[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
FOOD WASTE FROM FIELD TO TABLE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
MAY 25, 2016
__________
Serial No. 114-52
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Agriculture
agriculture.house.gov
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COMMITTEE ON AGRICULTURE
K. MICHAEL CONAWAY, Texas, Chairman
RANDY NEUGEBAUER, Texas, COLLIN C. PETERSON, Minnesota,
Vice Chairman Ranking Minority Member
BOB GOODLATTE, Virginia DAVID SCOTT, Georgia
FRANK D. LUCAS, Oklahoma JIM COSTA, California
STEVE KING, Iowa TIMOTHY J. WALZ, Minnesota
MIKE ROGERS, Alabama MARCIA L. FUDGE, Ohio
GLENN THOMPSON, Pennsylvania JAMES P. McGOVERN, Massachusetts
BOB GIBBS, Ohio SUZAN K. DelBENE, Washington
AUSTIN SCOTT, Georgia FILEMON VELA, Texas
ERIC A. ``RICK'' CRAWFORD, Arkansas MICHELLE LUJAN GRISHAM, New Mexico
SCOTT DesJARLAIS, Tennessee ANN M. KUSTER, New Hampshire
CHRISTOPHER P. GIBSON, New York RICHARD M. NOLAN, Minnesota
VICKY HARTZLER, Missouri CHERI BUSTOS, Illinois
DAN BENISHEK, Michigan SEAN PATRICK MALONEY, New York
JEFF DENHAM, California ANN KIRKPATRICK, Arizona
DOUG LaMALFA, California PETE AGUILAR, California
RODNEY DAVIS, Illinois STACEY E. PLASKETT, Virgin Islands
TED S. YOHO, Florida ALMA S. ADAMS, North Carolina
JACKIE WALORSKI, Indiana GWEN GRAHAM, Florida
RICK W. ALLEN, Georgia BRAD ASHFORD, Nebraska
MIKE BOST, Illinois
DAVID ROUZER, North Carolina
RALPH LEE ABRAHAM, Louisiana
JOHN R. MOOLENAAR, Michigan
DAN NEWHOUSE, Washington
TRENT KELLY, Mississippi
______
Scott C. Graves, Staff Director
Robert L. Larew, Minority Staff Director
(ii)
C O N T E N T S
----------
Page
Conaway, Hon. K. Michael, a Representative in Congress from
Texas, opening statement....................................... 1
Prepared statement........................................... 3
Peterson, Hon. Collin C., a Representative in Congress from
Minnesota, opening statement................................... 6
Witnesses
Pingree, Hon. Chellie, a Representative in Congress from Maine... 7
Prepared statement........................................... 9
Gunders, Dana, Senior Scientist, Food and Agriculture Program,
Natural Resources Defense Council, San Francisco, CA........... 10
Prepared statement........................................... 12
Fink, Jesse M., Managing Director, MissionPoint Partners LLC,
Norwalk, CT; on behalf of ReFED: Rethink Food Waste Through
Economics and Data............................................. 17
Prepared statement........................................... 19
Oxford, John, President and Chief Executive Officer, L&M
Companies; Chairman-elect, Produce Marketing Association,
Raleigh, NC.................................................... 33
Prepared statement........................................... 35
Stasz, Meghan B., Senior Director, Sustainability, Grocery
Manufacturers Association, Washington, D.C.; on behalf of Food
Waste Reduction Alliance....................................... 41
Prepared statement........................................... 43
Aviv, Diana, Chief Executive Officer, Feeding America, Chicago,
IL............................................................. 48
Prepared statement........................................... 50
Broad Leib, J.D., Emily M., Assistant Clinical Professor of Law
and Director, Food Law and Policy Clinic, Harvard Law School,
Jamaica Plain, MA.............................................. 54
Prepared statement........................................... 56
Submitted question........................................... 156
Submitted Material
Budway, Robert, President, Can Manufacturers Institute, submitted
letter......................................................... 153
Vroom, Jay, President and Chief Executive Officer, CropLife
America, submitted statement................................... 154
FOOD WASTE FROM FIELD TO TABLE
----------
WEDNESDAY, MAY 25, 2016
House of Representatives,
Committee on Agriculture,
Washington, D.C.
The Committee met, pursuant to call, at 10:00 a.m., in Room
1300 of the Longworth House Office Building, Hon. K. Michael
Conaway [Chairman of the Committee] presiding.
Members present: Representatives Conaway, Crawford, Gibson,
Yoho, Rouzer, Abraham, Moolenaar, Kelly, Peterson, David Scott
of Georgia, Walz, Fudge, McGovern, DelBene, Vela, Lujan
Grisham, Kuster, Kirkpatrick, Plaskett, Adams, Graham, and
Ashford.
Staff present: Haley Graves, Jadi Chapman, John Goldberg,
Mary Nowak, Scott C. Graves, Faisal Siddiqui, John Konya, Anne
Simmons, Lisa Shelton, Mary Knigge, Matthew MacKenzie, Nicole
Scott, and Carly Reedholm.
OPENING STATEMENT OF HON. K. MICHAEL CONAWAY, A REPRESENTATIVE
IN CONGRESS FROM TEXAS
The Chairman. This hearing of the Committee on Agriculture
entitled, Food Waste from Field to Table, will come to order.
I would ask David Scott to open us with a prayer. David.
Mr. David Scott of Georgia. Dear Heavenly Father, we come
before your throne of grace to first of all give thanks. We
thank you for so many blessings you bestow upon us; blessings
sometimes we do not even know. We thank you for your Holy
Spirit that intercedes for us on our behalf. We thank you, dear
Heavenly Father, for this hearing, for what could be more
important than the food that we get on the table for needy
people. And in this case, dear Heavenly Father, as we discuss
the issue of food waste, we hope that you will implant within
this Committee our resolve to do as much as we can to eliminate
the food waste, to help our farmers be able to have the labor
to get food out of the fields and into the hands and at the
tables of those people who need it most. Dear Heavenly Father,
we ask this in your name, and in the name of your son, Jesus
Christ. Amen.
The Chairman. Amen. Thank you, David.
Well, good morning. Since I became Chairman of the House
Agriculture at the beginning of last year, we have held more
than 70 hearings and have invited a broad range of experts,
including people in the field, to share their knowledge of
everything from the futures markets to the farmers' markets.
The Committee doesn't agree all the time on every issue,
but one of the reasons we are able to work in a bipartisan
manner is that we remember well-meaning people can have
different ideas about how to achieve the same goal, whatever
the issue may be. Because we have a different way of getting
there doesn't mean one of us is wrong, and this is something we
lose sight of in America today. Good public policy is not a
zero-sum game. If advocates, Members, whoever it may be, are
close-minded and unopened to compromise, it all but ensures
retention of the status quo regardless of the issue.
An example of where we are engaging a variety of
stakeholders is in this review of food waste. I commend my
colleague from Maine, Chellie Pingree, for putting this on the
Congressional radar. Today's hearing may be the first time the
House Agriculture Committee is publicly engaging on this issue,
but it will not be our last.
Forty percent of the food grown in the country is wasted.
That amounts to 133 billion pounds of food wasted. That is
billion with a B. Considering we have about 45 million people
receiving assistance through SNAP, I believe this is a
tremendous opportunity for us to take a closer look at our food
chain, and figure out a way to ensure that food grown in this
country reaches the dinner table and not the trashcan.
Speaking 2 weeks ago at a food waste summit, Secretary
Vilsack commented that avoiding food waste loss could save U.S.
families on average $1,500 a year, and limiting food waste
globally could help prevent hunger and malnourishment in the
825 to 850 million people worldwide who are not getting
adequate food.
Tackling food waste in this country is, and should be a
nonpartisan issue that will be most successful by engaging
everyone in the food chain, from the field to the table. It
will take the collaboration of all stakeholders to be
successful.
As we begin this review, we will undoubtedly identify
issues that seem easy to resolve, yet are more complex than
they appear. We will likewise identify other issues that have
already been addressed, but simply require collaboration and
what amounts to a public relations campaign to raise awareness.
Two such issues that Congress has acted upon that we should
highlight today are the recently enacted permanent tax
deduction for food donations and the Good Samaritan Food
Donation Act. The permanent tax deduction for food donations
was identified in recent legislation and was enacted as part of
the last omnibus.
The second issue is one we hear an awful lot about, yet was
addressed years ago by our former colleague and a Vice Chairman
of the Committee, the late Bill Emerson. Many businesses, when
given the opportunity to donate perfectly safe and wholesome
food, are reluctant because of liability concerns. The Bill
Emerson Good Samaritan Food Donation Act, enacted in 1996,
fully addresses this concern. I wish to place into the record a
Memorandum of Opinion drafted by the Department of Justice for
USDA General Counsel that not only spells out the direct
protection of the Emerson Act, but also describes the
preemptive effect on state laws that may not provide the same
level of protection.
When we began preparing for this hearing, we reached out to
Representative Pingree, whom I am happy is here with us today
and will shortly offer her introductory comments of her own.
The witnesses that were invited represent a broad range of
perspectives and expertise, but in no way represent the
entirety of the community that is addressing this challenge.
While this hearing is just one element of our review, we will
also invite Members and staff, as well as other interested
stakeholders, to attend an event later this afternoon here in
this hearing room on the balcony to see what some of the
organizations are doing to address food waste. That event will
begin at approximately 1:30 today.
[The prepared statement of Mr. Conaway follows:]
Prepared Statement of Hon. K. Michael Conaway, a Representative in
Congress from Texas
Since I became Chairman of the House Agriculture Committee at the
beginning of last year, we've held more than 70 hearings and have
invited a broad range of experts, including people in the field, to
share their knowledge on everything from the futures markets to
farmers' markets.
The Committee doesn't agree all the time on every issue, but one of
the reasons we're able to work in a bipartisan manner is that we
remember well-meaning people can have different ideas about how to
achieve the same goal, whatever the issue may be. Because we have a
different way of getting there doesn't mean one of us is wrong--and
this is something we're losing sight of in America today. Good public
policy is not a zero-sum game. If advocates, Members, whoever it may be
are close-minded and unopened to compromise, it all but ensures
retention of the status quo regardless of the issue.
An example of where we are engaging a variety of stakeholders is in
this review of food waste. I commend my colleague from Maine, Chellie
Pingree, for putting this on the Congressional radar. Today's hearing
may be the first time the House Agriculture Committee is publicly
engaging on this issue, but it will not be the last.
Forty percent of the food grown in this country is wasted. That
amounts to 133 billion pounds of food being wasted. That is billion
with a B! Considering we have 45 million people currently receiving
food assistance through SNAP, I believe this is a tremendous
opportunity for us to take a closer look at our food chain and figure
out a way to ensure that food grown in this country reaches the dinner
table, not the trashcan.
Speaking 2 weeks ago at a food waste summit, Secretary Vilsack
commented that avoiding food waste loss could save U.S. families on
average $1,500 a year, and limiting food waste globally could help
prevent hunger and malnourishment in the 825 million to 850 million
people worldwide who are not getting adequate food.
Tackling food waste in this country is, and should be a nonpartisan
issue that will be most successful by engaging everyone in the food
chain, from field to table. It will take the collaboration of all
stakeholders to be successful.
As we begin this review, we will undoubtedly identify issues that
seem easy to resolve, yet are more complex than they appear. We will
likewise identify other issues that have already been addressed, but
simply require collaboration and what amounts to a public relations
campaign to raise awareness.
Two such issues that Congress has acted upon that we should
highlight today are the recently enacted permanent tax deduction for
food donations and the Good Samaritan Food Donation Act. The permanent
tax deduction for food donations was identified in recent legislation
and was enacted as part of the last omnibus.
The second issue is one we hear an awful lot about, yet was
addressed years ago by our former colleague and a Vice Chairman of this
Committee, the late Bill Emerson. Many businesses, when given the
opportunity to donate perfectly safe and wholesome food, are reluctant
because of liability concerns. The Bill Emerson Good Samaritan Food
Donation Act, enacted in 1996 fully addresses this concern. I wish to
place into the record a Memorandum Opinion drafted by the Department of
Justice for the USDA General Counsel that not only spells out the
direct protection of the Emerson Act, but also describes the preemptive
effect on state laws that may not provide the same level of protection.
When we began preparing for this hearing, we reached out to
Representative Pingree whom I am happy is here with us today and will
shortly offer some introductory comments of her own.
The witnesses that were invited represent a broad range of
perspectives and expertise, but in no way represent the entirety of the
community that is addressing this challenge. While this hearing is just
one element of our review, we will also invite Members and staff, as
well as other interested stakeholders to attend an event later this
afternoon here in this hearing room on the balcony to see firsthand
what some organizations are doing to address food waste. That event
will begin at approximately 1:30 this afternoon.
I will now recognize our Ranking Member, Rep. Peterson, for his
opening remarks.
Attachment
Preemptive Effect of the Bill Emerson Good Samaritan Food Donation Act
The Bill Emerson Good Samaritan Food Donation Act (``Act'')
preempts state ``good Samaritan'' statutes that provide less protection
than the Act from civil and criminal liability arising from food
donated in good faith for distribution to the needy than the Act
provides.
March 10, 1997
Memorandum Opinion for General Counsel, Department of Agriculture
You have requested our views on the question whether the Bill
Emerson Good Samaritan Food Donation Act (the ``Act''), Pub. L. No.
104-210, 110 Stat. 3011 (1996) codified as amended at 42 U.S.C. 1791
(Supp. II 1996), preempts state statutes that provide less protection
from civil and criminal liability arising from food donated in good
faith for distribution to the needy. We believe that Congress intended
to establish a minimum level of immunity for those engaged in food
donation and distribution. Accordingly, we believe that Congress
intended to preempt state ``good Samaritan'' statutes that provide less
liability protection than the Act.
I.
In order to ``encourage the donation of food and grocery products
to nonprofit organizations for distribution to needy individuals,'' the
Bill Emerson Good Samaritan Food Donation Act precludes civil and
criminal liability arising from food donated in good faith, except in
cases of gross negligence or intentional misconduct. 42 U.S.C. 1791
[Pub. L. No. 104-210, 110 Stat. at 3011]. It amended and converted to
affirmative law the Model Good Samaritan Food Donation Act (the ``Model
Act''), 42 U.S.C. 12671-12673 (1994), which has been enacted in 1990
to provide states with model language for revising their existing good
Samaritan laws.\1\ The current Act provides:
---------------------------------------------------------------------------
\1\ Every state and the District of Columbia prior to 1990 had
enacted some form of statutory protection from liability for food
donation and distribution. See H.R. Rep. No. 104-661, at 2-3 (1996)
(citing ``Summary of Good Samaritan Food Donation Statutes'' prepared
by Winthrop, Stimson, Putnam and Roberts in 1992 for ``Share Our
Strength,'' a nonprofit hunger relief organization). These statutes are
exceptions to the common law or statutory rule of strict liability for
distributing food or any other defective product, the defective aspect
of which causes injury. Id. The statutes vary considerably, however.
Some provide liability only for gross negligence or intentional acts,
while other impose liability for negligence. Still others limit
liability if the donor reasonably inspects the food at the time of
donation and has no actual or constructive knowledge of any defective
condition. Only one state has adopted the language in the Model Act.
