Uniform Date Labeling of Food May Address Food Waste

Uniform Date Labeling of Food May Address Food Waste

Updated September 15, 2023
Uniform Date Labeling of Food May Address Food Waste
In the United States, 30%-40% of the food that is produced
Researchers contend that uniform or standardized date
is unsold and uneaten, according to the U.S. Department of
labeling is among the leading options to prevent food waste
Agriculture (USDA). Confusion regarding how consumers
and offers a cost-effective solution to divert food from
interpret food date labels is believed to result in food being
being thrown away. ReFED claims that standardizing date
thrown away that may have been safely consumed or
labels nationally potentially could divert 582,000 tons of
donated. Waste due to date labeling confusion is estimated
food waste per year and could provide $2.41 billion in
to contribute to about 7% of all food waste in the United
annual economic value—addressing an estimated 15% of
States. Legislation addressing food loss and waste includes
preventable food waste. Estimates by the Harvard Law
proposals to modify food date labeling requirements to
School’s Center for Health Law and Policy Innovation
establish federal requirements for food quality and discard
(CHLPI) claim federally standardized date labels have the
dates on product labels. For background on other food loss
potential to divert an estimated 398,000 tons of food waste
and waste legislative proposals, see CRS In Focus IF10317,
per year with a total economic value of $1.8 billion.
Policy Issues Involving Food Loss and Waste.
Food Date Labeling in the United States
Open Date Labeling Terminology
Food date labeling consists of a calendar date on a food
•
Sell by—Date, determined by food manufacturers, by
label with an accompanying explanatory phrase (referred to
which the food at retail should be sold unless it is frozen
as open date or product code labeling; see text box). The
prior to or upon reaching the date. The product may be
Food Marketing Institute (FMI) claims more than 10
usable beyond this date before the quality is less than the
different date label explanatory phrases are used on food
manufacturer’s standards for consumer acceptance. About
products packaging. These include sell by, use by, best by,
one-third of the product’s shelf life remains typically after
fresh until, use or freeze by, enjoy before, and expires on,
the sell by date for consumer use at home. Manufacturers
among others.
may credit the store for the past-date product, especial y if
Food date labeling is intended to convey information to
it is donated to food banks or food salvage stores.
retailers and consumers regarding a product’s shelf life and
•
Use by—Date, determined by the product manufacturer,
optimum quality as well as for in-store stock rotation. These
by which the product should be consumed. Retail packaging
dates (sometimes coded) primarily convey information
of certain reduced-oxygen packaged foods requires labeling
regarding food product quality and generally are not critical
with use by dates and time limits for refrigerated shelf life.
to food safety. Date labeling is generally not required by
•
Best by, best if used by, best if used before, or best
federal regulation, and the regulatory requirements and
before—Dates by which the product should be consumed
guidance varies by state and globally. The terminology that
for ideal quality. These may be combined with a freeze by
manufacturers use on food product packaging also varies.
statement (for example, best if used by X or can be frozen
Some contend that the current array of different date
but must be used within X days if taken from the freezer),
labeling phrases on food product packages causes consumer
which is becoming commonly used with poultry and fish.
confusion about the meaning of these date labels. They
•
Other terms—Other date phrases include fresh until, use
claim consumers mistake date labels as food expiration
or freeze by, enjoy before, and expires on, among others.
dates meaning that past-date foods are unsuitable for
Source: CRS from the Institute of Food Technologists.
consumption, resulting in food being discarded
prematurely. Research suggests that more than 80% of
consumers discard food near the package date at least
Current Food Date Labeling Laws
occasionally. Many consumers perceive food date labels as
Except for infant formula, federal law does not require the
communicating information about the product’s safety and
federal food safety agencies to implement a national food
believe eating food past its sell by date would pose a health
dating system. Laws governing food regulation do not give
risk. Other research suggests it may be the label date and
the Food and Drug Administration (FDA) and USDA
not the phrasing on the labels that influences consumer
explicit authority to impose specific date labeling
decisions to discard food. Surveys conducted by the
requirements for foods. Instead, date labeling information is
Consumer Brands Association (formerly the Grocery
largely at the discretion of the manufacturer. FDA does not
Manufacturers Association, GMA) found that the majority
require food manufacturers to put open dating terminology
of Americans (85%) believe simplified date labels may be
on food product labels, and laws governing FDA’s food
helpful, allowing them to feel confident and safe about the
safety activities do not preclude the sale of food past the
foods they eat and to throw away less food. ReFED (a
date on the label. FDA has expressed general support for
national nonprofit organization) claims that roughly one-
the food industry’s efforts to standardize labeling terms and
half of all food waste occurs at the consumer level, partly
consumer education efforts. Similarly, date labels are
due to confusion over date labels found on food packages.
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Uniform Date Labeling of Food May Address Food Waste
generally not required on food products regulated by
required. In some jurisdictions, retailers risk criminal
USDA’s Food Safety and Inspection Service (FSIS).
prosecution. In recent years, some states, including
California, Massachusetts, and New Jersey, have introduced
However, FSIS is required to put a pack date (reflecting the
or enacted legislation to standardize food date labeling
date that a product is packaged) on poultry products; also, if
requirements to reduce waste and consumer confusion
a date is shown on the label of an FSIS-regulated product, it
regarding food date labels.
must display the month, date, and year in addition to a
phrase explaining the meaning of that date (such as the sell
Studies by the Institute of Food Technologists (IFT) further
by or use before date). FSIS guidance (Directive 7020.1) is
illustrate that food date labels vary by country and may
intended to facilitate food donation and reduce waste of
cause consumer confusion globally. The United Nations
USDA-regulated meat and poultry products (9 C.F.R.
(U.N.) reports that food date labels have been linked to food
317.8, 381.129, and 590.411).
waste due to (1) misinterpretation by consumers and (2)
how date markings are used by regulatory authorities and
Food date labeling is regulated at the state and local levels,
by food businesses to advise subsequent food chain
and the requirements often vary widely. A 2019 CHLPI
operators on the appropriate shelf life of a food. The U.N.
study highlights how the current “patchwork of state laws
further notes the need to educate supply chain stakeholders
nationally is ineffective at achieving widespread
consistency in date labeling.” The study examine
on the difference between various food date markings. The
d the
Codex Alimentarius has developed international guidance
extent that state level food date labeling compares to
on date markings such as best before date or best quality
labeling under a voluntary industry initiative, the Product
before date and also use by date or expiration date.
Code Dating Initiative (PCDI) established by the GMA and
FMI. PCDI is intended to encourage manufacturers to use
Considerations for Congress
standardized date labeling language. CHLPI’s study shows
A federal interagency strategy on food loss and waste has
that PCDI is inconsistent with state laws in more than half
been developed by USDA, FDA, and the Environmental
of all U.S. states. Of the states with laws requiring or
Protection Agency (EPA). Among the strategy’s priorities
regulating the use of date labels, 27 states had date label
is to “Clarify and Communicate Information on Food
laws that conflict with PCDI for at least one food product
Safety, Food Date Labels, and Food Donations” (Priority
(Figure 1). Conflicts occurred most often for shellfish (nine
Area 4). This stated goal seeks to establish and
states), eggs (nine states), and milk and dairy products
communicate how “clearer, coordinated voluntary guidance
(eight states). A previous study by Harvard Law School and
on food date labels and liability protection around food
the Natural Resources Defense Council noted 41 states and
donation could help increase food recovery and lead to
the District of Columbia require date labels on some foods.
reductions in food waste and food insecurity.”
Nine states did not require such labels on any foods.
Standardizing federal date labels could include amendments
Figure 1. State-Level Conflicts with Industry Initiative
to laws such as the Federal Meat Inspection Act (21 U.S.C.
§601); the Poultry Products Inspection Act (21 U.S.C.
§453); the Egg Products Inspection Act (21 U.S.C. §1033);
and the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
§§321 et seq.).
Jointly, USDA, FDA, and EPA have entered into formal
agreements with both the Food Waste Reduction Alliance
(composed of GMA, FMI, and the National Restaurant
Association; MOU 225-19-033) and the nonprofit ReFED
(in an agreement through 2024). These and other groups
recommend streamlining and standardizing federal food
date labels to two industry-endorsed phrases: (1) BEST if
used by to indicate a food’s peak quality and (2) USE by to
indicate possible food safety risks. Aspects of this proposal
are reflected in the Food Date Labeling Act of 2023 (H.R.

