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YOUR SOURCE ON FOOD LITIGATION AND REGULATION

FDA released a consumer update stating that it supports industry’s effort to toss expiration dating terms on foods, such as “use before,” “sell by,” and “expires on,” for the more neutral date phrase “best if used by.”

The reason for removing these types of date label phrases is simple: consumer confusion. Supposedly, consumers do not know whether these phrases mean food is no longer safe to eat. Additionally, there is no legal requirement to provide a date label phrase on packaged foods (other than infant formula) in the United States, so these phrases are not defined in law or regulation.

However, it turns out most date label phrasing on food in the United States is not based on whether the food is “expired” or unsafe to eat. Instead, date label phrasing is based on how long the food will retain its optimum “quality.” While food may not be at its optimum quality after a “best if used by” date, it does not necessarily mean the food is unsafe to eat. This change in date phrasing may help with some of the food waste issues caused by this consumer confusion. For example, FDA believes that current variations of date label phrasing “contribute to about 20% of food waste in the home” because consumers interpret these labels to mean that the food should not be consumed after the date listed (regardless of phrasing).

But in the battle of quality vs. safety in the unregulated world of date label phrasing for everyday foods, which is the consumer likely to assume “best if used by” means?

Industry’s plan to use a “best if used by” label pulls away from informing consumers about the safety aspects of the foods they produce and instead focuses mostly—if not fully—on quality. It is not surprising that there is widespread support for this shift in phrasing, given that food manufacturers have difficulty developing tests that offer consistent scientific precision as to when particular food items are no longer safe to eat.

However, even if it is difficult to determine when a particular food item is no longer safe to eat, cautious consumers are less likely to realize a “best if used by” phrase focuses on the quality of the food—not on whether it is safe to eat. Additionally, this shift puts the burden onto the consumer to determine whether a food is unsafe to eat if it passes the “best if used by” date. Some foods may be easy for a consumer to determine if they are no longer fit for human consumption (e.g., fish), but not so much for others (e.g., a half-drunk bottle of apple juice). Consumers only have common sense (and hopefully some food safety knowledge) to make that decision for themselves.