[Federal Register Volume 84, Number 68 (Tuesday, April 9, 2019)]
[Pages 14083-14085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06988]



Food Safety and Inspection Service

[Docket No. FSIS-2019-0009]

Availability of FSIS Food Product Dating Fact Sheet

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Notice; response to comments.


SUMMARY: FSIS is announcing the availability of an updated fact sheet
on food product dating. The fact sheet is aimed at reducing food waste
through encouraging food manufacturers and retailers that apply product
dating to use a ``Best if Used By'' date label. FSIS recommends the use
of a ``Best if Used By'' date label because research shows that this
phrase is easily understood by consumers as an indicator of quality
rather than safety. FSIS is also responding to comments received on the
previous version of the fact sheet that it announced in the December
2016 Constituent Update.

ADDRESSES: A downloadable version of the updated fact sheet is
available to view and print at

Labeling and Program Delivery Staff, Office of Policy and Program
Development, Food Safety and Inspection Service, U.S. Department of
Agriculture, Stop Code 3784, Patriots

[[Page 14084]]

Plaza 3, 8-161A, 1400 Independence Avenue SW, Washington, DC 20250-
3700; Telephone (301) 504-0879; Fax (202) 245-4792.



    In the United States, approximately 30 percent of the food supply
is wasted.\1\ Wasted food is the single largest category of material
placed in municipal landfills \2\ and much of it likely could have
helped feed families in need. Additionally, water, energy, and labor
used to produce wasted food could have been used for other purposes.

    \1\ See https://www.ers.usda.gov/amber-waves/2013/june/ers-food-loss-data-help-inform-the-food-waste-discussion/.
    \2\ See https://www.epa.gov/facts-and-figures-about-materials-waste-and-recycling/national-overview-facts-and-figures-materials.

    The Food Safety and Inspection Service (FSIS) administers a
regulatory program under the Federal Meat Inspection Act (FMIA) (21
U.S.C. 601 et seq.), the Poultry Products Inspection Act (PPIA) (21
U.S.C. 451 et seq.), and the Egg Products Inspection Act (EPIA) (21
U.S.C. 1031 et seq.) to protect the health and welfare of consumers.
The Agency is responsible for ensuring that the nation's commercial
supply of meat, poultry, and egg products is safe, wholesome, not
adulterated, and correctly labeled and packaged. Consequently, FSIS is
uniquely positioned to address the problem of wasted meat, poultry, and
processed egg products by working with Federal, State, tribal and local
governments, faith-based institutions, industry, and consumers to raise
awareness of food waste issues, simplify requirements for donation,\3\
and share best practices.

    \3\ In January 2016, FSIS issued Directive 7020.1, which makes
it easier for companies to donate wholesome products that may be
misbranded or economically adulterated. The Directive is available
at https://www.fsis.usda.gov/wps/wcm/connect/25e1becc-4201-4cc0-a707-c9ed38a2f01c/7020.1.pdf?MOD=AJPERES.

    On December 14, 2016, FSIS announced in the Constituent Update \4\
the availability of and requested comment on a fact sheet aimed at
reducing food waste through encouraging food manufacturers and
retailers that apply product dating to use a ``Best if Used By'' date
label. FSIS recommended the use of a ``Best if Used By'' date label
because a national survey showed that this phrase is easily understood
by consumers as an indicator of food quality rather than food

    \4\ https://www.fsis.usda.gov/wps/wcm/connect/589fdc30-1f3e-4901-b594-65fc3b46bcba/ConstiUpdate121616.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=589fdc30-1f3e-4901-b594-65fc3b46bcba.
    \5\ See Emily Broad Leib, Christina Rice, Roni Neff, Marie
Spiker, Ali Schklair & Sally Greenberg, Consumer Perceptions of Date
Labels: National Survey, Harvard Food Law and Policy Clinic,
National Consumer Institute and Johns Hopkins Center for a Livable
Future (May 2016), http://www.chlpi.org/wp-content/uploads/2013/12/Consumer-Perceptions-on-Date-Labels_May-2016.pdf.

    As FSIS explained in the fact sheet, except for infant formula,\6\
product dating is not required by Federal regulation. Food
manufacturers frequently use a variety of phrases such as ``Sell By''
and ``Use By'' on product labels to describe quality dates on a
voluntary basis. The use of different phrases to describe quality dates
has likely caused consumer confusion and has led to the disposal of
food, just because it is past the date printed on the package, food
that is otherwise wholesome and safe.