Id.
(1) Liability of person or gleaner.--A person or gleaner
shall not be subject to civil or criminal liability arising
from the nature, age, packaging, or condition of apparently
wholesome food or an apparently fit grocery product that the
person or gleaner donates in good faith to a nonprofit
organization for ultimate distribution to needy individuals.
(2) Liability of nonprofit organization.--A nonprofit
organization shall not be subject to civil or criminal
liability arising from the nature, age, packaging, or condition
of apparently wholesome food or an apparently fit grocery
product that the nonprofit organization received as a donation
in good faith from a person or gleaner for ultimate
distribution to needy individuals.
(3) Exception.--Paragraphs (1) and (2) shall not apply to an
injury to or death of an ultimate user or recipient of the food
or grocery product that results from an act or omission of the
person, gleaner, or nonprofit organization, as applicable,
constituting gross negligence or intentional misconduct.
42 U.S.C. 1791(c) [110 Stat. at 3011-12].\2\
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\2\ The Act defines a ``gleaner'' as ``a person who harvests for
free distribution to the needy, or for donation to a nonprofit
organization for ultimate distribution to the needy, an agricultural
crop that has been donated by the owner.'' 42 U.S.C. 1791(b)(5) [
12672(b)(5)].
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II.
As the Supreme Court has observed, preemption is fundamentally a
question of Congressional intent. See Medtronic, Inc. v. Lohr, 518 U.S.
470, 485 [116 S. Ct. 2240, 2250] (1996) (``[t]he purpose of Congress is
the ultimate touchstone in every pre-emption case'') (quoting Retail
Clerks Int'l Ass'n v. Schermerhorn, 375 U.S. 96, 103 (1963)). In
assessing Congressional intent, the Court has ``long presumed that
Congress does not cavalierly pre-empt state-law causes of action.'' Id.
In cases where ``Congress has `legislated . . . in a field which the
states have traditionally occupied.' '' the Court `` `start[s] with the
assumption that the historic police powers of the states were not to be
superseded by the Federal Act unless that was the clear and manifest
purpose of Congress.' '' Id. (quoting Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947)). It is with this admonition in mind that we
examine the preemptive effect of the Act.
The Supreme Court has identified three ways in which a Federal law
may preempt state law.\3\ First, Congress may preempt state law
explicitly in the text of its statute. See English v. General Elec.
Co., 496 U.S. 72, 78 (1990).\4\ Second, Congress may preempt state laws
implicitly by demonstrating an intent to occupy the field exclusively
with Federal regulation. See Rice, 331 U.S. at 230. Finally, even where
Congress permits concurrent state regulation in a field, such
regulation is preempted to the extent it actually conflicts with
Federal law. The Supreme Court has found an actual conflict where
``compliance with both Federal and state regulations is a physical
impossibility for one engaged in interstate commerce,'' Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1962), or where
state law ``stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.'' Hines v. Davidowitz,
312 U.S. 52, 67 (1941).
---------------------------------------------------------------------------
\3\ See generally Freightliner Corp. v. Myrick, 514 U.S. 280, 287
[115 S. Ct. 1483, 1487] (1995); Cipollone v. Liggett Group, Inc., 505
U.S. 504, 516-17 (1992).
\4\ For example, to expressly preempt state regulation on a
particular subject, Congress may provide that ``[n]o state or political
subdivision of a state may establish or continue in effect . . . any
requirement--(1) which is different from or in addition to, any
requirement applicable under [Federal law] . . . and (2) which relates
. . . to any other matter included in a requirement applicable . . .
under [Federal law].'' 21 U.S.C. 360k(a) (1994) (Federal Food, Drug,
and Cosmetic Act, as amended by the Medical Device Amendments); see
also 29 U.S.C. 1144(a) (1994) (provision in ERISA preempting ``any
and all state laws insofar as they may now or hereafter relate to any
employee benefit plan''). Congress instead may limit the extent to
which states may regulate, by providing for example that ``[a] state
may adopt or continue in force any law, rule, regulation, order, or
standard relating to railroad safety until such time as the Secretary
has adopted a rule, regulation, order, or standard covering the subject
matter of such state requirement.'' Federal Railroad Safety Act 45
U.S.C. 434, repealed by Act of July 5, 1994, Pub. L. No. 103-272
7(b), 108 Stat. 1379.
---------------------------------------------------------------------------
Although the Act contains no express preemption clause, its purpose
is to supersede, at least to a certain extent, state good Samaritan
statutes. Thus, the question is to what extent it supersedes those
statutes. We believe the Act clearly preempts state good Samaritan
statutes to the extent they provide less liability protection than
Federal law--for example, to the extent they permit liability based on
evidence of negligence--because such laws literally would ``stand[] as
an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress.'' Hines, 312 U.S. at 67. As stated above,
the express purpose of the Act is to ``encourage the donation of food
and grocery products to nonprofit organizations for distribution to
needy individuals'' by limiting liability for such activities. Unless
potential donors and distributors are assured that the Act sets an
absolute liability ceiling, they will continue to be deterred by the
threat of liability under state law and will not be encouraged by the
Act to donate food. Thus, to have any effect at all, the Act must
preempt state statutes that provide less liability protection.
The legislative history of the Act confirms this interpretation. As
Representative Danner explained when introducing the bill in the House,
the current patchwork of state laws has been cited by many
potential donors as the principal reason so much food is thrown
away rather than given to food banks and food pantries for
distribution to the hungry. . . .
Simply put, we need a reasonable nationwide law that
eliminates confusion and forges a stronger alliance between the
public and private sectors in this nation. That is exactly what
this bill delivers. The [Act] will establish a uniform national
law to protect organizations and individuals when they donate
food in good faith.
A business should not have to hire a legal team to interpret
numerous state laws so that it feels comfortable in
contributing food to the hungry.
142 Cong. Rec. 17,066 (1996) [H7479 (daily ed. July 12, 1996)].
The remarks of other Members of Congress also demonstrated an
intent to preempt those state good Samaritan statutes that conflict
with the Federal standard. See e.g., H.R. Rep. No. 104-661, at 7 (1996)
(``The bill would preempt civil and criminal liability laws of state
and local governments that deal with the donation of food and grocery
products to nonprofit organizations.''); 142 Cong. Rec. 21,516 (1996)
[S9532 (daily ed. Aug. 2, 1996)] (statement of Sen. Kennedy)
(acknowledging that the Act would ``diminish the protections afforded
by the tort laws''). Indeed, Representative Conyers expressed concern
about the intended preemptive effect of the Act:
Although I am supportive of the impetus behind the
legislation--encouraging private entities to donate food to
nonprofit organizations who distribute food to the needy--I
question whether preempting traditional state law prerogatives
in this area is desirable . . . . [A]ll 50 states have enacted
special statutory rights concerning food donations. Not
surprisingly, the states have crafted a variety of liability
rules--ranging from those who subject all negligent parties to
liability, to those who limit liability only to grossly
negligent or intentional acts.
Unfortunately, with the adoption of this bill, the House will
be seeking to impose a one-size-fits-all legal standard for
food donors . . . .
142 Cong. Rec. 17,067 (1996) [H7480 (daily ed. July 12, 1996)].
President Clinton also apparently believed that the Act would
preempt conflicting state laws. In his signing statement the President
observed:
In working with various private sector donors and food banks
. . . it has come to light that liability concerns are often an
impediment to food recovery and donation efforts. Although many
states have enacted their own ``Good Samaritan'' laws to
support food recovery and donation efforts, many businesses
have advised that these varying state statutes hinder food
donations. This legislation will end the confusion regarding
liability for food recovery and donation operations through
uniform definitions in one national law.
2 Pub. Papers of William J. Clinton 1737, 1737-38 (1996) [32 Weekly
Comp. Pres. Doc. 1943 (Oct. 1, 1996)].
We believe that the legislative history of the Act, together with
its express purpose and the context in which it was enacted, indicate
that Congress intended to establish a ``uniform national law'' that
displaces conflicting state good Samaritan statutes--i.e., those that
provide less liability protection than Federal law. There is an
argument that Congress intended to go even further, preempting not only
less protective state statutes but all state good Samaritan laws.
Although we acknowledge that some parts of the legislative history
could be read to support this argument, we find insufficient evidence
that Congress intended to preempt the field. ``Field preemption'' does
not seem necessary to achieve the Congressional goals underlying the
Act. The Act should have the desired effect of encouraging food
donation as long as it assures potential donors that they will not
incur liability for conduct above a certain national level of
culpability. The existence of state standards that provide even greater
protection from liability should not deter food donation; indeed, they
may further promote it. Furthermore, as noted above, the Supreme Court
is reluctant to construe preemption broadly in areas traditionally
regulated by the states.\5\ For these reasons, we decline to interpret
the Act to preempt all state good Samaritan statutes. Rather, we
construe the Act to preempt only those state good Samaritan statutes
that furnish less liability protection than Federal law.
---------------------------------------------------------------------------
\5\ See Medtronic, Inc., 518 U.S. at 485 [116 S. Ct. at 2250];
Rice, 331 U.S. at 230.
Dawn E. Johnsen,
Acting Assistant Attorney General, Office of Legal Counsel.
The Chairman. I will now recognize our Ranking Member, Mr.
Peterson, for any opening remarks that he may have.
OPENING STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE
IN CONGRESS FROM MINNESOTA
Mr. Peterson. Thank you, Mr. Chairman. And welcome to
today's witnesses. And, Congresswoman Pingree, I appreciate
your leadership on this issue. Welcome to the Committee.
I am probably not the only one who finds the terms sell by
and best by confusing. This confusion leads to a lot of food
waste that we see in this country, and I am glad that we are
looking at this issue today.
American consumers are increasingly less connected to the
farm and to where food comes from. And a lot of people no
longer view food as valuable. When I was growing up, my mom
used every part of the animal, but that is no longer the case,
and food waste has increased.
Producers have done such a good job of creating an abundant
food supply that a lot of folks don't think twice about tossing
out food that may not look perfect, or has surpassed a best by
or sell by date stamped on the box, whatever that means. This
is a challenge, but I also think it presents a great
opportunity for production agriculture. While many have no
problem throwing food away, many Americans are still struggling
to feed their families.
There is a role for farmers and ranchers to play in this,
and they can and should step up to the plate and help meet
these needs.
Again, I am happy that we are beginning to explore this
issue, and look forward to a constructive conversation. This is
an area that we can work across party lines and forge a diverse
coalition to tackle food waste in this country. I look forward
to the testimony. And I yield back.
The Chairman. I thank the gentleman.
The chair would request that other Members submit their
opening statements for the record so that our witnesses may
begin their testimony, and to ensure there is ample time for
questions.
I would like to welcome our first panel to the witness
table. The Honorable Chellie Pingree, Congresswoman from the
great State of Maine. Ms. Pingree, you can begin when you are
ready.
STATEMENT OF HON. CHELLIE PINGREE, A REPRESENTATIVE IN CONGRESS
FROM MAINE
Ms. Pingree. Well, thank you very much, Chairman Conaway,
and Ranking Member Peterson. I really appreciate that you are
holding this hearing today and giving me the opportunity to say
a few words about it. And I particularly appreciate that you
remembered to call it the great State of Maine.
Obviously, this is an issue that people have been
increasingly concerned about. And I have been very grateful to
have a chance to work on it, and as all of you said, work
across the aisle and with a whole diverse group of interests
that are concerned about the fact that 40 percent of the food,
as you mentioned, is wasted in this country. Particularly
people on the Agriculture Committee know how much work goes
into growing food, how much water is lost in the process of
growing food, how long it has to be transported around the
country, and just that gives you a sense of how much we are
wasting, besides the food, in terms of energy and other
resources in doing this.
The other big concern is that we do have 50 million people
in this country going hungry. And when there is confusion
around date labeling or how food can be disposed of, with the
good Samaritan laws that we have talked about, it just makes it
that much more difficult for restaurants and retail stores to
find out how to make sure that uneaten food and beyond-the-
label food gets to those food banks and to those people in
need. So that is part of what we are proposing to look at in
the bill that we submitted called the Food Recovery Act.
It is wonderful to see that the USDA and the EPA together
have announced a food waste reduction goal. They did that last
year. And their goal is to reduce food waste by 50 percent by
the year 2030. So I have an ambitious goal, but also showing
that there are great opportunities there.
I am fortunate enough to serve on the Agricultural
Appropriations Subcommittee, so we have been looking for ways
to work with them on funding areas that could make a difference
in solving this problem, and also work on some of the same
things with the FDA.
There is certainly no single way to go about solving this
problem, and I know as you dig deeper into it today and you
hear from the wonderful panel that you have chosen, you will
start to hear that it is something we have to face on all
fronts; from helping consumers to understand differently,
giving opportunities to farmers who want to make sure food gets
into the right hands, and helping retailers in particular and
restaurant owners to reduce that waste, or to make sure it goes
to the places that we want.
In my own state, we have a supermarket chain that is also
committed to zero food waste, which means making sure
everything gets sold in the store that possibly can, even if
some of it looks a little ugly or misshapen, then making sure
it gets to food banks and places where people are in need, and
finally making sure that food that can't go anywhere else,
either goes to a composting facility or an anaerobic digester,
because that is another big issue here is most food waste ends
up in municipal landfills. And for those of you who have served
on municipal government, you know that is one of the increasing
costs. It also produces methane gas which is much more toxic
than many of the other gases that we already worry about.
Whereas, if it is converted to compost or anaerobic digestion,
we are either left with wonderful looking soil, or we are
producing energy with that food waste.
Making sure that there are Federal funds available to
municipalities who want to do that is another part of this, and
something that can certainly be dealt with in a variety of
committees.
Just in closing, I want to mention the one thing that
Ranking Member Peterson and I were just talking about, and I am
sure all of you on the Committee, and most of us have
experienced this problem, perhaps in your own household, where
you look at a package, it has a label on it, and think, okay,
well, this is probably still good, we should eat it. Yet
someone else in your household looks at it and says, ``Oh, no,
no, look at that date, we have to throw it away.'' We actually
submitted a bill last week with Senator Blumenthal about date
labeling to try to bring some sensibility into this. And
because we hear so much about the domestic disagreements that
go on, we thought we should call this the Domestic Harmony
Bill, to reduce some of those issues that people face. But
basically, manufacturers have joined us, we were endorsed in
that bill by Campbell Soup and Nestle, and a variety of other
companies have already come forward because they find it
confusing too.
Basically, those labels, for the most part, don't have a
uniform or scientific basis. They may represent something to
that individual company, but it really doesn't mean you can't
eat that food. So our idea is to ask the USDA and the FDA to
work together to create a label, one that says expires on, for
those foods that really do have a safety issue, and you should
know when it is too late to eat it. And the other one would
just say best if used by. So that tells you that that bag of
crackers will be best if you eat it by a certain date, but
nothing is going to happen to you if you eat it a month later,
or maybe even the next season when you return to your summer
cabin, or you find it in a box that you never unpacked. Chances
are, that is going to be perfectly good food. So we would like
to bring some sensibility to that. It would be great for
manufacturers, it would take some of the stigma out of how that
food gets donated. And, in fact, there are 20 states around the
country that prohibit food donations if that date has passed.
