Executive Summary
On December 4, 2024, the U.S. Food and Drug Administration (FDA) and the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) published a joint Request for Information (RFI) that seeks public input on industry practices and consumer perceptions relating to food date labeling and the impact of such labeling on food waste. The agencies issued the RFI as part of the Biden-Harris Administration’s efforts to drive down food loss and waste, as outlined in the National Strategy for Reducing Food Loss and Waste and Recycling Organics published in June 2024. According to the RFI, information submitted may be used to inform future policy decisions or consumer education campaigns on food date labels and ultimately lead to cost savings for U.S. consumers. While the comment period closes on February 3, 2025, interested parties would be wise to submit comments before January 20, 2025 given the upcoming change in administration.
Background
In 2015, the U.S. Environmental Protection Agency (EPA) and USDA jointly announced a national goal to reduce food loss and waste by 50% by 2030.[1] EPA estimates that the food retail, food service, and residential sectors generated 66 million tons of wasted food in 2019, and the food and beverage manufacturing and processing sectors generated an additional 40 million tons of food waste that same year. [2] Wasted food is the single largest category of material sent to landfills.[3]
In December 2023, EPA, USDA, and FDA released a draft National Strategy for Reducing Food Loss and Waste and Recycling Organics (National Strategy) that outlined several actions and objectives aimed to decrease food waste and loss and to increase recycling of organic waste.[4] The draft described potential actions involving food date labeling, including changing date labeling and improving consumer awareness and understanding. In response, USDA and FDA received comments calling for an update to federal date labeling requirements, including standardizing date labeling. Commenters noted that food manufacturers use various phrases such as “Sell By,” “Use By,” and “Best By” on product labels, and the use of these different phrases may cause consumer confusion and lead to premature disposable of wholesome and safety food.[5]
In June 2024, EPA, USDA, and FDA published a final version of the National Strategy, in which USDA and FDA recommend that the food industry voluntarily apply the “Best if Used By” date label to food products.[6] The agencies maintain that this date label identifies the date after which food quality may decline but the product may still be consumed and therefore serves to lessen consumer confusion and reduce food waste. Although the National Strategy encourages use of the phrase “Best if Used By” in food date labeling, neither USDA or FDA currently mandates that food products bear date labeling. While USDA-FSIS has established certain requirements for voluntary food date labeling, [7] neither agency has promulgated regulations specifying the phrases that must be used in such labeling. As such, under federal law, industry may use other date labeling phrases—such as “Sell By” or “Use By”—as long as the labeling is truthful and not misleading.
Request for Information
The RFI poses 13 questions for comment, spanning three topics: (1) industry practices and preferences for date labeling; (2) research on consumer perception of date labeling; and (3) food loss and waste research.
Seven questions relate to industry practices and preferences for date labeling. These questions seek clarity around which food products contain date labels, what standards or criteria manufacturers and producers consider when deciding which label phrase and date to use, whether the selected phrase impacts the date, and related challenges and costs. The agencies also seek information on how grocery retailers determine that a food item is no longer sellable and whether and how they rely on date labels.
Three questions center on consumer perception research. These questions ask commenters for available studies and data on consumer understanding or confusion relating to date labels, and how consumers consider food date labels when grocery shopping or discarding food.
Three questions relate to food loss and waste research. These questions ask commenters which studies detailing the effects of date labeling on food waste FSIS and FDA should consider. These questions also seek information about the factors that manufacturers, retailers, food banks, and individuals consider when determining which food items to donate or discard and related available estimates.
Deadline for Comments
Comments for the joint RFI on food date labeling are due on or before February 3, 2025.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Food, Beverage, and Dietary Supplements practice.
[7] For meat, poultry, and egg products regulated by FSIS, voluntary date labeling must express both the month and day of the month. 9 C.F.R. §§ 317.8(b)(32)(i), 381.129(c)(1). The year must also appear on shelf-stable and frozen products. For all FSIS-regulated food products, a phrase explaining the meaning of the date, such as “Best if Used By,” must appear next to the date. Id. §§ 317.8(32)(ii), 381.129(c)(2).
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