In our previous post about expiration labels, we surveyed the history of open dating, its lack of standardization, and the subsequent consumer confusion about food safety that creates unnecessary food waste. In this post, we follow up with a discussion of the current (and inadequate) regulations for expiration dating, recommendations for change by the Natural Resources Defense Council (NRDC), current industry voluntary guidelines, and promising federal legislation now before Congress.
The scope of federal laws governing food labeling is broad, and does not currently address expiration dating specifically. The federal government has the power to regulate date labels under the Commerce Clause in the U.S. Constitution. However, because Congress has not passed national date labeling legislation, neither the USDA nor the FDA have been given explicit authority to regulate expiration standards.
But it has delegated general authority to both agencies to protect consumers from deceptive or misleading food packaging information. the FDA has the power to regulate false or misleading labels under the Food, Drug, and Cosmetic Act, which prohibits the misbranding of food. the USDA and its enforcement agency, the Food Safety and Inspection Service (FSIS), also have the power to regulate misleading labels for all products under its jurisdiction in much of the same manner.
While the FDA could in theory regulate date labeling practices for the foods under its purview, the agency has not done so except for infant formula. the USDA more explicitly addresses date labeling for food products under its jurisdiction. With a few exceptions, however, such as requiring an open or coded “pack date” for poultry products, the USDA also does not generally require date labels on regulated products.
If the FDA or the USDA were to agree that date labels are “misleading,” they could make a case that their existing authority allows them to regulate date labeling as a form of misbranding of food items, without any need for legislative action. The FDA and the USDA could also work together to create regulations that ensure date labels are standardized. Currently, however, neither agency has initiated label reform on its own.
Instead of actively regulating uniform date labeling practices, the federal government provides voluntary guidance. For meat, poultry, and egg products under the jurisdiction of FSIS, for example, dates may be voluntarily applied provided they are truthful and not misleading. The result, however, is that consumers cannot rely on the dates to consistently have the same meaning across food products distributed nationwide.
Food date label regulations by state. Source: https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/03/28/food-waste-is-a-major-problem-confusing-date-labels-are-making-it-worse
In 2013, the Natural Resources Defense Council (NRDC) published a highly influential report entitled “The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America.” The fundamental argument of the report is that the waste of edible food by consumers, retailers, and manufacturers poses a significant burden to the American food system.
Wasted food has several negative consequences:
What is a key factor leading to this waste? Consumer misinterpretation of expiration date labels. And how can the consumer confusion be resolved? By improving date labeling policies and practices that will not only reduce food waste, but also improve food safety.
The report provides specific recommendations to government agencies that would standardize and clarify the food labeling system:
Example of a smart label. Source: https://moneyinc.com/smart-food-label/
Food industry professionals can also take meaningful steps to reduce date label confusion, reduce food waste, and improve consumer safety:
Following the recommendations of the NRDC, food industry guidelines were released in 2017 by the Grocery Manufacturers Association (GMA) in partnership with the Food Marketing Institute (FMI), a group specializing in public policy and food safety. Streamlined and to the point, the guidelines ultimately recommend the use of only two date labels:
Studies have shown that streamlined labels best convey to consumers that food products do not have to be discarded after the date if they are stored properly.
Currently, the FDA supports the food industry’s efforts to standardize the use of the term “Best if Used By” on its packaged-food labeling if the date is simply related to optimal quality – not safety. The FDA leaders added that standardizing date labels isn't enough to effect change alone, so consumer education by industry, government, and NGOs must be part of the effort as well.
Realizing that industry guidelines are a good model to emulate, if still only voluntary, U.S. Senator Richard Blumenthal (D-CT) and Congresswoman Chellie Pingree (D-ME) recently introduced a Food Date Labeling Act that would establish a mandatory uniform national date labeling system on food products to eliminate confusion, simplify regulatory compliance for companies, and reduce the waste of food and money.
The bill establishes a system that clearly distinguishes between foods that bear a label indicating peak quality from foods that bear a label indicating they may become unsafe to consume past the date. The bill proposes to give food manufacturers a choice between two terms: “Best if used by,” which would indicate the food’s quality, and “use by,” which sets a date to throw it out – the very guidelines proposed by the food industry. This bill would also ensure that food is allowed to be sold or donated after its quality date, and that consumers are educated about the meaning of new labels so that they can make better decisions.
The Food Date Labeling Act has received widespread support from food waste and food policy advocates and organizations, including the Academy of Nutrition and Dietetics, Consumer Federation of America, Feeding America, and the Food Recovery Network. It is still being debated in the House of Representatives.
In tandem with the Food Date Labeling Act, the Food Recovery Act, also sponsored by Blumenthal, represents a broad and effective way to prevent food waste. The bill authorizes grants or loans for activities related to:
The Food Recovery Hierarchy. Source: http://wasatchresourcerecovery.com/food-recovery-hierarchy/
The Food Recovery Act is also pending in Congress. If passed, the law would help save money, save food for people who are food insecure, and avoid environmental damage. The proposed legislation would fund campaigns to educate consumers and school children about food waste. It would also strengthen good Samaritan laws, which shield businesses from lawsuits if recipients of their donated food get sick.
These bills are all still up in the air. So, until they are actually enacted by Congress, it makes good sense for the grocery sector to follow the GMA/FMI guidelines until regulations can be implemented and enforced by the FDA and the USDA.
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