This post was written by Janelle Langan, a LL.M Global Health Law Graduate from Georgetown University Law Center. Any questions or comments about the post should be directed to firstname.lastname@example.org.
As the recent holiday season comes to a close, it is clear that food is not only a traditional basic need but also a central fixation within our culture, where gatherings and celebrations amongst families and friends often revolve around a shared meal. Despite the necessity and cultural importance of food, it is alarming that a significant amount of the yearly food supply is wasted by consumers.
Food waste occurs when food, that otherwise could have been consumed, is discarded. The consequences of food waste include the: (1) unnecessary depletion of natural resources that are utilized in the food production process; (2) lost opportunity to assist those who live in food insecure households that struggle to access healthy as well as affordable food; and (3) acceleration of climate change from greenhouse gases created by wasted food that decomposes in landfills.
The most significant factor that causes household food waste is the confusion over open food date labeling, which consumers often mistakenly interpret as the date of spoilage. An open date label is placed on food products by manufacturers to communicate the estimated date of optimum quality for consumption. Additionally, open date labels are used to instruct retailers as to length of time that the product should be displayed for sale as determined by the manufacturer. Examples of these labels include terms such as “Use By”, “Sell By”, “Best If Used By”, and “Best If Used Before.”
This type of labeling is mostly unregulated under federal law even though it falls within the joint regulatory authority of the United States Food and Drug Administration (“FDA”) and the United States Department of Agriculture’s Food Safety and Inspection Service (“FSIS”). Given this lack of regulation, the perimeters of open food date labels unfortunately fall solely within the manufacturer’s discretion.
Recently, FSIS issued guidance urging manufacturers to utilize the term “Best if Used By” in lieu of other open date terms because this term emphasizes the quality of food rather than its safety for consumption. Additionally, this guidance provides standardized definitions of common open date labeling terms in order to address consumer confusion over inconsistent terms.
Under this guidance, the “Use By” date indicates the last date of peak quality as recommended by the manufacturer. This is not a date intended to indicate safety of consumption. Similarly, the “Best If Used By” and “Best If Used Before” dates indicate the last date on which the product retains its best flavor or quality. This date is also not intended to be utilized as a deadline for consumer purchase or safety of consumption. Finally, the “Sell By” date indicates the last date on which the store should display the product for sale. This date is not a safety date as it encompasses a reasonable period of consumer consumption after the product is purchased.
This guidance raises awareness over the confusion surrounding open date labeling of products. It also makes a necessary step forward toward influencing manufacturers’ date labeling practices. However, it fails to put forth the robust changes necessary to decrease food waste and substantially increase consumer awareness. Steps to further reduce food waste and clarify ambiguous open date labels should involve a joint effort by USDA and FDA to:
Remove open food date labels on nonperishable food products in order to emphasize the importance of date labels placed on perishable food products and avoid waste of nonperishable food products;
Require quality-based and safety-based use of date labels that utilize both uniform standards as well as unambiguous language through binding enforcement powers;
Promote a “Freeze By” date label on perishable food products in order to raise consumer awareness of the increased self-life attainable through the freezing process;
Encourage the use of removable “Sell By” date labels that would allow retailers to remove this confusing label before consumer purchase; and
Continued consumer education regarding the usage of open date food labeling as well as the negative consequences of food waste.
In addition to these necessary steps forward, consumers as well as advocates should encourage legislative reform of the current unregulated open date labeling scheme.
 The FSIS regulates meat, poultry, and egg products. Whereas, the FDA regulates food products that fall outside the authority of the FSIS. Infant formula falls within the jurisdiction of the FDA and is currently the only product date that is regulated by federal law.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.