And if you think about it, we are keeping 20 states away from
giving that food to people in need, and it is a completely
arbitrary date.
So it seems like that is one of the ones that would be
extremely cost-effective. It would create much less waste,
something that most of us agree on, and you will find most of
the manufacturers and others agree on it as well.
So thank you very much for giving me a moment to open this
up today. Thank you for taking on this topic. I look forward to
working with you in any way I can. And thank you for giving me
a little bit of nostalgia to return to the Committee which I
served on in my early days. I truly enjoyed working with all of
you and being in this room.
[The prepared statement of Ms. Pingree follows:]
Prepared Statement of Hon. Chellie Pingree, a Representative in
Congress from Maine
I would like to thank Chairman Conaway, Ranking Member Peterson,
and Members of the House Committee on Agriculture for holding a hearing
on food waste and for inviting me to speak today. As a former Member of
the Committee, I am excited to kick off this food waste hearing and
discuss why food waste is such a pressing issue.
On one hand, this is a problem that has been getting worse and
worse, but has gone largely unnoticed. When I tell people that 40
percent of the food that is produced in this country is wasted, they
are usually shocked. As Members of this Committee, you are all aware of
the incredible amount of resources and hard work that food production
requires. I think you'll agree it's unconscionable that so much food
ends up in landfills.
But on the other hand, it's a problem that we've known about at
some level for a long time. Doesn't everyone remember your grandmother
telling you to clean your plate, and to not waste food?
When good food goes to waste on the farm, it means the resources
used to grow that food--fuel, labor and water--are also wasted. When
food goes to waste in a local restaurant, it means less revenue for the
owner. And wherever and whenever food is wasted, it means less food for
the 50 million Americans that are food-insecure.
Recognizing the extent of this problem, USDA and EPA announced the
first food waste reduction goal last year--a 50 percent reduction by
2030. As a Member of the Agricultural Appropriations Subcommittee, I
asked USDA and EPA leadership a lot of questions about food waste
during appropriations hearings this year to see what they already have
the authority to do. I look forward to continuing to work with these
Federal agencies, as well as the Food and Drug Administration, to
support a range of food waste reduction efforts.
There is no single solution to the problem of food waste. And not
all of the solutions will be simple or easy. But many--if not most--of
the solutions are common-sense proposals that should be things we can
all agree on.
Take date labeling, for example. I bet most of you have gotten into
an argument with someone at home about whether or not you should throw
away some food because the date on the label has passed. It's pretty
common. I think it must happen in almost every household in America.
And mostly those arguments come about because date labeling is
confusing and inconsistent. I introduced a bill last week that has a
pretty simple proposal: create two labels--one that says ``expires on''
for food that really is unsafe to eat after a certain date, and another
that says ``best if used by'' for everything else. The bill would also
make sure that no states or local health departments could ban the
donation of perfectly good food, just because the date on the label has
passed. This is just one way we can make sure food gets to those who
need it most.
Today you will hear from an impressive group of witnesses. As I was
getting ready to introduce a comprehensive food waste bill last year,
and a food date labeling bill last week, I have relied heavily on the
experts you are about to hear from. They have done the research and
collected the data to illustrate the extent of food waste in America,
and they have excellent proposals on the best ways to address these
problems.
Tackling the costly problem of food waste is something that we
really can work together on. I am thrilled about the momentum around
food waste, both from the private-sector and now here on Capitol Hill.
I want to again thank the Committee for helping to start this
conversation.
The Chairman. Well, thank you, ma'am, for being here. I
appreciate your comments this morning, and for your leadership
and getting this initiative started. And we will look forward
to pitching in with you, maybe we shouldn't say pitching in,
but nevertheless, helping with reduction of food waste. So
thank you for----
Ms. Pingree. Be careful about that baseball stuff.
The Chairman. I got you.
We will now transition to our second panel. Chellie, thank
you very much for being with us today. I appreciate it.
I would like to welcome our second panel of witnesses to
the table. We have Ms. Dana Gunders, Senior Scientist, Food and
Agriculture Program, Natural Resources Defense Council, San
Francisco, California. We have Mr. Jesse Fink who is the
Managing Director of Mission Point in Norwalk, Connecticut. We
have Mr. John Oxford, President and CEO, L&M Companies,
Raleigh, North Carolina. We have Ms. Meghan Stasz, Senior
Director, Sustainability, Grocery Manufacturers Association
here in Washington, D.C. Ms. Diana Aviv, CEO, Feeding America,
Chicago, Illinois. And Ms. Emily Broad Leib, the Director, Food
Law Policy Clinic, Harvard Law School, Jamaica Plain,
Massachusetts.
Everybody found their seats?
All right, Ms. Gunders, if you will begin when you are
ready, ma'am.
STATEMENT OF DANA GUNDERS, SENIOR SCIENTIST, FOOD AND
AGRICULTURE PROGRAM, NATURAL RESOURCES
DEFENSE COUNCIL, SAN FRANCISCO, CA
Ms. Gunders. Well thank you very much, Chairman Conaway,
Ranking Member Peterson, and Members of the Committee, thank
you for inviting me to testify today, and being willing to
explore this issue.
My name is Dana Gunders. I am a senior scientist at the
Natural Resources Defense Council. I am also the author of a
widely cited report on food waste, and a book called the Waste
Free Kitchen Handbook, which is a consumer guide to wasting
less food.
So imagine walking out of the grocery store with five bags
of groceries, dropping two in the parking lot, and not
bothering to pick them up. It seems crazy, but that is
essentially what we are doing today across the country where we
are wasting 40 percent of all of our food. We are leaving
entire fields unharvested, and eliminating produce solely for
its looks. We are serving massive portions, throwing out food
just because it has passed its sell-by date, and eating out
instead of what is in our fridge.
Now imagine a farm that covers \3/4\ of the State of
California, and uses as much water as California, Ohio, and
Texas combined. When you harvest that farm, it is enough food
to fill a tractor trailer every 20 seconds, and then it drives
all over the country, except instead of going to people to eat
it, it goes straight to the landfill. That is essentially what
we are doing today. In fact, food is the number one product
entering our landfills today.
This is expensive. All told, America spends up to $218
billion, or 1.3 percent of GDP, each year on wasted food.
Beyond money, we are wasting nutrition. More than 1,250
calories per capita every day. That is three times the caloric
requirements of the entire food-insecure population of the
country.
And we have not always been so wasteful. In the U.S., we
waste 50 percent more food per capita than we did in the 1970s.
This means that there was once a time when we wasted far less,
and, therefore, it gives me hope that we could get there again.
Wasting less food is to the food sector as energy
efficiency is to the energy sector. The cheapest, easiest way
to meet growing demand. The UN projects increased demand will
lead to a 60 percent growth in food production by 2050, and
almost \1/4\ of that projected demand could be offset by
addressing food waste.
There are far too many causes of food waste to address in
just a few short minutes, but it is important to note that
wasting food happens to the best of us, as individuals and
businesses. We have all had to toss moldy strawberries, or
clean out that science experiment in the back of our fridge.
And the good news is that unlike many of the thorny issues that
I am sure you deal with, this one feels solvable. No one wants
to waste food, and people strangely love diving into this
topic. I have been amazed at the energy and enthusiasm that
people have when they come up to me and tell me that they found
a way to use their wrinkled tomatoes in a sauce, or something
like that. And because there are direct savings to be had, this
enthusiasm has extended to the business and the entrepreneurial
communities as well. Even modest savings can make a difference.
I was asked to give an overview of the problem, but in my
last minute I would like to suggest at least a few solutions. I
would also like to note that the EPA has prioritized prevention
solutions and food donation over things like animal feed and
composting.
For solutions, first address consumer waste. From the
limited information we do have, households appear to be the
largest source of food waste. We recently launched a national
media campaign with the Ad Council to address this, called Save
the Food, with a goal of providing consumers both the
inspiration and information to waste less in their homes. If
the government were to embrace this campaign and provide
additional funding, it could vastly extend the reach and the
impact of the campaign.
Second, standardized food date labels, as we have already
heard. Because they misinterpret date labels, consumers are
unknowingly and unnecessarily tossing perfectly good food. And
other witnesses will address this.
Third, reduce waste within Federal Government agencies. How
much is the Federal Government spending to buy food that
ultimately never gets eaten? Addressing this could both reduce
agency costs, while also incubating model solutions that others
could follow.
Fourth, address data needs. Right now, there are some very
basic questions that we can't answer.
And last, support the Food Recovery Act, introduced by
Representative Pingree. It tackles food waste from a variety of
angles, and includes solutions for many of the issues discussed
in my written testimony.
Wasting less food is something everyone can get behind, and
in some cases, there is even money to be saved. I expect,
should you pursue solutions to this problem, you will find
there is a broad base of support behind you.
Thank you.
[The prepared statement of Ms. Gunders follows:]
Prepared Statement of Dana Gunders, Senior Scientist, Food and
Agriculture Program, Natural Resources Defense Council, San
Francisco, CA
Good morning, Chairman Conaway, Ranking Member Peterson, and
Members of the Committee. Thank you for inviting me to testify today.
My name is Dana Gunders, and I am a Senior Scientist at the Natural
Resources Defense Council where I lead our work on reducing the amount
of food that goes to waste across the country. I'm also the author of
the widely-quoted report on food waste, Wasted: How America is Losing
Up to 40 Percent of Its Food from Farm to Fork to Landfill as well as
the Waste Free Kitchen Handbook, a consumer guide to wasting less food.
Imagine walking out of the grocery store with five bags, dropping
two in the parking lot, and not bothering to pick them up. Seems crazy,
but that is essentially what is happening across the country today--40
percent of food in the United States today goes uneaten.\1\
---------------------------------------------------------------------------
\1\ K.D. Hall, J. Guo, M. Dore, C.C. Chow, National Institute of
Diabetes and Digestive and Kidney Diseases, ``The Progressive Increase
of Food Waste in America and Its Environmental Impact,'' PLoS ONE
4(11): e7940, 2009. The author confirmed his estimate in communication
in 2015. USDA estimates 31%, but that includes only losses at retail
and consumer levels. When the full supply chain is considered, the 31%
number by USDA essentially corroborates the 40% estimate.
---------------------------------------------------------------------------
We are leaving entire fields unharvested, eliminating produce
solely for its cosmetics, throwing out food just because its past or
even close to its ``sell-by'' date, inundating restaurant patrons with
massive portions, and eating out instead of using what's in our fridge.
Per capita, America wastes more than 1,250 calories every day and
35 pounds of food every month.\2\ As a country, this amounts to up to
$218 billion, or 1.3% of GDP,\3\ spent each year on wasted food. For a
family of four, this means at least $1500 spent annually on food they
never eat.\4\
---------------------------------------------------------------------------
\2\ Buzby, J., et al. ``The Estimated Amount, Value, and Calories
of Postharvest Food Losses at the Retail and Consumer Levels in the
United States'' USDA Economic Research Service Economic Information
Bulletin No. (EIB-121) 39 pp., February 2014 http://www.ers.usda.gov/
publications/eib-economic-information-bulletin/eib121.aspx.
\3\ ReFED, ``A Roadmap to Reduce U.S. Food Waste by 20 Percent.''
March 2016. www.refed.com. USDA estimates $161 billion but does not
include the full supply chain and uses 2010 food prices as opposed to
2015.
\4\ Buzby, J., et al. ``The Estimated Amount, Value, and Calories
of Postharvest Food Losses at the Retail and Consumer Levels in the
United States'' USDA Economic Research Service Economic Information
Bulletin No. (EIB-121) 39 pp., February 2014 http://www.ers.usda.gov/
publications/eib-economic-information-bulletin/eib121.aspx. ReFED's
analysis found it to be $1,800 annually for a household of four.
---------------------------------------------------------------------------
Beyond money, we are missing an opportunity to provide sustenance
and nutrition--just \1/3\ of the country's wasted food could provide
the caloric equivalent of the entire diet for the 48 million food-
insecure Americans, if only it could be distributed properly.\5\
---------------------------------------------------------------------------
\5\ A. Coleman-Jensen, et al. ``Household Food Security in the
United States in 2013'' USDA Economic Research Service, Economic
Research Report No. (ERR-173) 41 pp, September 2014. This source states
that just over 49 million individuals are food-insecure. It would take
32% of total losses and waste reported in Hall, et al., to provide
2,500 kcal/day to that many people, which would equate to a total diet.
Of course, distribution challenges would and quality of nutrition are
not considered in this back of envelope calculation.
---------------------------------------------------------------------------
Furthermore, we are investing tremendous amounts of resources on
this uneaten food. If all of our country's wasted food was grown in one
place, this mega-farm would cover roughly 80 million acres, over \3/4\
of the state of California. Growing the food on this wasteful farm
would consume all the water used in California, Texas, and Ohio
combined. The farm would harvest enough food to fill a 40 ton tractor
trailer every 20 seconds. Many of those trailers would travel thousands
of miles, distributing food to be kept cold in refrigerators and
grocery stores for weeks. But instead of being purchased, prepared, and
eaten, this perfectly good food would be loaded onto another line of
trucks and hauled to a landfill, where it would emit a harmful stream
of greenhouse gases as it decomposes.\6\
---------------------------------------------------------------------------
\6\ ReFED, ``A Roadmap to Reduce U.S. Food Waste by 20 Percent.''
March 2016. www.refed.com.
---------------------------------------------------------------------------
In fact, food is the number one contributor to landfills today,
more than any other material.
Globally, if food waste were a country, it would use more water
than any other country on the planet and rank third in greenhouse gas
footprint after China and the U.S.\7\ In America alone, the greenhouse
gas footprint is estimated to be equivalent to 33 million cars
annually.
---------------------------------------------------------------------------
\7\ United Nations Food and Agriculture Organization, ``Food
Wastage Footprint: Impacts on Natural Resources'' 2013. http://
www.fao.org/docrep/018/i3347e/i3347e.pdf.
---------------------------------------------------------------------------
There's a clear parallel between wasting less food and energy
efficiency. Both food and energy are resource intensive industries that
face increasing global demand as a result of population growth and
increasing standards of living. At some point, we realized the easiest,
cheapest way to meet growing demand for energy was to reduce it in the
first place. We are only now starting to realize the same approach is
merited for food. Without taking waste reduction into account, the
United Nations Food and Agriculture Organization projects that food
production will grow 60 percent by 2050 in order to match projected
demand.\8\ It's estimated almost \1/4\ of that projected demand could
be offset through halving the amount of food that goes to waste.\9\
---------------------------------------------------------------------------
\8\ United Nations Food and Agriculture Organization, ``World
Agriculture Towards 2030/2050, The 2012 Revision.'' 2012. http://
www.fao.org/docrep/016/ap106e/ap106e.pdf.
\9\ Lipinski, B., et al. ``Reducing Food Loss and Waste'' World
Resources Institute. 2013.
http://www.wri.org/sites/default/files/
reducing_food_loss_and_waste.pdf. Estimate is 22% of projected demand
could be offset through halving the amount of food lost or wasted.