    \6\ See 21 CFR 107.20(c).

    After carefully reviewing all comments received, FSIS made minor
changes to the fact sheet. These changes include updating a hyperlink
to FSIS's fact sheet on shelf-stable products and adding ``Freeze By''
to the list of commonly used phrases used on labels to describe quality
dates. Additionally, a footnote was added to clarify that while FSIS
does not require date labeling for food quality or food safety, FSIS
does require a ``pack date'' for poultry products and thermally
processed, commercially sterile products to help the Agency identify
product lots and facilitate trace-back activities in the event of an
outbreak of foodborne illness.\7\ The updated fact sheet is available
on the Agency's website at https://www.fsis.usda.gov/wps/wcm/connect/19013cb7-8a4d-474c-8bd7-bda76b9defb3/Food-Product-Dating.pdf?MOD=AJPERES.

    \7\ See 9 CFR 381.126 and 9 CFR 431.2(e).

Summary of Comments and Responses

    FSIS received 46 comments on the 2016 version of the fact sheet
from individual consumers, registered dietitians, employees of food
assistance centers, an employee of a food processing company, the
chairman of a county legislature, a food inspector, a State
environmental protection agency, a trade association representing the
meat industry, and a policy group associated with a law school. A
summary of issues raised by commenters and the Agency's responses
    Comments: Most commenters liked the fact sheet and agreed that food
manufacturers and retailers should use ``Best if Used By'' date labels
to reduce unnecessary food waste caused by consumer label confusion.
These commenters argued that because consumers understand that ``Best
if Used By'' is an indicator of food quality and not food safety, they
are less likely to waste food. According to these commenters, consumers
know that they can safely eat food after the passage of the ``Best if
Used By'' date. A policy group that supported the fact sheet also noted
that ReFED, a non-profit organization committed to reducing U.S. food
waste, published a report that stated that ``standardizing date labels
nationally was the most cost-effective solution to reduce food waste,
with the potential to divert 398,000 tons of food waste per year and
provide $1.8 billion per year in economic value.''
    Several commenters argued that FSIS should go a step further and
require food product dating labels. The same policy group mentioned
above noted that two of the largest trade groups representing the
grocery and manufacturing industries launched a voluntary initiative to
standardize date labels on food packages, and that these trade groups
also recommended the use of ``Best if Used By'' to indicate food
quality. The policy group argued that because ``Best if Used By'' is
the label preferred by industry to indicate quality, FSIS should just
require ``Best if Used By'' dates on all meat, poultry, and egg
products. Some consumers and a registered dietitian argued that rather
than require ``Best if Used By'' labels, FSIS should require safety-
based consume-by date labels.
    Response: At this time, FSIS does not believe it is necessary to
conduct rulemaking to require ``Best if Used By'' or safety-based
consume-by date labels. As noted above, members of industry are already
taking steps to standardize food product dating labels on their own.
Additionally, the magnitude in number, diversity, and complexity of
products that exist in the marketplace make it difficult to require
safety-based consume-by date labels. Food safety after the date of food
production largely depends on the environmental, storage, and
distribution conditions of the food. Moreover, if companies decided to
use conservative safety-based consume-by dates, these labels may cause
an increase in the amount of food that is wasted.
    Comments: An employee of a food processing company and a food
inspector argued that the phrase ``Best if Used By'' is too wordy for a
food product label. The same commenters suggested that FSIS recommend
the shorter phrases, ``Sell By,'' ``Use By,'' and ``Best By.'' However,
a few

[[Page 14085]]

