Originally appeared in Law 360 Expert Analysis

Law360, New York (August 25, 2017, 1:06 PM EDT) --

Your milk says “use by”. Your cheese says “best by”. Those pastries? “Enjoy before.” Supermarket shelves are overflowing with food and beverage products bearing a dizzying array of date labels.

The Grocery Manufacturers Association (GMA) and the Food Marketing Institute (FMI) report that at least 10 different date labels on packages – such as Sell By, Use By, Expires On, Best Before, Better if Used By or Best By – are currently in the marketplace.[1] This hodgepodge of date labels has fomented consumer confusion and led many American households to discard wholesome and safe products after the date on the package. Underpinning the litany of varied and imprecise food labeling directives is the fact that – except for infant formula – product dating is not required by federal regulations.

Consumer Confusion

A recent poll conducted by GMA and the Food Policy Action Network, found that:

    • Nearly 60 percent of Americans have discussed the meaning of date labels on their food
    • 40 percent of adults say they have had disagreements within their household over whether a food product should be kept or thrown away
    • Older Americans are slightly more likely to keep food longer, while younger Americans are more likely to throw food away earlier based on the date label[2]

These poll results underscore the need for uniformity in date labeling. The question is whether the U.S. Food and Drug Administration (FDA) or the U.S. Department of Agriculture (USDA) will move towards implementing a national date labeling standard to provide consumers with the clarity they need.

FDA

With the exception of infant formula, FDA does not require food companies to place “expired by”, “use by”, “best before” or any variation thereof on food product labels. Such information is affixed to food product labels entirely at the discretion of the manufacturer.

A core principle of U.S. food law is that foods in U.S. commerce must be wholesome and fit for consumption. A “best by”, “use by” or expiration date does not relieve a firm from this obligation. A product that poses a human health risk would thus be subject to potential regulatory action by FDA to remove it from commerce regardless of any date printed on the label.

USDA

USDA’s Food Safety & Inspection Service regulates the labeling of meat, poultry and certain egg products and takes a similar approach to FDA in the realm of date labeling. That is, USDA does not require date labels on USDA-regulated foods. Unlike FDA, however, FSIS has issued guidance regarding date labeling. In December 2016, FSIS issued updated guidance encouraging manufacturers and retailers of meat, dairy and eggs to use one universal “Best if Used By” date label on their products.[3] FSIS premises its recommendation to employ the phrase “Best if Used By” on research showing that this phrase is easily understood by consumers as an indicator of quality, rather than safety.

Failed Regulatory Measures

The Food Date Labeling Act of 2016, which never made it out of Congress, sought to establish a uniform national system for date labeling that distinguished 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. Such labeling would have only been required to the extent a food manufacturer elected to include a quality date on its food product labels.[4]

A similar measure in California, proposed last year, also floundered in that state’s legislature. Like the failed federal measure, California bill AB 2725 sought to standardize “best if” labeling statements on food products to the extent a food manufacturer elected to include a quality date on its food product labels.[5] Under the proposed bill, a “best if used by” label would signify when the food’s quality is optimal and an “expires on” label would indicate the timeframe within which perishable foods are safe to eat. In other words, like the federal measure, the California bill sought to develop readily understandable messaging to convey the timeframe within which consumers can safely keep and store food.

Industry-led Date Labeling Initiative

To combat consumer confusion about product date labels, grocery manufacturers and retailers joined together earlier this year to adopt a voluntary standard wording on packaging about the quality and safety of products. More specifically, in February of this year, GMA and FMI launched a voluntary initiative to streamline and standardize the wording accompanying the date labels on packages to offer greater clarity regarding the quality and safety of products.[6] This initiative calls for the use of just two standard phrases:

    • “BEST If Used By” – to describe product quality where the product may not taste or perform as expected but is safe to use or consume; and
    • “USE By” – which would apply to the few products that are highly perishable and/or have a food safety concern over time; these products should be consumed by the date listed on the package – and disposed of after that date.

Under the initiative, retailers and manufacturers are encouraged to immediately begin phasing in the common wording with widespread adoption encouraged by the summer of 2018. Broad industry adoption of this new voluntary standard is slated to occur over time to minimize costs to both consumers and manufacturers and so that companies have flexibility to make the changes in a way that ensures consistency and maximum effectiveness across their product categories.

Looking Ahead

The voluntary industry initiative to distill date labels to just two standard phrases – “BEST If Used By” and “USE By” promises to go a long way towards stemming consumer confusion. Although voluntary in nature, it is expected that GMA and FMI members (who, combined, represent over 250 leading food and beverage companies and 40,000 retail food stores) will adopt the voluntary date labeling standards.

Implementing a voluntary framework over time – as opposed to a mandatory federal standard – facilitates manufacturers’ ability to work the new date labels into other recent food labeling changes sweeping the industry. As such, from a consumer confusion standpoint, a uniform federal regulatory framework for date labeling is arguably not needed at this time. Further, given the Trump administration’s aversion to adopting new regulations for business, it is unlikely that we will see any near-term move at the federal level to issue mandatory requirements tracking the date labeling terminology proffered by GMA and FMI.

Nevertheless, it remains to be seen whether states will elect to jump into the fray to address consumer confusion concerns, along the lines of the failed federal and state bills discussed above, leading to a patchwork of differing date labeling standards for all foods.[7] As it stands, 41 states and Washington, D.C., require date labels on a limited number of foods. The development of a patchwork of differing standards at the state level for all foods (and the resultant regulatory burden on businesses to comply), could conceivably trigger rulemaking at the federal level as reflected in the GMO labeling saga that ultimately spurred the creation of the National Bioengineered Food Disclosure Standard.