Label limbo: Use by when? According to whom?

By Michaela Oldfield

MSU Global Food Law Fellow

You know the scene. There’s that container of yogurt idling in your fridge. It had a "best by" date of a week ago, maybe more. Is it just idling, or is it festering? Should you eat it, or toss it?

This is a conundrum faced by consumers every day, and what do to about their confusion has been getting some recent news coverage. There is a movement happening to address the use of dates in food labels, because they are creating confusion that leads to consumers throwing away perfectly safe food. Even Wal-Mart is getting in on the action.

This issue of labeling is part of a larger, much more complex issue of how to address food waste. Here’s some of the other issues implicated in food waste reduction efforts:

• Why is food being wasted? Because of cosmetic standards, because of food safety standards, because there’s too many calories in our food system for how many people we have? The food waste solution depends on what you see as the cause of the problem.
  
•  Is this about reducing waste to improve sustainability, make more food available, or save consumers money? Is reducing food waste the right approach to tackle that particular problem?

•  Food “waste” can actually be redirected into food “recovery” when it is donated to anti-hunger organizations. But who bears the cost of collecting, distributing and disposing of unusable foods? And is it just to expect low-income individuals to rely on recovered food for their nutritional and caloric needs?

• The best way to reduce waste is to not produce or purchase more than can be consumed, which reduces the availability of food for recovery - how might food waste reduction initiatives operate at counter purposes with each other?
  
•  If we reduce food waste, does that reduce food demands, depressing prices or causing problems for the food industry that needs to sell more food?

There are more issues. Those are just a few that have occurred to me as I’ve been considering the issues and implications of food waste in the U.S. While focusing on date labeling makes sense because its low hanging fruit, these complications make me a little concerned about the strategy. It runs the risk of making it seem that a simple switch by industry and behavioral change by consumers will be a sufficient quick-fix.

Nonetheless, given the recent coverage of food date labels, here’s a brief intro/refresher on some food date labeling law.

Consumption dates on foods in the United States are governed by the Food, Drug and Cosmetic Act, 21 U.S.C. §341 et seq. However, contrary to what many consumers might think, most foods are not required to have any sort of “consume by” or expiration date. For the most part, dates must be used in a manner that is not ‘misbranded”, 21 U.S.C. § 331(a), meaning they cannot be “false or misleading in any particular”, 21 U.S.C. § 343(a)(1). The one exception is that infant formula must be labeled with “use by” dates. 21 C.F.R. § 107.20.

Other than that, it’s up to companies to decide what dates to use and even whether to put any sort of dates.

This issue came up a few years ago in United States v. Farinella, 558 F.3d 695 (7th Cir. 2009), in which the FDA prosecuted a man for misbranding salad dressing when he changed the “best when purchased by” date on the bottles.

The prosecutor in the case took “best when purchased by” to be the same thing as expiration dates, id. at 697, and prosecuted the man on the grounds that it was a safety issue. But that’s not really what those date labeling terms mean.

There’s no consensus on exactly what “best when purchased by” or “best when used by” dates mean 558 F.3d at 698. They’re generally about freshness and taste, but it’s up to the manufacturer to decide what these dates should be based on their knowledge of the product’s shelf life. Id. And in theory, anyone in the distribution chain could make a judgement about the products quality decline and relabel accordingly (though that could constitute a breach of contract between the manufacturer and distributor). Id. at 697.

Expiration dates can have a specific meaning. The FDA’s regulation of infant formula requires “use by” dates which are calculated “on the basis of tests or other information showing that the infant formula, until that date, under the conditions of handling, storage, preparation, and use prescribed by label directions, will: (1) when consumed, contain not less than the quantity of each nutrient, as set forth on its label; and (2) otherwise be of an acceptable quality (e.g., pass through an ordinary bottle nipple).” 21 C.F.R. 107.20(c).

Some states also regulate the “use by” and other labeling dates, with considerable variation as to whether it’s for safety or other fair-marketing reasons. (See the NRDC report the Dating Game for an inventory of states’ labeling laws.)

In the case of United States v. Farinella, since it was being prosecuted under the FDCA, Farinella had done nothing violating that law and so his conviction was overturned.

This confusion over the date labeling arose more recently in Chase v. Bros. Int'l Food Corp., 3 F. Supp. 3d 49 (W.D.N.Y. 2014). In that case, Chase complained to his employer about the date labels being changed, was fired for not signing a non-disclosure agreement that would have restricted him making the information public, and subsequently brought a false termination claim against his employer under the whistleblower protection provisions of the Food Safety Modernization Act, 21 U.S.C.A. § 399d(a).

Whether the employee’s activity was protected under the whistleblower provision turns in part on whether the employee had a reasonable belief that the law was being violated. “It is well settled that an employee's mistaken belief that an employer has violated a law may nevertheless be reasonable provided that the totality of the circumstances establishes that a reasonable employee considering the same facts could have concluded that the employer had violated the law.” 3 F.Supp.3d 49 at 54. Consequently, the labeling date confusion exposes food manufacturers to some potentially difficult employment situations.

So long story short: there’s no consistent federal requirements on what labeling dates should be. Representative Pingree has introduced legislation to try to address this. But in the meantime, so long as the terms and dates are used in a not-misleading manner, food companies can apply dates as they deem appropriate.

If FDA agents and food company employees can’t understand these laws, it’s no wonder that consumers are confused too!