---------------------------------------------------------------------------
We have not always been so wasteful. In the U.S., we waste 50
percent more food per capita than we did in the 1970s.\10\ This means
that there was once a time when we wasted far less, and therefore gives
me hope we could waste less today.
---------------------------------------------------------------------------
\10\ K.D. Hall, J. Guo, M. Dore, C.C. Chow, National Institute of
Diabetes and Digestive and Kidney Diseases, ``The Progressive Increase
of Food Waste in America and Its Environmental Impact,'' PLoS ONE
4(11): e7940, 2009.
---------------------------------------------------------------------------
To help evaluate solutions, the EPA has established a ``food
recovery hierarchy.'' It essentially echoes the traditional ``reduce,
reuse, recycle'' ethic that first and foremost, we should prevent waste
from happening in the first place. When that's not possible, we should
aim to use surplus to feed those in need. After that animal feed is
preferred, and then uses such as composting and anaerobic digestion.
Figure 1: EPA's Food Recovery Hierarch
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Food waste is a complex problem with losses occurring throughout
the supply chain from ``farm to fork.'' There are far too many reasons
to cover in a few short minutes. But I expect that over the course of
the next week, as you go about your lives, you will notice a few
yourselves. Nevertheless, I will try to give you a sense of a few:
Crops are sometimes left unharvested because their appearance does
not meet strict quality standards imposed by supermarkets, or because
of damage caused by pests, disease, labor shortages, or weather. When
market prices are too low, growers may leave some crops in the field if
the price will not cover their costs to harvest, wash, sort, package
and transport the product.
In catching seafood, there is enough bycatch discarded to provide
total yearly protein for 1.6 to two million people.\11\
---------------------------------------------------------------------------
\11\ D.C. Love, et al. ``Wasted Seafood in the United States: From
Net to Plate''. Global Environmental Change 35 (2015) 116-124.
---------------------------------------------------------------------------
Grocery stores are in the challenging position of having to carry a
vast array of products at every hour of the day. This high level of
inventory--the cost of consumer convenience--inevitably leads to waste.
At restaurants, large portions, large menus, and poor training for
food handlers contribute to food waste. All-you-can-eat settings have a
particularly egregious amount of waste between consumers taking too
much and the challenge of donating excess product that's been left out.
Last, from the limited data we have, it appears consumers represent
the largest portion of food waste of any segment of the supply chain.
Poor food management, lack of kitchen knowledge, and larger portions
are key contributors there.
A detailed description of many drivers at each stage of the supply
chain is included in the report Wasted * that is being submitted with
this testimony.
---------------------------------------------------------------------------
* The report referred to is retained in Committee file. Editor's
note: the hyperlink to download the full report is: https://
www.nrdc.org/sites/default/files/wasted-food-IP.pdf.
---------------------------------------------------------------------------
Promising Examples
The good news is, unlike many of the thorny issues I'm sure you
deal with, this one feels solvable. No one wants to waste food. And
somehow, people strangely love diving into this topic. I've been amazed
at how much energy and enthusiasm people have for telling me about the
new way they found to use up wrinkled tomatoes, or the effort they made
to wrap up the leftovers from their office lunch.
And because there are direct savings to be had, this enthusiasm has
extended to the business and entrepreneurial communities as well. I
know subsequent witnesses will cite several examples, but here are a
few to consider:
Still in its relatively early stages, a program by Compass
Group called Imperfectly Delicious Produce has sourced almost a
million pounds of off-grade product for use in over 24
states.\12\
---------------------------------------------------------------------------
\12\ Claire Cummings, Bon Appetit Management Company (Compass
Subsidiary), e-mail correspondence, January 20, 2016.
Founded in 1994, Alaska-based nonprofit SeaShare,
redistributes bycatch and donations of first rate seafood to
food banks. The group had donated more than 200 million seafood
servings as of 2015.\13\
---------------------------------------------------------------------------
\13\ SeaShare website, About page: https://www.seashare.org/about.
LeanPath software helps cafeteria kitchen managers track
waste and regularly sees reductions of over 50 percent in
kitchen waste in the first 6 to 12 months of use.\14\
---------------------------------------------------------------------------
\14\ Andrew Shakman, CEO, LeanPath, e-mail correspondence, May 21,
2016.
In 2014, Wal-Mart changed its method of addressing egg
cartons with single broken eggs and as a result saved over 37
million eggs in the first 8 months after the change.\15\
---------------------------------------------------------------------------
\15\ Anna Vinogradova, Senior Manager of Sustainability, Wal-Mart,
e-mail correspondence, March 17, 2016.
In England, a 5 year public campaign from 2007-2012 to
reduce food waste saw a 21 percent reduction in avoidable
household food waste.\16\ While this coincided with the
recession, they estimate about 60 percent of the reduction was
due to the campaign itself.\17\
---------------------------------------------------------------------------
\16\ WRAP UK, ``Household Food and Drink in the UK 2012'' http://
www.wrap.org.uk/content/household-food-and-drink-waste-uk-2012.
\17\ Parry, Andrew, ``Reduction in household food & drink waste--
Estimating the influence of WRAP and its partners.'' 2011.
---------------------------------------------------------------------------
Addressing Data Needs
Right now, we can't answer some basic questions around food waste
because we simply don't have the information. While we can infer, we
don't have concrete answers to questions such as:
How much food goes to waste on farms?
How much food goes to waste in restaurants, particularly on
people's plates?
What is the biggest reason people waste food in their homes?
In fact, I can't even give you a pie chart that accurately breaks
down the portions of food waste caused by each sector within the food
industry. People have taken stabs at this--most notably, the ReFED
report you'll hear about later and, for portions of the supply chain,
the USDA--but there is no comprehensive study from farm to fork, and
certainly not at the level of detail necessary to really highlight
solutions.
There is a particular dearth of data at the farm level, where only
a handful of small studies have been conducted, none of which are
comprehensive or statistically significant. And yet, anecdotally, those
studies are finding that anywhere from one to 30 percent of fresh
produce is not leaving the farm or packing shed.
Other areas that are poorly understood are homes and restaurants.
USDA conflates these two categories into one, which makes the data so
broad that it is helpful in identifying solutions.
You can't manage what you don't measure. Good data enables
baselines to be set, measures progress, and informs where programs and
projects should be directed in order to have greatest impact. At the
business level, data can inform specific changes that lead to less
waste.
A key first step in addressing the issue, therefore, is to conduct
further study and drive more data collection. Three methods to get
started include:
Direct research or target existing grant funds towards this
type of research.
Encourage measurement and reporting at the municipal levels
by establishing a standard protocol for municipalities to
follow and then aggregate municipal information at the Federal
level. This will help identify the most appropriate Federal
legislative solutions.
A final method to improve data around food waste is to
encourage corporate reporting of food waste. Establishing a
culture of measurement and reporting among companies will
facilitate benchmarking, encourage best practice, and allow
leaders to be rewarded.
Addressing Consumer Waste
Engaging the public is critical because (1) much of the waste
occurs in households and by consumers in restaurants, and addressing it
will require a change in consumer behavior; (2) consumer expectations
drive many of the business practices that lead to waste, so changing
those expectations could allow social license for businesses to change
those practices; and (3) engaging the public can also channel
individuals to impact change through their work or other spheres of
influence, be they restaurant workers or college educators.
The Ad Council and NRDC recently launched the Save the Food
national public service campaign with a TV spot, out of home materials
(billboards, bus shelters, etc.), printing, digital, and a website.
However, additional funds could extend the reach of the campaign
significantly--to children, to those who speak other languages, and to
those who suffer from food insecurity, to name just a few examples.
Providing this funding would truly catalyze a shift in the cultural
paradigm around food waste. As noted above, a similar campaign in the
UK saw avoidable household food waste reduced by 21% in just 5 years.
Educating children is another critical step in creating an engaged
public. This can be done through cafeteria programs, curriculum
materials, and farm-to-school and school garden programs. In addition,
teaching basic cooking skills in schools (K-12 and university) would
provide the critical kitchen skills necessary for wasting less food in
one's home.
Standardizing food date labels is another opportunity to address
consumer household waste.
Standardizing Food Date Labels
Up to 86 percent of consumers at least occasionally discard food
prematurely because they misinterpret dates to mean the food is unsafe
to eat.\18\ This confusion extends to businesses who also wind up
discarding perfectly edible food. Refining and standardizing the system
of date labeling on food offers one of the most concrete steps to
quickly reducing the amount of edible food being thrown out both in
households and businesses.
---------------------------------------------------------------------------
\18\ Food Marketing Institute, ``U.S. Grocery Shoppers Trends
2014'', p. 135.
---------------------------------------------------------------------------
The recent Food Date Labeling Act introduced by Rep. Chellie
Pingree (H.R. 5298) does just this. It establishes a nationwide
standard for two types of dates--one to indicate the date relates to a
product's quality and the other to indicate consuming food after the
date may create a risk related to people's safety. Standard phrases and
definitions should be established for both. Once created, sale of
products after the quality date should be allowed without repercussion.
After this new system is established, a widespread consumer
campaign should be conducted to educate consumers on the new
standardized system/meaning.
Reducing Farm Losses
For fruits and vegetables, farms merit particular attention because
they represent a significant portion of food losses and also an
opportunity to provide more healthy food. A key step in this is
supporting transportation and value-added processing of imperfect
produce, surplus No. 1 product, and byproducts. This can be done
through grant set asides, financing, or Federal loan guarantees for
equipment.
Encourage Innovation
Encouraging creativity in the entrepreneurial space could add a
suite of new solutions to reducing food waste. As this is a relatively
new area of focus for the food sector, the timing is opportune. There
is now a wonderful amount of energy and excitement to improve upon the
current situation. Creating set asides for projects that target food
waste reduction in current grant programs, such as USDA's Conservation
Innovation Grants or Specialty Crop Block Grants, could help identify
new, scalable solutions for the issue. Furthermore, technical
assistance and low interest financing could help solutions scale.
Encouraging Diversion of Food Scraps
Directing food scraps to composting, anaerobic digestion, and other
organics recycling options creates a number of environmental benefits,
including reducing the amount of methane-generating material in
landfills, while offering opportunities to create useful soil
amendments, recycle nutrients, and extract energy. In addition to
driving composting and other organics recycling, policies that
disincentivize organics from going to landfills and incineration help
drive prevention, partially because they increase awareness of just how
much is being thrown out.
Massachusetts, Connecticut, Vermont, Rhode Island, and California
currently have some level of ban or restriction on food scraps in
landfills or incinerators. Providing infrastructure financing for
composting and anaerobic digestion only to states with these types of
restrictions or bans would encourage other states to follow suit, while
also funding the infrastructure critical to making these bans work.
In Conclusion
Reducing food waste may feel complicated because it touches every
part of the food system. However, there are a number of clear steps
that can be taken immediately to make a real dent.
The Food Recovery Act introduced by Rep. Chellie Pingree (H.R.
4184) tackles food waste from a variety of angles and includes
solutions for many of the issues discussed above. I urge you to
consider that legislation as your discussions move forward.
Wasting less food is something everyone can get behind. No one
wants to see good food going to waste and, in some cases, there is even
money to be saved. I expect should you pursue solutions to this
problem, you'll find there is a broad base of support behind you.
Furthermore, every bit saved helps, so even some action can be
considered successful.
Thank you for the opportunity to discuss this issue with you today.
The Chairman. Thank you, Ms. Gunders.
Mr. Fink, 5 minutes.
STATEMENT OF JESSE M. FINK, MANAGING DIRECTOR, MissionPoint
PARTNERS LLC, NORWALK, CT; ON BEHALF OF ReFED: RETHINK FOOD
WASTE THROUGH ECONOMICS AND DATA
Mr. Fink. Thank you, Chairman Conaway, Ranking Member
Peterson, and the entire House Agriculture Committee, for the
opportunity to testify today. I am honored.
My name is Jesse Fink, and I am here as a representative of
the ReFED multi-stakeholder food waste initiative. I would like
to dedicate my testimony to my wife, Betsy Fink, a farmer, like
many Members of Congress who have committed their lives to
growing food. I also would like to dedicate the testimony to
the 50 million Americans who struggle with hunger. In a
resource-endowed country like ours, we should be able to
conquer hunger, conserve fresh water, and create new jobs
through the new food waste innovation.
My journey to become a food waste evangelist has been long,
and shaped by my career as an entrepreneur, a farmer, an
investor, and a philanthropist. Twenty years ago, I helped co-
found Priceline.com, a business model innovation powered by the
Internet, linking perishable airline seats with consumers
looking for cheaper tickets.
For the past decade, Betsy and I have learned firsthand how
challenging and rewarding it is to be a farmer. Similar to
Priceline, we see valuable perishable products going to waste.
Two years ago, we asked the team at Mission Point Partners
to develop a strategy to address the food waste issue
systematically, focusing on the most cost-effective and
scalable solutions. The huge gap in data needed for solution
identification was apparent. What resulted was the creation of
ReFED, a nonprofit initiative that recently released a Roadmap
to Reduce U.S. Food Waste by 20%, in conjunction with Deloitte
Consulting and RRS. ReFED built an advisory council of over 30
leading organizations committed to solving food waste. This
includes farmers, manufacturers, retailers, waste haulers,
foundations, nonprofits, and government leaders, many who are
represented here today.
Addressing food waste can help solve three of our nation's
largest problems. First and foremost is hunger. Our research
found that solutions feasible today could nearly double the
amount of food donated from businesses to hunger relief
organizations. Second is economic development. Reducing food
waste boosts the economy, with a conservative estimate of
15,000 jobs created from innovation. In addition, solutions
available today can create $100 billion of net economic value
over the next decade. This includes $6 billion in annual
savings for consumers, $2 billion in annual potential profit
for businesses, and a reduced burden on taxpayers, including
lower municipal disposal costs. Much of this economic
development will go towards food recovery, composting, and
anaerobic digestion infrastructure. Last, is the environment.
Commonsense food waste solutions will conserve up to 1.5
percent of our country's fresh water, and this is lost on
farms. In addition, reducing food waste will decrease methane
emissions from landfills, and increase the health of our soils
through composting.
Four crosscutting actions are needed to quickly cut 20
percent of waste, and put the U.S. on track to achieve the
broader USDA/EPA goal of a 50 percent food waste reduction by
2030.
First, education. For consumers and for employees of food
businesses. Second, innovation. ReFED has an innovation
database of over 200 companies. Incubators, accelerators, and
large companies are supporting entrepreneurs. There is also an
opportunity for government mechanisms to support their
ingenuity.
Right here in Washington, D.C., companies like Misfit
Juicery, Fruitcycle, and Hungry Harvest are examples of
startups that utilize produce that would typically go to waste.
Next is financing. The ReFED Roadmap highlights that we
need the full spectrum of capital, including philanthropic
grants, government incentives, and private investment to
accelerate the transition to a low-waste economy. Financing
innovation is required to galvanize the $18 billion needed to
achieve a 20 percent reduction in food waste nationwide. There
are opportunities to explore public-private partnerships,
innovative impact investing to support companies expanding
local energy infrastructure or composting facilities, and
government funding for research into early-stage technologies.
