The new SNAP food restrictions aren’t just confusing — they’re illegal |
The new SNAP food restrictions aren’t just confusing — they’re illegal
Eighteen states have gained Department of Agriculture approval to restrict what 1.4 million SNAP recipients can purchase at grocery stores through the program. Eight have already begun enforcement — and the contradictions are immediate.
A chocolate-covered granola bar is SNAP-eligible in Idaho and Louisiana but restricted in Oklahoma. All three waivers were approved by the Department of Agriculture. All three states began enforcement this month.
Small grocery stores are facing hundreds of thousands in implementation costs and risk losing SNAP authorization entirely if they can’t navigate the contradictions. Multi-state retailers must track which state issued each customer’s EBT card to know what they’re allowed to buy — because the same granola bar that’s eligible in one state may be banned in another.
But here’s the problem that matters more than the administrative chaos: The Department of Agriculture lacks legal authority to approve any of this.
Section 17 of the Food and Nutrition Act authorizes “demonstration projects” to test improvements in how SNAP delivers benefits. This applies to projects that streamline applications, expedite processing and simplify delivery. It does not provide for substantive changes to program design or benefits.
For 60 years, the Department of Agriculture has repeatedly denied state requests to restrict SNAP-eligible foods. In 2004, they rejected Minnesota’s attempt to restrict SNAP recipients from purchasing candy and soft drinks. A 2011 proposal in New York City to restrict recipients from buying soda and other sugary drinks was rejected. And in 2024, Iowa’s request to exclude lab-grown meat was denied, noting that it did not meet any of the approved criteria.
Then in 2025, this changed. Not the statute or the evidence — just the administration.
The Department of Agriculture suddenly approved Nebraska’s request to ban soda and energy drinks for the first time in SNAP’s history. Seventeen more approvals quickly followed.
This amounts to the executive branch rewriting legislation and dressing it up it as mere administrative flexibility.
Food restrictions do not improve how benefits are delivered. Rather, they change what the benefit is. That’s substantive program redesign, which requires congressional authorization.
Yet, Congress has repeatedly rejected food restriction proposals. In 1977, Congress specifically refused to eliminate foods with “negligible nutritional value,” calling it “a cure worse than the disease.”
The separation of powers violation here is blatant. Congress designed SNAP around participant choice, broad food definitions, and electronic benefits functioning like debit cards. These waivers contradict all three.
Conservatives and liberals may disagree about whether restricting soda purchases improves health. But both should agree that the executive branch cannot implement what Congress has rejected simply because an administration likes the policy. That’s not a policy dispute — it’s executive fiat.
The effects extend beyond SNAP. If these waivers go unchecked, every safety net program with waiver provisions becomes vulnerable. The Department of Health and Human Services tried this with Medicaid work requirements. Federal courts repeatedly struck down those waivers in Stewart v. Azar and Gresham v. Azar, holding that the secretary acted arbitrarily by approving waivers that undermined Medicaid’s core purpose.
SNAP waivers suffer from identical defects: Restrictions that reduce program participation undermine SNAP’s core purpose of alleviating hunger.
But here’s what makes the current situation even worse: The One Big Beautiful Bill Act created a $50 billion Rural Health Transformation Program that scores states on whether they submit SNAP restriction waivers. Mississippi Republican Gov. Tate Reeves (R) admitted publicly that his state wants to secure “our fair share and the fair share of a couple other states” that didn’t submit food waiver requests.
States aren’t requesting restrictions because data suggests they will work. Instead, they are chasing competitive funding points.
Courts must vacate these approvals. The Stewart and Gresham rulings provide the precedent. The statutory text provides the limits.
All that’s missing is a plaintiff.
Food retailers facing $1.6 billion in implementation costs have the most obvious case — particularly small grocers in rural communities who risk losing SNAP authorization entirely if they fail to navigate the patchwork of confusing rules. States now facing new error-rate penalties have grounds to sue as well. And advocacy organizations like those that successfully challenged Medicaid work requirements in Stewart and Gresham can bring a challenge on behalf of affected SNAP participants.
Someone needs to sue. Because if these waivers survive unchallenged, demonstration authority becomes a blank check for executive restructuring of any program with waiver provisions.
Whether food restrictions improve nutrition or not, the executive branch doesn’t get to find out by implementing policies Congress rejected — and courts should say so.
The only mystery is why no one has asked them to.
Tyson-Lord Gray, J.D., Ph.D., is Harold A. Stevens Visiting Assistant Professor of Law at Benjamin N. Cardozo School of Law and teaches business law and ethics at NYU Stern School of Business.
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