How Industry and Congress Plan to Fix Food Expiration Labels

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.

Government Regulations of Expiration Dating

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

NRDC Recommendations for Date Labeling

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:

• Increases costs for consumers and the industry at large
• Squanders important natural resources used to grow, process, distribute, and store the food supply
• Represents a missed opportunity to feed millions of food-insecure households struggling to access healthy, affordable food

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:

• Establish a reliable, coherent, and uniform consumer-facing dating system.
• Create a set of best practices that manufacturers and retailers can use to determine date labels for products. 
• Establish standard, unambiguous language for both quality-based and safety-based date labels.
• Make “sell by” dates invisible to the consumer, as they offer no useful guidance once the product is in the home.
• Remove quality-based dates on non-perishable, shelf-stable products.
• Promote the use of “freeze by” dates where applicable to help raise consumer awareness of the benefits of freezing foods.
• Increase the use of safe handling instructions and “smart labels” to provide clear, pertinent food safety information.

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:

• Converting to a system which adopts the recommended changes 
• Selling or donating near-expiration or expired products
• Educating consumers on the meaning of date labels and on safe food handling

Industry Guidelines for Date Labeling

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:

• “Best if used by” would communicate quality (i.e., the product is still safe to consume after the date).
• “Use by” would indicate a product that is highly perishable or might have food safety risks over time.

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.

The Food Date Labeling Act

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.

The Food Recovery Act

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:

• Raising awareness about wasted food and food recovery efforts to reduce the quantity of wasted food
• Reducing food waste at schools and farms
• Installing facilities that include composting or anaerobic digesters that use food or crop waste to produce energy

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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