Last, is policy. Food waste is a complex issue, but three
Federal policy priorities stand out as highly impactful and
achievable today. First, make it easier for food businesses to
donate food for the hungry. Second, standardize date labeling
through legislation or voluntary industry action. And finally,
strengthen incentives and procurement for food waste solutions
at the local level, such as tax incentives for composting and
anaerobic digestion.
I would like to close by emphasizing that there is a huge
momentum and growing awareness around the issue of food waste.
The time is now for our country to embrace this solvable
problem, and by working together, turn it into an opportunity.
We can take steps to alleviate hunger, boost our economy, and
preserve our great natural resources.
I thank you for the opportunity to testify, and I look
forward to your questions.
[The prepared statement of Mr. Fink follows:]
Prepared Statement of Jesse M. Fink, Managing Director, MissionPoint
Partners LLC, Norwalk, CT; on Behalf of ReFED: Rethink Food Waste
Through Economics and Data
Thank you Chairman Conaway, Ranking Member Peterson, and the entire
House Agriculture Committee for the opportunity to testify today, I am
honored.
My name is Jesse Fink, and I am here as a representative of the
ReFED multi-stakeholder food waste initiative. I would like to dedicate
my testimony to my wife Betsy Fink, a farmer like many Members of
Congress who have committed their lives to growing food. I also would
like to dedicate this testimony to the 50 million Americans who
struggle with hunger. In a resource endowed country like ours, we
should be able to conquer hunger, conserve fresh water, and create new
jobs through food waste innovation.
My journey to become a food waste evangelist has been long, and
shaped by my career as an entrepreneur, a farmer, an investor, and a
philanthropist. Twenty years ago I helped co-found Priceline.com, a
business model innovation powered by the Internet linking perishable
airline seats with consumers looking for cheaper tickets.
For the past decade, Betsy and I have learned first-hand how
challenging and rewarding it is to be a farmer. Similar to Priceline,
we see valuable, perishable products going to waste. Two years ago we
asked the team at MissionPoint Partners to develop a strategy to
address the food waste issue systematically, focusing on the most cost
effective and scalable solutions. The huge gap in data needed for
solution identification was apparent.
What resulted was the creation of ReFED, a nonprofit initiative
that recently released a Roadmap to Reduce U.S. Food Waste by 20% in
conjunction with Deloitte Consulting and RRS. ReFED built an advisory
council of over 30 leading organizations committed to solving food
waste. This includes farmers, manufacturers, retailers, waste haulers,
foundations, nonprofits, and government leaders.
Addressing food waste can help solve three of our nation's largest
problems.
First, and foremost, is Hunger--Our research found that
solutions feasible today could nearly double the amount of food
donated from businesses to hunger relief organizations.
Second is Economic Development--Reducing food waste boosts
the economy, with a conservative estimate of over 15,000 jobs
created from innovation. In addition, solutions available today
can create $100 billion of net economic value over the next
decade. This includes $6 billion in annual savings for
consumers, $2 billion in increased annual profit potential for
businesses, and a reduced burden on taxpayers, including lower
municipal disposal costs. Much of this economic development
will go towards food recovery, composting, and anaerobic
digestion infrastructure.
Last is the Environment--Commonsense food waste solutions
will conserve up to 1.5% of our country's freshwater use, or
1.6 trillion gallons per year currently lost on farms. In
addition, reducing food waste will decrease methane emissions
from landfills and increase the health of our soils through
composting.
Four crosscutting actions are needed to quickly cut 20% of waste
and put the U.S. on track to achieve the broader USDA/EPA goal of a 50%
food waste reduction by 2030.
First, Education for consumers, and employees of food
businesses.
Second, Innovation--ReFED has an innovation database of over
200 companies. Incubators, accelerators and large companies are
supporting entrepreneurs. There is also an opportunity for
government mechanisms to support their ingenuity. Right here in
Washington, D.C., companies like Misfit Juicery, Fruitcycle,
and Hungry Harvest are examples of start-ups that utilize
produce that would typically go to waste.
Next is, Financing--The ReFED Roadmap highlights that we
need the full spectrum of capital, including philanthropic
grants, government incentives, and private investment to
accelerate the transition to a low waste economy. Financing
innovation is required to galvanize the $18 billion needed to
achieve a 20% reduction in food waste nationwide. There are
opportunities to explore public-private partnerships;
innovative impact investing to support companies expanding
local energy infrastructure or composting facilities; and
government funding for research into early stage technologies.
Last is, Policy--Food waste is a complex issue, but three
Federal policy priorities stand out as highly impactful and
achievable today. First, make it easier for food businesses to
donate food for the hungry. Second, standardize date labeling
through legislation or voluntary industry action. Finally,
strengthen incentives and procurement for food waste solutions
at the local level, such as tax incentives for composting and
anaerobic digestion projects to accelerate economic growth.
I would like to close by emphasizing that there is huge momentum
and growing awareness around the issue of food waste. The time is now
for our country to embrace this solvable problem and, by working
together, turn it into an opportunity. We can take steps to alleviate
hunger, boost our economy and preserve our great natural resources.
Thank you for the opportunity to testify. I look forward to your
questions.
Attachment 1.
A Roadmap to Reduce U.S. Food Waste by 20 Percent *
ReFED: Rethink Food Waste Through Economics and Data, http://
www.refed.com/.
---------------------------------------------------------------------------
* The report referred to is retained in Committee file. Editor's
note: the hyperlink to download the full report is: https://
www.refed.com/downloads/ReFED_Report_2016.pdf.
---------------------------------------------------------------------------
Attachment 2
A Roadmap to Reduce U.S. Food Waste by 20 Percent_Executive Summary
2016
Foreword
The Journey Starts Now
By 2050, it is estimated that the Earth's population will top nine
billion. This growing population will undeniably stress our food
systems, natural resources, and ecosystems. But consider this:
Currently, we waste up to 40% of our food globally. In the United
States, this equals roughly 400 pounds annually for every American.
Meanwhile, one in seven Americans are food-insecure.
We are grateful to everyone who contributed to the creation
of ReFED and this Roadmap, especially our philanthropic co-
funders and Advisory Council members. We would also like to
strongly acknowledge the pioneers in food waste reduction who
have dedicated time and great passion to this issue. Many have
worked for years at the grassroots, national, and international
levels to pave the way for this effort. And we'd like to thank
you, the reader, for engaging in this issue. Together, with the
steps laid out in this report, we can cut food waste by 20%
with actions that are feasible today, which will set us on the
path to meet the U.S. Government's target of a 50% reduction in
food waste by 2030.
These stunning facts--partnered with seeing waste occur firsthand
through our work with our operating farm and the restaurants and
grocery stores it services--really brought this issue home for us. This
prompted us as philanthropists and a family concerned about healthy
communities and ecological sustainability to ask our team to explore
the topic of wasted food.
Through our family foundation, we have been focused on solving
large-scale environmental issues with market-based solutions since
2001. We started by looking at how funding solutions to climate change,
both through grants and impact investments, can play an important role
in transitioning our society to a low-carbon economy.
Over the past 15 years, we've seen how climate change and resource
utilization are closely linked, and food is one of the most important
resources in that equation. This puts food waste squarely at the center
of many global challenges. Reducing food waste would have a game-
changing impact on natural resources depletion and degradation, food
insecurity, national security, and climate change. As one of the
largest economies and agricultural producers in the world, we believe
the United States has a major role to play in setting an example and
contributing to significant food waste reduction.
Last year, we approached like-minded philanthropists to join us in
launching ReFED: ``Rethinking Food Waste through Economics and Data: A
Roadmap to Reduce Food Waste'' to map a path for action and solutions.
We knew from the start that a multi-stakeholder approach was needed so
we invited leading food businesses, environmental and hunger
organizations, investors, policymakers, and innovators to join the
effort.
The economic analysis and research we undertook revealed exciting
news: Food waste is a solvable problem. But four priority actions are
needed to reach significant reductions. First, we must galvanize
hundreds of millions of dollars of new catalytic funding. Second,
policymakers must make pragmatic changes to tax incentives, safety
regulations, and permitting procedures to support healthy market
solutions. Third, America must unleash its spirit of innovation to
develop new technology and business-model innovations. Finally, a
sweeping education and awareness campaign is needed to change behavior
both among consumers and employees of food businesses.
This Roadmap report is a guide and a call to action for us to work
together to solve this problem. Businesses can save money for
themselves and their customers. Policymakers can unleash a new wave of
local job creation. Foundations can take a major step in addressing
environmental issues and hunger. And innovators across all sectors can
launch new products, services, and business models. There will be no
losers, only winners, as food finds its way to its highest and best
use.
The Roadmap is just the beginning. In order to succeed, we need to
crowdsource even more information and solutions. ReFED has welcomed
input at every stage and encourages input now. After reading the
Roadmap, we encourage you to visit refed.com, dig deeper into our
analysis, and send us your ideas and feedback.
This is a defining moment for us all. Let's start the journey now.
Thank you,
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Betsy and Jesse Fink,
Trustees,
The Fink Family Foundation.
About the Roadmap
The magnitude of the food waste problem is difficult to comprehend.
The U.S. spends $218 billion a year--1.3% of GDP--growing, processing,
transporting, and disposing of food that is never eaten. The causes of
food waste are diverse, ranging from crops that never get harvested, to
food left on overfilled plates, to near-expired milk and stale bread.
ReFED is a coalition of over 30 business, nonprofit, foundation,
and government leaders committed to building a different future, where
food waste prevention, recovery, and recycling are recognized as an
untapped opportunity to create jobs, alleviate hunger, and protect the
environment--all while stimulating a new multi-billion dollar market
opportunity. ReFED developed A Roadmap to Reduce U.S. Food Waste as a
data-driven guide to collectively take action to reduce food waste at
scale nationwide.
Key Benefits
The Roadmap outlines an actionable path to cutting U.S. food waste
by over 20%-13 million tons annually--while generating $100 billion of
economic value over the next decade and creating 15,000 new jobs. The
Roadmap is projected to generate the following benefits:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
* Jobs and environmental benefits not included in $100B
calculation. Jobs created is a total number, not annual new
jobs. Investment and Economic Value were calculated over a
decade.
Call to Action
These benefits are achievable, feasible, and realistic today, but
they will not be achieved without a concerted effort. Stakeholders must
commit to four levers of action: new financing to scale proven
solutions, commonsense policy change, adoption of emerging innovations,
and consumer and employee education.
Overall the Roadmap will require nearly $18 billion of new
investment over a decade, amounting to less than \1/10\ of a penny for
every pound of food waste diverted from landfill. To unlock this
financing, $100 to $200 million of catalytic financing is needed
annually to overcome bottlenecks through flexible grants, impact
investments, and low-cost project finance.
The Roadmap shows how we can take steps today to cut food waste by
20%, putting the U.S. on a path to achieve the broader national target
of a 50% reduction by 2030.
Key Stakeholder Actions
Reaching the goals outlined in the Roadmap will require a
collaborative effort from organizations throughout the food value
chain.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Farmers: Seek to reduce the 10 million tons of unharvested food
lost each year by developing secondary markets for
Imperfect Produce and further leveraging Value-Added
Processing.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Manufacturers: Reduce inefficiencies in manufacturing processes
while collaborating with retailers on Packaging Adjustments
and Standardized Date Labeling.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Restaurants & Foodservice: Save up to $1.6 billion in food
purchasing costs by further adopting Waste Tracking &
Analytics across all facilities, incorporating Imperfect
Produce into menus, and integrating Smaller Plates and
Trayless Dining in all-you-can-eat facilities.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Grocery Retailers: Market discounted Imperfect Produce, continue
to adopt Improved Inventory Management systems and Spoilage
Prevention Packaging, and collaborate to Standardize Date
Labeling to benefit consumers.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Federal Government: Create jobs and alleviate hunger by retaining
and expanding food Donation Tax Incentives, and consider
national Standardized Date Labeling legislation.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
State And Local Government: Continue to support landfill or
commercial food waste bans, reduce permitting barriers for
Centralized Compost and Anaerobic Digestion (AD), and
implement consistent rules for Standardized Donation
Regulation across states.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Foundations & Nonprofits: Support major Consumer Education
Campaigns, build multi-stakeholder efforts for Standardized
Date Labeling and employee education on best practices, and
fund food donation and recycling infrastructure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Investors: Provide dedicated funds that offer flexible project
finance for Centralized Compost and AD facilities, as well
as early stage and growth equity to scale emerging
innovations.
Food Waste Overview
Food waste occurs throughout the supply chain. Upstream, waste
begins at farms and food manufacturing businesses, where it is
typically left in fields to be tilled over or converted into animal
feed.
Yet over 80% of waste occurs downstream within consumer-facing
businesses--grocery stores, restaurants, and institutional
foodservice--and homes, where current recovery and recycling rates are
estimated to be only 10%.
Of the $218 billion spent each year on food that is never eaten,
roughly \2/3\ is spent by consumers. This is due to high volumes of
uneaten food, the high cost to purchase food at retail, and the high
value of meat--a popular family purchase item. Almost \4/5\ of food
waste stems from perishables, primarily fruits and vegetables, because
they are inexpensive and quickly go bad.
------------------------------------------------------------------------
-------------------------------------------------------------------------
Key Definition
Food Waste--Any food that is grown and produced for human
consumption but ultimately is not eaten.
------------------------------------------------------------------------
Economic Analysis
The Roadmap analysis included a four-step process: Baseline
Definition, Solutions Evaluation, Data Analysis, and Data Validation.
Baseline Definition
Prior estimates of food waste in the U.S. have ranged from 35
million tons (EPA) to 103 million tons (FAO) per year, depending on
scope and methodology. ReFED collected one of the broadest sets of data
to date to establish a map of where food is wasted.
ReFED determined that the baseline amount of U.S. food waste today
is approximately 62.5 million tons annually: 52.4 million tons disposed
annually in landfills and incinerators and 10.1 million tons of on-farm
waste from unharvested crops and packhouses.
Solutions Evaluation
A wide list of food waste solutions was gathered from stakeholders
and narrowed to 27 priority solutions that met criteria around data
availability, cost-effectiveness, feasibility, and scalability. ReFED's
analysis follows the EPA Food Recovery Hierarchy, which prioritizes
prevention, recovery, and then recycling solutions to maximize
benefits.
Prevention keeps waste from occurring in the first place.
Recovery uses donations from food businesses to feed the
hungry.
Recycling transforms food scraps into value-added products
instead of landfilling.
Food Waste Solutions
------------------------------------------------------------------------
Priority Food Waste
Type Category Solutions
------------------------------------------------------------------------
Prevention 1. Packaging, Product, Standardized
and Portions Date Labeling
Produce
Specifications
(Imperfect Produce)
Packaging
Adjustments
Spoilage
Prevention Packaging
Smaller Plates
Trayless Dining
2. Operational and Supply Waste Tracking
Chain Efficiency & Analytics
Improved
Inventory Management
Cold Chain
Management
Manufacturing
Line Optimization
Secondary
Resellers
3. Consumer Education Consumer
Education Campaigns
------------------------------------------------------------------------
Recovery 4. Donation Policy Donation Tax
Incentives
Standardized
Donation Regulation
Donation
Liability Education
5. Donation Donation
Infrastructure Matching Software
Donation
Storage & Handling
Donation
Transportation
Value-Added
Processing
------------------------------------------------------------------------
Recycling 6. Agricultural Products Centralized
Composting
Home Composting
Community
Composting
Animal Feed
7. On-site Business In-Vessel
Processing Composting
Commercial
Greywater
8. Energy & Digestate Centralized
Anaerobic Digestion
(AD)
WRRF with AD
------------------------------------------------------------------------
Data Analysis
The Roadmap includes three analyses of the 27 solutions: Marginal
Food Waste Abatement Cost Curve, Business Profit Potential, and Non-
Financial Impacts.
