the unlawful action and remand to the agency. But here, defendants argue

that vacatur of the approvals is not necessary because “it is highly likely that the agency could

substantiate its decision on remand,” and vacatur would have “disruptive consequences” on the

states that have already started the pilot projects. Defs.’ Cross-Mot. at 26–27.

In Allied-Signal, Inc., v. United States Nuclear Regulatory Commission, the D.C. Circuit

stated that “[a]n inadequately supported rule, . . . need not necessarily be vacated.” 988 F.2d

146, 150 (D.C. Cir. 1993). But it explained that the decision on “whether to vacate depends on

the seriousness of the [rule]’s deficiencies . . . and the disruptive consequences of an interim

change that may itself be changed.” Id. at 150–51 (internal quotation marks and citation

omitted). So, when there is “the possibility that the [agency] may be able to justify the Rule”

through further explanation on remand, and vacatur in the meantime would cause disruption,

Allied-Signal suggests remand without vacatur. Id. at 151; see Heartland Reg’l Med. Ctr. v.

Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009) (“When an agency may be able readily to cure a

defect in its explanation of a decision, the first factor in Allied-Signal counsels remand without

vacatur.”).

The problem in this case, though, is not simply the absence of adequate explanation.

Defendants lacked the statutory authority to approve the projects under 2026(b), so a more

fulsome (post hoc) record cannot solve the issue, and remand without vacatur is not warranted.

At the same time, the Court will not grant plaintiffs’ request to permanently “enjoin the

enforcement of the waivers.” Pls.’ Opp. at 32–39. “Success on an APA claim does not

automatically entitle the prevailing party to a permanent injunction.” In re Fed. Bureau of

Prisons’ Execution Protocol Cases, 980 F.3d 123, 137 (D.C. Cir. 2020). “When a district court

reverses agency action and determines that the agency acted unlawfully, ordinarily the

appropriate course is simply to identify a legal error and then remand to the agency, because the

role of the district court in such situations is to act as an appellate tribunal.” N. Air Cargo v. U.S.

Postal Serv., 674 F.3d 852, 861 (D.C. Cir. 2012); Bennett v. Donovan, 703 F.3d 582, 589 n.3

(D.C. Cir. 2013). Vacating the unlawful actions here – the Secretary and the USDA’s approval

of the pilot projects and the December 30 memorandum – already accomplishes what plaintiffs

seek through permanent injunction. So the Court will stick with the normal procedure of

vacating and remanding.

CONCLUSION

For the reasons stated above, plaintiffs’ motion for summary judgment will be

GRANTED, and defendants’ cross-motion for summary judgment will be DENIED. The

Secretary and USDA’s approval letters, see A.R. 15–24, 31–48, 54–61, 69–76, 92–99, and its

December 30 memorandum regarding the notice requirement under 7 C.F.R. 282.1(b), see A.R.

190–92, are hereby VACATED and REMANDED.

A separate order will issue.

AMY BERMAN JACKSON

United States District Judge

DATE: June 22, 2026

Aragon v. Rollins

Authorities cited

Opinion · public domain