3519/S. 1484), which would establish both a discard and a
Source: CRS from Harvard Law School, Center for Health Law and
quality date. The quality date would communicate that
Policy Innovation (CHLPI), Date Labels: The Case for Federal Legislation
although the product’s quality may begin to deteriorate, the
(Appendix), June 2019.
product remains an apparently wholesome food (as defined
Notes: PCDI refers the Product Code Dating Initiative. The map
in the Bill Emerson Good Samaritan Food Donation Act, 42
indicates whether state laws conflict with the voluntary initiative
U.S.C. §1791(b)). The Agriculture Resilience Act (H.R.
developed by the food retail industry to encourage manufacturers to
1840/S. 1016, Title VII) also proposes to standardize use of
use standard date labeling language.
a discard and quality date as well as a freeze by date,
among other terms. H.R. 1840/S. 1016 would further
Researchers have noted that there is wide variation in terms
require that the Federal Trade Commission ensure such
of regulatory stringency across U.S. states. For example,
uniform phrasing be standardized across all food products
while some states regulate the sale of food products after
(except for infant formula). H.R. 1840/S. 1016 also would
the expiration of some label dates, many states do not.
broaden liability protections for food donation and food
States also differ widely in the kinds of foods they require
recovery to include food items with past quality date labels.
to bear date labels and the types of date labels that are
Renée Johnson, Specialist in Agricultural Policy
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Uniform Date Labeling of Food May Address Food Waste

IF10398

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