Marginal Food Waste Abatement Cost Curve (``Cost Curve'')
The Cost Curve illustrates an at-a-glance comparison of solutions
based on the cost-effectiveness per ton of waste reduced and the
scalability of the diversion potential. Cost-effectiveness is based on
Economic Value--the annual aggregate financial benefit to society minus
all investment and costs.
Implementing the 27 solutions would deliver $10 billion of annual
Economic Value to society. Prevention and recovery are generally
magnitudes more cost-effective than recycling, while recycling offers
significantly larger diversion potential.
Why is this?
Prevention and recovery typically require low up-front
investment for software upgrades or packaging tweaks, while
recycling requires higher up-front investment for large
processing and logistics infrastructure.
Prevention and recovery capture the high value of edible
food, while recycling captures inedible food scraps, which are
ten to 50 times less valuable.
Centralized recycling projects achieve scale through large
municipal programs that coordinate policy, collection
infrastructure, and processing facilities.
Prevention and recovery solutions are harder to scale
because they require more customization and collaboration for
each type of food business facility.
Marginal Food Waste Abatement Cost Curve
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
* Other: Community Composting, Animal Feed, In-Vessel
Composting.
Business Profit Potential
The Roadmap estimates that $1.9 billion of annual Business Profit
Potential will come from the revenue and cost savings of implementing
11 of the analyzed solutions.
Restaurants and foodservice facilities can achieve the largest
profit opportunity, $1.6 billion annually. The majority of this profit
comes from improved Waste Tracking & Analytics, reflecting the
operational inefficiencies in food purchasing and kitchen prep.
Retailers and recycling developers can capture additional profit by
finding new markets for Imperfect Produce, integrating Spoilage
Prevention Packaging into more products, and building out dozens of new
Centralized Composting and AD facilities.
Restaurants and Foodservice Facilities Have The Largest
Profit Opportunity--$1.6 Billion Annually.
Annual Business Profit Potential ($M)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Non-Financial Impacts
The Roadmap focused on four of the many additional benefits of food
waste reduction: meals recovered, jobs created, greenhouse gas
reductions, and water conservation.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Meals: 1.8 billion meals can be recovered annually, doubling
current donation levels of food at risk of being wasted,
primarily through improved tax donation incentives and
standardized safe handling regulation for donated food.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Jobs: 15,000 jobs can be created primarily through processing and
applying compost. Other job creation drivers include AD
facilities as well as food donation transportation,
storage, and handling.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
GHGs: Nearly 18 million tons of GHG emissions may be reduced
annually by avoiding agricultural and livestock impacts and
reducing methane emissions from scraps disposed in
landfills. Solutions that prevent emissions associated with
meat production have the largest impact per ton.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Water: 1.6 trillion gallons of water annually may be able to be
conserved--1.5% of annual U.S. freshwater withdrawals--
primarily through the prevention of large amounts of water
needed for agriculture.
The Roadmap would also increase the amount of compost available to
enrich our soils, with potential benefits ranging from enhanced water
retention to carbon sequestration.
Data Validation
Over 80 experts were interviewed, and all assumptions and
methodology were refined by a multi-stakeholder Advisory Council of
industry leaders. Future research that integrates system
interdependencies can enhance and refine this economic analysis, going
forward.
------------------------------------------------------------------------
-------------------------------------------------------------------------
Key Definition
Business Profit Potential is defined as the expected annual profits
that the private sector can earn by investing in solutions after
adjusting for initial investment required, differentiated costs of
capital, and benefits that accrue to nonbusiness stakeholders.
------------------------------------------------------------------------
Prevention
Just as it is more cost-effective to prevent a disease than to
treat it later, prevention is the most cost-effective strategy to
reducing food waste. Prevention solutions have the highest cost-
effectiveness and net environmental benefit and hold the potential to
divert 2.6 million tons of annual waste.
Common barriers to prevention include misalignment of costs and
benefits between stakeholders, lack of consumer demand for waste-saving
activities, information gaps, and organizational silos within large
food businesses.
Key Findings
Prevention generally requires low levels of investment for
behavior drivers such as packaging changes, software, and
marketing.
At retail, food is worth roughly $2.50 per pound, magnitudes
higher than the value of food as crops on farms or scraps for
disposal.
Prevention, by avoiding unnecessary fertilizer and fuel use
on farms, has twice the lifecycle greenhouse gas benefit per
ton of food waste diverted compared to recycling.
The three most scalable prevention solutions are:
Standardized Date Labeling, which will help reduce the
estimated 20% of consumer food waste caused by confusing ``sell
by,'' ``best by,'' and ``use by'' labels that do little to
indicate actual food safety risks.
Consumer Education Campaigns, which will raise awareness and
educate consumers about ways to save money and prevent waste.
Waste Tracking & Analytics within more restaurants and
commercial kitchens, which can track data on wasteful practices
to inform behavioral and operational changes.
Recovery
Most people have seen perfectly good food thrown away at a
restaurant or dinner party and wished there was a way to get it to
people in need. Food recovery captures food donations from businesses
and transports it to organizations that feed the hungry, such as food
banks and soup kitchens. The Roadmap demonstrates that food recovery
can double nationwide, increasing by roughly 1.8 billion meals (1.1
million tons).
Common barriers to food recovery include liability concerns among
food businesses, fragmented food safety regulations, a lack of
transportation and storage infrastructure capacity, and the extra
financial burden associated with food donations. Food recovery networks
differ widely by region and geography. Rural communities often face
higher transportation costs to reach people in need, while urban
communities may lack food sourcing and procurement channels from farms
and food manufacturers. California is more likely to have surpluses of
fruits and vegetables, while Iowa and Texas are likely to have more
grains and meat available.
Key Findings
The food recovery ecosystem requires three pillars to scale:
(1) enabling policy that financially incentivizes donations
from businesses while providing standardized food safety
regulations, (2) education for businesses on donor liability
protections and safe food handling practices, and (3) logistics
and infrastructure to transport, process, and distribute excess
food.
Over \1/2\ of the recovery opportunity requires tweaks to
legislation regarding tax incentives for business donations and
safety regulations for donated food handling.
Nearly \1/2\ of new recovery potential comes from produce
surpluses on farms and at packinghouses, a sector with lower
levels of donations today than food retailers.
The three most scalable recovery solutions are:
Donation Tax Incentives that are sustained and expanded to
cover all types of food businesses
Standardized Donation Regulation that standardizes
enforcement among local and state health departments to provide
a common set of rules for large businesses.
Donation Matching Software that connects individual food
donors with recipient organizations to reach smaller-scale and
perishable food donations.
Recycling
Recycling offers the most scalable path to reducing food waste
nationally, enabling 9.5 million tons of annual waste diversion--nearly
\3/4\ of the total Roadmap potential. Recycling food waste through
distributed or centralized processing diverts food scraps from
landfills and transforms it into beneficial soil amendments, clean
biogas, or animal feed.
Municipalities have increased interest in food waste recycling due
to shrinking landfill capacity, improving economics, and greater
awareness of positive environmental impacts. Many programs are driven
by state and local policies, including landfill bans, renewable energy
incentives, and direct economic incentives. Food waste is typically
combined with other organics recycling programs such as lawn clippings
and manure.
A municipal recycling program depends on three elements to remain
healthy: homes and businesses that consistently put food scraps into
separate bins, haulers that have enough economic incentive to pick up
separate loads of food scraps and deliver them to recycling facilities,
and processing facilities that remain profitable through sufficient
access to feedstock material, financing, and end markets.
Key Findings
The Northeast, Northwest, and Midwest generally show the
most potential for Economic Value from recycling due to high
disposal fees and high compost and energy market prices.
Including the non-financial job and environmental benefits
of large compost and AD projects into municipal cost-benefit
analyses will help more projects to be built.
The top three levers to scale recycling are an increase in
landfill disposal costs, efficiencies in hauling and collection
through closer siting to urban centers, and denser routes.
Other key bottlenecks to overcome are high up-front project
costs (particularly for AD facilities), low pricing for biogas
and compost, assurance of material supply, packaging that
contaminates the waste supply, and permitting and siting of
processing facilities.
The three most scalable recycling solutions are:
Centralized Composting, which can divert the most waste of
any solution but will require an increase in compost demand for
agricultural and environmental remediation to match the boost
in supply.
Centralized Anaerobic Digestion (AD) that harnesses the
energy in food scraps for electricity or transportation and
provides a digestate that can enhance soils.
Water Resource Recovery Facilities (WRRF) with AD that
utilize existing wastewater infrastructure to accept additional
waste delivered by truck or through existing sink disposal
pipes.
The Path Ahead
The Roadmap demonstrates that achieving a 20% reduction in food
waste will generate a positive financial, social, and environmental
return on investment. But it will not happen without a concerted effort
to galvanize action across four areas: financing, policy, innovation,
and education. This section outlines the resources needed to enable a
20% reduction, as well as the biggest opportunities to reach a broader
50% goal.
Financing
The Roadmap will require $18 billion of investment to implement
within a decade, or roughly $2 billion per year, which costs less than
\1/10\ of a penny per pound of food waste reduced. This one-time
investment is projected to yield roughly $100 billion in societal
economic value over the same period. Key financial benefits include a
reduction in consumer food bills, increased business profit, and a
reduced tax burden for municipalities from lower landfill disposal
fees.
Most of this funding will flow naturally from market forces or the
extension of existing government programs. The $18 billion can be
broken out into private, philanthropic, and government sources.
Private investment of $6.6 billion is expected to flow to
opportunities that offer a compelling risk-adjusted return. The largest
portion is expected from internal corporate capital expenditures on
solutions such as Secondary Resellers, Packaging Adjustments, or
Smaller Plates in dining facilities. Additional private capital is
needed for private venture and growth equity to fund and scale
businesses that provide emerging solutions. Private project equity and
debt will be needed mainly for large recycling facilities.
Government support of $8.2 billion is expected mainly via existing
legislation. Most of this funding consists of tax incentives over the
next decades to incentivize food businesses to increase their rate of
food donations. In addition, nearly a billion dollars of public project
finance is needed to stimulate projects that have a strong social
benefit, such as WRRF with AD and Community Composting.
Finally, philanthropic funding of roughly $3 billion is needed to
fund solutions that create public benefits or have costs and benefits
that accrue to different organizations. Of this funding, nearly a
billion dollars of impact investments, a major source of catalytic
financing, is needed in the form of low-interest loans and high-risk
equity investments. Catalytic financing will serve a critical role to
overcoming system-level bottlenecks, derisking new innovations or novel
projects, overcoming agency problems, and stimulating projects with
marginal economics.
Big Financing Opportunity--Form new impact investment funds
to galvanize investment in food waste reduction solutions while
better incorporating social and environmental benefits into
government budgeting.
Financing Needs for 20% Reduction in Food Waste Over a Decade
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Policy
The Roadmap was framed to focus on solutions that can scale under
existing policy or with only minor adjustments. The near-term priority
should focus on three policies:
Donation Tax Incentives--Maintain and build upon the recent
expansion of permanent Federal food donation tax incentives for
all farms and food businesses.
Food Donation Regulation--Create a common standard of safe
handling practice regulations among state and local health
departments.
Recycling Best Practices--Spread best practices to encourage
recycling, such as streamlined permitting of processing
facilities, improved enforcement of waste bans, and expanded
incentives to encourage diversion of food waste from landfills.
Ten Roadmap solutions could be further enhanced through
standardized policies at the Federal level.
Big Policy Opportunity--Pass comprehensive Federal food waste
legislation that ties together nearly a dozen individual
policies and signals a market shift to food businesses.
Innovation
At a high level, there are five priority categories of technology
innovation that can drive the greatest impact on food waste reduction:
Packaging and labeling.
IT-enabled transportation and storage.
Logistics software.
Value-added compost products.
Distributed recycling solutions
In addition to technology innovations, business-model innovations
are needed to develop new ways to share risk across the supply chain in
novel ways.
Incremental innovation will lower the cost and improve the
performance of many Roadmap solutions. Advancements in materials will
drive innovation around packaging, while new mobile apps will improve
the effectiveness of Consumer Education Campaigns and Donation Matching
Software. Numerous plant-level innovations around Centralized
Composting and AD will drive down processing costs and improve the
quality of outputs.
Over \1/3\ of Roadmap solutions have the potential for disruptive
innovations that can further expand their potential beyond the
projections in this report. The food technology innovation sector is
growing rapidly, with new food incubators and investment funds emerging
each month. By focusing this entrepreneurial energy to solve the
biggest barriers inhibiting food waste reductions, top priority
innovations can be accelerated into the market.
Big Innovation Opportunity--Build a network of food waste
innovation incubators across the U.S. with dedicated funding,
mentorship, and facilities to achieve technology and business-
model breakthroughs across five priority innovation areas.
Education
The large number of Roadmap barriers that are behavioral in nature
highlights the need for education, training, and capacity-building to
enable change at scale. Behavior change is needed for two core groups:
consumers and employees.
Consumer Education Campaigns is one of the most cost-effective and
scalable Roadmap solutions because it directly influences food
purchasing and eating behaviors. Consumer education is also critical to
spurring consumer demand for smarter offerings at grocery retailers and
restaurants, including Standardized Date Labeling, Spoilage Prevention
Packaging, Imperfect Produce, and Trayless Dining.
In 2016, NRDC and the Ad Council will launch the first widespread
public service campaign promoting food waste awareness, similar to a
program launched in the UK in recent years. This campaign must be
expanded, measured, and improved over time.
For food businesses, half of ReFED's solutions require hands-on
employee involvement in day-to-day execution, which is challenging
given high turnover rates in the sector. Training is needed to avoid
the removal of product from shelves when it is still safe and edible,
identify food that can be donated, and properly source-separate scraps
to remove contaminants for recycling. The quickest path to widespread
employee training would be to link a new Food Waste Certification to
existing Food Safety Certification programs, as they are already
mandatory in many food businesses and are a top priority for management
teams.
Big Education Opportunity--Expand emerging efforts to achieve
a national social-based marketing campaign that achieves
widespread consumer awareness and behavior change in
coordination with a national food waste employee certification
effort.
How To Take Action
With this report, ReFED calls upon American businesses, nonprofits,
government leaders, and investors to rise to the challenge and lead the
way in transforming the management of food waste from a burden to a
critical resource in solving society's biggest challenges.
------------------------------------------------------------------------
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Ready to join the coalition?
Visit ReFED.com to download the full report and find more
information about top priority opportunities to take action today.