consumers argued that ``Best if Used By'' is too short and vague. These
commenters suggested that FSIS use ``Best Quality if Used By.'' A trade
association representing the meat industry also argued that ``Best if
Used By'' is too ambiguous for meat and poultry products. According to
the trade association, many meat and poultry products are currently
labeled with ``Use or Freeze By'' labels to provide consumers with
clear direction and offer an alternative to disposal. The trade
association was concerned that consumers would not understand that
products with ``Best if Used By'' labels may be frozen to extend their
    Response: FSIS recognizes that because food product labels are
small it is important to convey information clearly and concisely.
However, FSIS disagrees that ``Best if Used By'' is too short or too
vague. The national survey mentioned above found that 70 percent of
adults surveyed understood that ``Best if Used By'' was an indicator of
food quality. Based on the survey results, FSIS believes that the
phrase ``Best if Used By'' is clear and effective. And, while FSIS
still recommends that companies use ``Best if Used By,'' the Agency has
added ``Freeze By'' to the list of commonly used labeling phrases in
the fact sheet to provide more information to consumers on what the
label means.
    Comment: A trade association representing the meat industry stated
that shelf-life in ready-to-eat (RTE) products is often based on
controlling Listeria monocytogenes (Lm), not organoleptic concerns.
According to the commenter, the meat and poultry industry often applies
a ``Use By'' date to ensure refrigerated RTE product safety. Therefore,
the commenter argued, consumers should not be told that it is safe to
consume refrigerated RTE meat and poultry products after the ``Use By''
date. The commenter argued that a distinction should be made between a
``Best if Used By'' date, where the product may be consumed after the
date if there are no signs of spoilage, and a ``Use By'' date, where
product should not be consumed after the date even if there are no
signs of spoilage.
    Response: FSIS disagrees with the comment. While some
establishments may use date labeling to manage safety of refrigerated
RTE meat and poultry products--not all establishments do. Only
establishments producing products with an antimicrobial agent or
process must establish the shelf-life of the product in order to
document, either in their HACCP plan, Sanitation Standard Operating
Procedures, or prerequisite program, that their antimicrobial agent or
process is effective in suppressing or limiting growth of Lm (see 9 CFR
430.4(b)(1) and (2)). In addition, for those products, FSIS recommends
but does not require ``Use By'' dating on labels.\8\

    \8\ See Controlling Listeria monocytogenes in Post-lethality
Exposed Ready-to-Eat Meat and Poultry Products at https://www.fsis.usda.gov/wps/wcm/connect/d3373299-50e6-47d6-a577-e74a1e549fde/Controlling-Lm-RTE-Guideline.pdf?MOD=AJPERES.

    Comment: One consumer was confused by the statement that except for
infant formula, product dating is not required by Federal regulations.
The consumer questioned how this statement could be true if FSIS
requires certain products to be labeled with a ``pack date.''
    Response: As mentioned above, FSIS added a footnote to the fact
sheet to clarify that while FSIS does not require date labeling for
food quality or food safety, FSIS does require a ``pack date'' for
poultry products and thermally processed, commercially sterile products
to help the Agency identify product lots and facilitate trace-back
activities in the event of an outbreak of foodborne illness.\9\

    \9\ See 9 CFR 381.126 and 9 CFR 431.2(e).

    Comments: Several commenters stated that FSIS could do more to
ensure that safe, wholesome food is not wasted by providing consumer
education about the meaning of date labels.
    Response: Now that the fact sheet is finalized, FSIS intends to
include more information about food product dating in the Agency's
presentations and webinars on labeling and labeling features.

Additional Public Notification

    Public awareness of all segments of rulemaking and policy
development is important. Consequently, FSIS will announce this Federal
Register publication on-line through the FSIS web page located at:
    FSIS will also announce and provide a link to it through the FSIS
Constituent Update, which is used to provide information regarding FSIS
policies, procedures, regulations, Federal Register notices, FSIS
public meetings, and other types of information that could affect or
would be of interest to our constituents and stakeholders. The
Constituent Update is available on the FSIS web page. Through the web
page, FSIS is able to provide information to a much broader, more
diverse audience. In addition, FSIS offers an email subscription
service which provides automatic and customized access to selected food
safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe.
Options range from recalls to export
information, regulations, directives, and notices. Customers can add or
delete subscriptions themselves and have the option to password protect
their accounts.

USDA Nondiscrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds
of race, color, national origin, religion, sex, gender identity, sexual
orientation, disability, age, marital status, family/parental status,
income derived from a public assistance program, or political beliefs,
exclude from participation in, deny the benefits of, or subject to
discrimination, any person in the United States under any program or
activity conducted by the USDA.

How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program
Discrimination Complaint Form, which may be accessed online at:
or write a letter signed by you or your
authorized representative.
    Send your completed complaint form or letter to USDA by mail, fax,
or email:
    Mail: U.S. Department of Agriculture, Director, Office of
Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410.
    Fax: (202) 690-7442.
    Email: [email protected].
    Persons with disabilities who require alternative means for
communication (Braille, large print, audiotape, etc.) should contact
USDA's TARGET Center at (202) 720-2600 (voice and TDD).

Carmen M. Rottenberg,
[FR Doc. 2019-06988 Filed 4-8-19; 8:45 am]