------------------------------------------------------------------------
Attachment 3
A Roadmap to Reduce U.S. Food Waste by 20 Percent_Key Insights
2016
Key Insights
The Roadmap to Reduce U.S. Food Waste by 20 Percent was developed
to identify the most cost-effective solutions to cut food waste at
scale, to define research priorities, and to spur multi-stakeholder
action. To download the full Roadmap, join this effort or learn more,
go to refed.com.
The Problem
Today, the United States spends over $218 billion_1.3% of GDP_
growing, processing, transporting, and disposing of food that is never
eaten.
Each year, 52.4 million tons of food is sent to landfill,
and an additional 10.1 million tons remains unharvested at
farms, totaling roughly 63 million tons of annual waste.
The Roadmap
ReFED envisions a future where combating food waste is a core
driver of business profits, job creation, hunger relief, and
environmental protection.
The Roadmap shows an achievable path to a 20% reduction of
food waste within a decade through 27 cost-effective, feasible,
and scalable solutions. These solutions would divert 13 million
tons from landfills and on-farm losses.
Implementing the Roadmap is projected to generate 15,000 new
jobs, double recovered food donations to nonprofits (1.8
billion meals per year), reduce up to 1.5% of freshwater use
(1.6 trillion gallons per year), and avoid nearly 18 million
tons of greenhouse gas emissions annually.
Economic Value
The Roadmap will require an $18 billion investment, less than \1/
10\ of a penny of investment per pound of food waste reduced, which
will yield an expected $100 billion in societal Economic Value over a
decade.
The estimated funding need is $8 billion of government
support via mostly existing legislation, $7 billion of market-
rate private investments, and $3 billion of philanthropic
grants and impact investments.
Consumers will reap the biggest economic benefit, saving
$5.6 billion annually by cutting unnecessary spending on food
that is never eaten.
Restaurants and foodservice providers could gain the largest
business profit improvement--over $1.6 billion annually--by
adopting Waste Tracking & Analytics, Smaller Plates, and other
solutions.
Prevention, which avoids unnecessary fertilizer and fuel use
on farms, has twice the lifecycle greenhouse gas benefit per
ton compared to food recycling. The prevention of unnecessary
meat production offers the largest marginal environmental
benefit of any category. Recycling reduces landfill methane
emissions, while also offering the opportunity to return
nutrients to large amounts of degraded soils.
Prevention
Solutions that prevent waste in businesses and homes have the
greatest Economic Value per ton and net environmental benefit,
diverting 2.6 million tons of annual waste.
The top three solutions with the greatest Economic Value per
ton all utilize prevention: Standardized Date Labeling,
Consumer Education Campaigns, and Packaging Adjustments.
Prevention solutions are generally capital-light; they
involve changing behaviors through packaging changes, software,
and marketing.
At retail, food is worth roughly $2.50 per pound, magnitudes
higher than the value of food scraps for disposal, providing a
large economic driver for prevention efforts.
Recovery
Food recovery can increase by 1.8 billion meals annually, nearly
doubling the amount of meals rescued today and diverting 1.1 million
tons of waste.
The food recovery ecosystem requires three pillars to scale:
business education, enabling policy, and available and
efficient transportation and cold storage.
Over \1/2\ of the opportunity requires legislation,
including the maintenance and expansion of tax incentives for
business donations and the standardization of food handling
safety regulations.
Nearly \1/2\ of new recovery potential comes from produce
surpluses on farms and at packinghouses, a sector with lower
levels of donations today than food retailers.
Recycling
Centralized Composting and Anaerobic Digestion (AD), as well as a
smaller set of growing distributed solutions, will enable 9.5 million
tons of waste diversion_nearly \3/4\ of the total potential.
Centralized Composting diverts the most waste, adding over 2
million tons of compost annually to fuel growth in the
sustainable farming and environmental remediation markets.
The Northeast, Northwest, and Midwest can generally realize
the most Economic Value from recycling due to high landfill
disposal fees and high compost and energy market prices.
Nearly $3 billion of investment is needed for recycling
infrastructure, mainly for compost and AD processing and
collection.
Municipalities can help build more large recycling projects
by including non-financial job and environmental benefits into
cost-benefit analyses.
The top levers to scale recycling beyond the Roadmap targets
are an increase in landfill disposal costs and efficiencies in
hauling and collection through closer siting of organics
processing to urban centers and optimized collection routes.
Other key bottlenecks to overcome are the high cost of project
capital, particularly for AD facilities, and low, unstable
pricing for biogas and compost.
Tools for Action
Four crosscutting actions are needed to quickly cut 20% of waste
and put the U.S. on track to achieve a broader 50% food waste reduction
goal by 2030.
Financing--To overcome the bottlenecks to unlocking $18
billion in financing, $100-$200 million annually is needed in
catalytic grants, innovation investments, and low-cost project
finance. Today, few investors or foundations focus explicitly
on food waste.
Policy--Commonsense policy adjustments are needed to scale
Federal food donation tax incentives, standardize safe handling
regulations, and boost recycling infrastructure by expanding
state and local incentives and reducing permitting barriers.
The biggest lever to accelerate change is comprehensive Federal
legislation.
Innovation--Key technology and business-model innovations
are needed around packaging and labeling, IT-enabled
transportation and storage, logistics software, value-added
compost products, and distributed recycling. These could be
accelerated through a national network of food waste innovation
incubators.
Education--Launching a widespread training effort to change
the behavior of food business employees is critical. In
addition, campaigns to raise food waste awareness among
consumers need to attract additional funding and support to
expand to the scale of anti-littering and anti-smoking efforts.
An $18 Billion Investment in 27 Solutions To Reduce U.S. Food Waste
by 20% Will Yield $100 Billion in Societal Economic Value Over a
Decade.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Jobs and environmental benefits not included in $100b
calculation.
* Jobs created is a total number, not annual new jobs.
Priority Stakeholder Actions At a Glance
These Actions offer the largest opportunities for each stakeholder
to contribute to food waste reduction, both through new initiatives and
by expanding existing efforts. They are described in more detail
throughout the Roadmap.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
FarmersDSeek to reduce the 10 million tons of
cosmetically imperfect or unharvested food lost
each year:
Collaborate with food businesses to further develop a
secondary market for Imperfect Produce.
Leverage Value-Added Processing, both on farms and through
partner organizations, to turn excess produce into soups or
shelf-stable products for new profit- or donation-driven
businesses.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
ManufacturersDExpand existing leadership in
repurposing excess food through multi-
stakeholder collaborations:
Continue to increase efficiencies through Manufacturing
Line Optimization to boost profits.
Collaborate with retailers on Packaging Adjustments,
Spoilage Prevention Packaging, and Standardized Date
Labeling.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Restaurants & FoodserviceDSave up to $1.6
billion in food purchasing costs:
Further adopt Waste Tracking & Analytics across all
facilities and incorporate Imperfect Produce into menus to
reduce costs.
Shift consumer behavior with Smaller Plates and Trayless
Dining in all-you-can-eat facilities
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Grocery RetailersDIncrease profits while
empowering customers to reduce waste:
Boost revenues by marketing discounted Imperfect Produce,
and continue to reduce costs by adopting Improved Inventory
Management systems and Spoilage Prevention Packaging.
Collaborate with retailers and manufacturers to adopt
Standardized Date Labeling to benefit consumers.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Federal GovernmentDCost-effectively create jobs
and alleviate hunger through smart policies:
Retain and expand Donation Tax Incentives for businesses
that donate food.
Introduce national Standardized Date Labeling legislation
(if industry does not make voluntary progress).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
State And Local GovernmentsDPursue holistic
approaches to waste reduction--incentivizing
prevention, recovery, and recycling to reduce
the tax burden and address food insecurity:
Continue to support organics diversion through use of
mandates or landfill or commercial food waste bans, reduce
permitting barriers for compost and AD, and enforce
programs through incentives or fines.
Implement Standardized Donation Regulations across states.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
FoundationsDProvide the $300 million needed
annually to protect the environment, alleviate
hunger, and develop local economies:
Provide grant funding for major Consumer Education
Campaigns, and support multi-stakeholder efforts to enact
Standardized Date Labeling and educate employees and others
on best practices.
Make grants and impact investments to support food
donation and recycling infrastructure, including trucks,
cold storage, IT systems, and processing facilities
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
InvestorsDGenerate returns from an untapped $2
billion market opportunity:
Provide dedicated funds that offer flexible project
finance for compost and AD facilities.
Provide early-stage and growth equity to scale existing
business software solutions and innovative technologies
that reduce the cost of prevention, recovery, and
recycling.
The Chairman. Thank you, Mr. Fink.
Mr. Oxford, 5 minutes.
STATEMENT OF JOHN OXFORD, PRESIDENT AND CHIEF
EXECUTIVE OFFICER, L&M COMPANIES; CHAIRMAN-ELECT, PRODUCE
MARKETING ASSOCIATION, RALEIGH, NC
Mr. Oxford. Chairman Conaway, Ranking Member Peterson, and
Members of the Committee, thank you for the opportunity to
testify at today's hearing on food waste.
I am John Oxford, President and CEO of L&M Companies, based
in Raleigh, North Carolina. Founded in 1964, we are a family
agricultural business that grows, markets, and distributes
fresh produce. Our products and our crops include a variety of
vegetables, potatoes, onions, melons, apples, pears, and more.
In addition to my day job, I am Chairman-elect for the
Produce Marketing Association, which is the largest trade
association representing companies that market fresh fruits and
vegetables. PMA represents more than 2,700 member companies in
45 countries. In the United States, our members throughout the
supply chain, from growing, processing, manufacturing,
distribution, wholesaling, retail, and food service, handle
more than 90 percent of the fresh produce sold to consumers.
My testimony today comes from the perspective of a grower.
Dealing with food waste is a complex issue that requires a
suite of solutions. When fresh produce goes to waste, we lose
the fruits or vegetables as well as the inputs, labor, energy,
water, and fertilizer, and if the product has been harvested,
cooled, and transported, we lose even more. Thus, the incentive
for producers to innovate to minimize waste and loss is
significant. Our first preference and our goal is that fresh
produce reaches its highest and best use: feeding people.
At L&M, we employ a range of options for produce that is
unmarketable as fresh to the consumer. We use several outlets
for usable product that is not going to be sold through the
intended channel. We regularly try to find alternative markets
or uses, and in addition, L&M supplies hundreds of thousands of
pounds of healthful, fresh produce every year to charities,
including Farmers Feeding Florida, Feeding America, Operation
Blessing, and a host of others.
In my role as Chairman-elect of PMA, I am excited about the
innovative approaches some of my colleagues are taking to
further reduce food waste. In fact, most of you probably have
one of the earliest examples of innovation to reduce food waste
in your refrigerator at home, and we have provided some at your
desks this morning. Baby carrots were born from a concern over
food waste. Misshapen carrots were cut and shaped into the now-
common baby carrots. In fact, today, baby carrots represent 70
percent of all carrot sales, and according to a recent
Washington Post article, this effort to reduce waste has
actually now doubled carrot consumption.
Recently, Sysco's produce distributor, FreshPoint,
introduced its Unusual But Usable program. Though FreshPoint is
a food service distributor, it partners with produce growers,
taking ugly or imperfect produce that might otherwise go to
waste and finds consumers interested in utilizing it. This
reduces the waste caused by cosmetic imperfections, and the
customers get what they want, often at a more attractive price
point.
Red Jacket Orchards in New York, like many apple and pear
processors, takes the residual solids left after juicing and
makes them into pomace cakes that can be used to feed
livestock. This considerably reduces what goes to the landfill,
and is an additional supply chain outlet for the grower. We
have also supplied some samples of these cakes at your seats
today.
In another example, Gill Onions, a California-based
producer and processor, installed an advanced energy recovery
system that converts 100 percent of its daily onion residuals,
such as juice, into renewable energy and cattle feed. Instead
of incurring the disposal cost for its more than 300,000 pounds
of annual onion waste, Gill Onions actually saves approximately
$700,000 per year on energy and disposal cost, and has
significantly reduced its environmental footprint.
A final area I would like to address is the importance of a
strong industry and government partnership to address food
waste. Encouraging innovation such as new variety development
through traditional modern breeding practices can bring us
traits that enhance a crop's ability to withstand stresses due
to climate and pests. Likewise, increasing fruits' and
vegetables' shelf life, making them more durable for the
transportation process, will reduce waste. We also need the
Federal Government as a partner in the area of research. USDA's
intra- and extramural research programs have done great things
for our industry, and specialty crops in general. And last, but
certainly not least, we need help on labor issues. Many growers
across the U.S. find difficulty finding farm workers, and
produce is too often left to rot in the field. I recognize this
is a difficult issue to tackle politically, but we need
Congress to take action.
Significantly reducing our nation's food waste is a
challenging endeavor. L&M and the Produce Marketing Association
stand ready to partner with you and my fellow witnesses here
today to move us closer to a zero waste system.
Thank you again, Mr. Chairman, for holding this important
hearing, and bringing the Committee's attention to these
critical issues.
[The prepared statement of Mr. Oxford follows:]
Prepared Statement of John Oxford, President and Chief Executive
Officer, L&M Companies; Chairman-Elect, Produce Marketing Association,
Raleigh, NC
Chairman Conaway, Ranking Member Peterson, and Members of the
Committee, thank you for the opportunity to testify at today's hearing
on food waste. I am John Oxford, President and CEO of L&M Companies
founded in 1964 and based in Raleigh, N.C. As a fully integrated, year-
round supplier of fresh fruits and vegetables, we grow our own crops
and market crops for growers across the United States, Mexico, and
Central America. With farms of various sizes across numerous
geographies, we carefully map out the volume of product and diversity
of our growing locations. This allows us to better control quality and
consistency throughout our core product categories: a wide variety of
vegetables, potatoes, onions, melons, apples, pears, and cherries. We
offer locally grown products and manage locally grown programs as well.
And we provide turnkey services for customers, including logistics
solutions, consolidation facilities, quality control, food safety,
marketing, and a centralized point of contact.
I joined L&M in 2001, and I am proudest of our product quality and
service, the strength of our team and growers, and our commitment to
our customers' needs.
In addition to my day job, I am Chairman-elect for the Produce
Marketing Association, which is the largest trade association
representing companies that market fresh fruits and vegetables. PMA
represents more than 2,700 member companies in 45 countries. In the
United States, our members operate throughout the supply chain from
growing to shipping, processing/manufacturing, distribution,
wholesaling, retail and foodservice. Collectively, in the United
States, our members handle more than 90 percent of the fresh produce
sold to domestic U.S. consumers.
Today I am here to talk about food waste, especially produce waste
from the perspective of the grower. This is a complex issue that
requires a suite of solutions as there is no silver bullet. Fresh
produce is one of the top contributors to food waste--from the fields
to stores and restaurants to our homes. When fresh produce goes to
waste, we lose not only the fruits or vegetables, we also lose all the
inputs: labor, energy, water, fertilizer, etc., all the resources that
went into producing it. If the product has been harvested, cooled and
transported, we lose even more. Thus, the incentive for producers to
innovate to minimize waste and loss is significant. Our first
preference, and our goal, is that fresh produce reach its highest and
best use: feeding people.
The produce industry, undoubtedly, has a strong role to play, and
there is no end point--this is a journey, not a destination. In
general, produce waste happens closer to points of production in less-
developed countries and closer to points of consumption in developed
countries. This highlights the need for comprehensive solutions that
include consumers. Our call is to recognize waste points and do what we
can to reduce waste.
Almost 2 years ago (June 2013), the U.S. Department of Agriculture
(USDA) and the U.S. Environmental Protection Agency (EPA) launched the
U.S. Food Waste Challenge, calling on producers, processors,
manufacturers, retailers, communities, and other government agencies to
join the effort to reduce, recover, and recycle food waste. The
agencies noted that U.S. food waste is estimated at 30 to 40 percent of
the food supply. In 2010, they said about 133 billion pounds of food
from U.S. retail food stores, restaurants, and homes never made it into
people's stomachs. For produce, the numbers are even bleaker with
nearly half of the product being wasted worldwide according to a 2011
United Nations Food and Agriculture Organization (FAO) report.
This is not to suggest that producers are not continuously making
efforts to reduce waste because we are. Reducing waste on the farm and
at the packinghouses makes us better stewards of our land, our
communities and better businessmen and women. At L&M we treat produce
that is unmarketable as fresh to the consumer in a manner that fits
along a continuum of options. These options range from our first choice
for the unmarketable as fresh produce, which would be used for juicing
or dehydration all the way down to discing crops under to avoid adding
any further fixed costs that occur with harvesting and hopefully
gaining some residual benefit from any plant mass that we return to the
soil. To be clear, discing a crop is not what we want to see happen; as
a grower, I hope every fruit, leaf, and stem makes its way to
somebody's plate, but we also must be mindful of working efficiently to
reduce our use of resources like fuel, labor, and electricity if we
know the market opportunity for a crop is not present.
L&M uses several outlets for product that is not going to be sold
through the intended channel. We try to find alternative markets/uses
and we give it to charitable and food bank organizations. L&M donates
hundreds of thousands of pounds of healthful fresh produce every year
to charities, including Farmers Feeding Florida (Florida Association of
Food Banks), Feeding America, Operation Blessing, and a host of others.
We also move the product into the livestock feed supply chain. And,
we compost. All of this is very much in keeping with the EPA's Food
Recovery Hierarchy, something we embrace at L&M. From the producer
perspective, we typically have a number of options we can pursue well
before something has to go to the landfill. But we can do more, and in
my role as Chairman-elect for PMA I am excited about the innovative
approaches some of my colleagues are taking to further reduce food
waste.
In fact, most of you probably have one of the earliest examples of
innovation to reduce food waste in your refrigerator at home. Baby
carrots were born from a concern about waste. Misshapen carrots--not
suitable for the fresh market--were cut and shaped into the now-common
baby carrots. Baby carrots are 70% of all carrot sales, according to
The Washington Post, which noted in a January 13, 2016 article (https:/
/www.washingtonpost.com/news/wonk/wp/2016/01/13/no-one-understands-
baby-carrots/): ``It also helped lift the industry out of a rut. In
1987 . . . carrot consumption jumped by almost 30 percent, according to
data from the USDA. By 1997, the average American was eating roughly 14
pounds of carrots per year, 117 percent more than a decade earlier. The
baby carrot doubled carrot consumption.''
In another example from the production side, Gill Onions, an onion
producer and processor, installed an Advanced Energy Recovery System
(AERS) that converts 100% of its daily onion residuals, such as juice,
into renewable energy and cattle feed. The 300,000 pounds of onion
waste per year would have otherwise cost the company $400,000 per year
in disposal costs. Instead, Gill's Onions saves approximately $700,000/
year on energy costs, disposal costs, and has significantly reduced its
environmental footprint.
Recently, FreshPoint (Sysco) introduced its ``Unusual But Usable''
(http://www.freshpoint.com/ubu/) (UBUTM) program. Though
FreshPoint is a foodservice distributor, it partners with produce
growers, taking ``ugly'' or ``imperfect'' produce that might otherwise
go to waste and finds customers interested in utilizing it. This
reduces the waste caused by cosmetic imperfections and the customers
get the products they want at a more attractive price point. Our
company has also joined in this growing movement to help reduce food
waste by collaborating with a number of retail customers and providing
them with misshapen and cosmetically flawed products.
Many apple and pear processors take the residual solids left after
juicing and make them into pomace cakes that can be used to feed
livestock. This results in a considerable reduction in what goes to the
landfill and an additional supply chain outlet for the grower.
Of course, growers are continually looking for efficient and
impactful opportunities to supply fruits and vegetables that are not
destined for sale to charities. These efforts require significant
coordination and collaboration. An exciting and relatively new effort
is called ``Brighter Bites.'' The program engages growers, retailers,
foodservice distributors, and food banks to use fresh produce that
otherwise would go to waste and bring it to school children and their
families who might not otherwise be eating fresh produce regularly.
This program boosts fruit and vegetable consumption well beyond the
free deliveries. At school and during distributions, Brighter Bites
teaches families how to make the most of their produce by supporting
the implementation of in-class lessons for kids, providing nutrition
education handbooks for their parents, and sharing weekly tip sheets
and recipes for everyone to try at home together, in English and
Spanish. However, whether it be Brighter Bites or other charity supply
opportunities, all of this takes significant collaboration and
coordination throughout the supply chain-beginning with the producer.
Another way to reduce food waste is by making advances that
maintain the marketability of produce from the field to the retailer.
Advances in new varieties through traditional and modern breeding
practices can bring us traits that enhance a crop's ability to
withstand stresses like excessive heat or cold, low water availability
or too much water. New varieties can bring traits that increase fruits'
and vegetables' shelf life or make them more durable for the bumps and
scrapes that can happen during the transportation process. As USDA
moves forward with its updates to the biotechnology and other
regulations, we hope it considers all that these advances can bring to
the food supply chain and refrain from creating barriers and regulatory
burdens that could stifle innovation. Through biotech, we may be able
to produce varieties with traits that would reduce waste (uniform size/
shape, bruise resistance (like the biotech potato)) by having a higher
percentage of the crop grown being marketable as fresh. The more we can
market, the less we will waste.
Growers also need crop protection tools. Without the ability to
defend our crops from pests and diseases, the volume of produce waste
would quickly stack up. There has been much media attention to the
concerns about pollinators and the potential role of pesticides. In the
produce industry, we often require insect pollination for fruit
production, we work closely with the beekeepers and want to do all we
can to protect bees and other pollinators. At the same time, regulatory
decisions that would limit or eliminate access to crop protection tools
must balance risk and benefit and should be made on sound science
rather than emotion or tangential agendas. As a producer, we are
worried about some of the recent messaging from the EPA and the
direction the agency has gone in some instances.
A final area I would like to address is the importance of strong
industry and government partnership. We certainly need help on labor
issues. Many growers in parts of the U.S. have difficulty in finding
farm workers and produce is left to rot in the field. I recognize this
is a difficult issue to tackle politically, but we need Congress to
take action. We also need the Federal Government as a partner in the
area of research. USDA's intra- and extra-mural research programs have
done great things for our industry and specialty crops in general.
Through the Specialty Crop Research Initiative (SCRI) there have been
projects that deal with the development of mitigation strategies to
specific pests and diseases. For example, the collaborative efforts
through the SCRI, the National Institute of Food and Agriculture's
Integrated Pest Management Program, and the Agricultural Research
Service are helping producers of numerous fruits and vegetables address
the significant damage that can be caused by stinkbugs. These insects
cause cosmetic- and actual-damage to crops that often results in their
diversion from their intended use or total loss. In another example,
USDA funds are at work in North Carolina to eradicate Spotted
Lanternfly right now. This pest threatens millions in damage to grape,
stone fruit, and apple crops, among others. Mitigating pests and
diseases reduces damage to crops that can lead unmarketable crops and
waste.
Significantly reducing our nation's food waste is a challenging
endeavor throughout the supply chain. Fortunately, we have options, and
those options and opportunities continue to grow due to the innovating
people working in agriculture and this country's entrepreneurial
spirit. I am here to share with you that L&M and the Produce Marketing
Association stand ready to partner with you and my fellow witnesses
here today to move us closer to a zero waste system.
I would like to thank you for your attention today on these
critical issues. Thank you again, Mr. Chairman, for holding this
important hearing and this Committee's attention to these critical
issues. I look forward to working with you in the future.
Attachment
Baby carrots are not baby carrots
Wonkblog (http://www.washingtonpost.com/news/wonk/)
By Roberto A. Ferdman (http://www.washingtonpost.com/people/roberto-a-
ferdman) January 13, 2016
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
(Source: Flikr/durera_toujours (https://www.flickr.com/
photos/derera_toujours/))
Ten years ago, NPR opened a radio news segment with a few words
about a man few knew. Mike Yurosek, a carrot farmer from California,
had passed away earlier that year. The homage was short--it lasted no
more than 30 seconds--but for many of those listening, it must have
been eye-opening.
``He actually invented these things,'' Stephen Miller, then an
obituary writer with the New York Sun said, holding a bag of baby
carrots. ``Not many people know that baby carrots don't grow this
way.''
There are small carrots, which uppity restaurants serve as
appetizers or alongside entrees, that sprout from the ground. But those
look like miniature versions of the much larger vegetable. The smooth,
snack-sized tubes that have come to define carrot consumption in the
United States are something different. They're milled, sculpted from
the rough, soiled, mangled things we call carrots, and they serve as an
example, though perhaps not a terribly grave one, of how disconnected
we have all become from the production of our food.
``The majority of consumers have no clue what they're eating or how
it's produced,'' said David Just, a professor of behavioral economics
at Cornell who studies consumer food choices. ``There are so many
people who honestly believe there are baby carrot farmers out there who
grow these baby carrots that pop out of the ground and are perfectly
convenient and smooth.''
It's hard to overstate the ingenuity of the baby carrot, one of the
simplest and yet most influential innovations in vegetable history. The
little carrot sculptures (or baby cut carrots, as they're sometimes
called to clarify) not only revived a once-struggling carrot industry,
but they also helped both curb waste on the farm and sell the Vitamin
A-filled vegetables at the supermarkets.
How Different Fruits and Vegetables Used To Be
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
http://www.washingtonpost.com/video/c/embed/3ab3e70c-1c3d-
11e6-82c2-a7dcb313287d.*
---------------------------------------------------------------------------
* Editor's note: the video has been retained in Committee files.
---------------------------------------------------------------------------
Humans have been genetically manipulating fruits and
vegetables for thousands of years through selective
cultivation. Once we started cultivating wild plants, fruits
and vegetables got a lot more colorful. (Daron Taylor, Dani
Johnson, Osman Malik/The Washington Post)
The Birth of the Baby Carrot
The baby carrot, like so many inventions before it, was birthed by
necessity.
In the early 1980s, the carrot business was stagnant and wasteful.
Growing seasons were long, and more than half of what farmers grew was
ugly and unfit for grocery shelves. But in 1986, Yurosek, itching for a
way to make use of all the misshapen carrots, tried something new.
Instead of tossing them out, he carved them into something more
palatable.
At first, Yurosek used a potato peeler, which didn't quite work
because the process was too laborious. But then he bought an industrial
green-bean cutter. The machine cut the carrots into uniform 2" pieces,
the standard baby carrot size that persists today.
When Mike Yurosek & Sons, Yurosek's now-defunct California company,
delivered his next batch to Vons, a local grocery chain, he included a
bag of the new creation. He suspected he was on to something but hardly
anticipated such an enthusiastic response.
``I said, `I'm sending you some carrots to see what you think,' ''
Yurosek recounted in a 2004 interview with USA Today (http://
usatoday30.usatoday.com/life/lifestyle/2004-08-11-baby-carrot_x.htm).
``Next day they called and said, `We only want those.' ''
The Carrot Savior
Vons wasn't the only one impressed. Grocers, distributors, carrot
buyers, and, most importantly, some of Yurosek's most formidable
competition took notice. In the years that followed, baby carrots
ballooned into big business, nudging the biggest carrot producers in
the country to join in and feed the frenzy.
``When we realized this wasn't a fad, this was real, everybody
jumped on the bandwagon,'' Tim McCorkle, director of sales for
Bolthouse Farms, one of the nation's leading carrot producers, recalled
in a 1998 interview with the Chicago Sun-Times. ``This idea inverted
the whole carrot-growing business.''
It also helped lift the industry out of a rut. In 1987, the year
after Yurosek's discovery, carrot consumption jumped by almost 30
percent, according to data from the USDA. By 1997, the average American
was eating roughly 14 pounds of carrots per year, 117 percent more than
a decade earlier. The baby carrot doubled carrot consumption.
The Baby Carrot Boom
Per Capita Consumption of Carrots in the 12 Years After the Baby Carrot
Was Invented
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: USDA.
WAPO.ST/WONKBLOG.
Today, baby carrots dominate the carrot industry. The packaged
orange snacks are now responsible for almost 70 percent of all carrot
sales.
A 2007 report (http://www.ers.usda.gov/media/198875/
vgs31901_1_.pdf) by the USDA detailed many ways in which baby carrots
have morphed the entire carrot landscape in the United States.
The development and rapid consumer acceptance of packaged fresh-cut
carrot products during the 1990s has helped the carrot industry evolve
from a supplier of low-value bulk products to marketer of relatively
upscale value added products . . . fresh-cut carrot products have been
the fastest growing segment of the carrot industry since the early
1990s. Within the $1.3 billion fresh-cut vegetable category, carrots
account for the largest share (about half) of supermarket sales,
followed distantly by potatoes, celery, and others.
A Too Perfect Snack
Of all the reasons for the rise of America's favorite carrot, there
is likely nothing that has propelled baby carrots quite like their
convenience. The quality was important to Americans in the 1980s, and
it's even more precious now.
As people have found themselves with less time to sit down at
restaurants or even cook at home, (http://www.washingtonpost.com/blogs/
wonkblog/wp/2015/03/05/the-slow-death-of-the-home-cooked-meal/)
convenience has guided all sorts of decisions about food, especially
when there is an option that requires little more than opening a
packet.
``Baby carrots have transformed the way people think about
carrots,'' said Just, the behavioral food economist. ``The fact that
you don't have to peel them, that it involves so little prep, is key.''
``Baby carrots are also small enough to fit in your mouth,'' he
added. ``They're bite-sized and ready to be eaten. They're easy.''
The fuzziness about the baby carrot's origins may have also helped
their success.
Recent marketing efforts to further boost their popularity have
positioned them as an alternative to junk food, rather than a different
way to eat carrots. The packaging was changed to mirror that used for
potato chips. ``Eat 'Em Like Junk Food,'' the 2010 TV, print, and
digital ads suggested, likening the vegetable vehicle to Doritos and
other snack foods.
The campaign was a hit, boosting sales by 13 (https://hbr.org/2015/
10/the-ceo-of-bolthouse-farms-on-making-carrots-cool) percent,
succeeding, at least in part, by further disassociating baby carrots
from their parent.
``This is a common theme now,'' said Just. ``We are more and more
disconnected from what we eat.''
The truth is that it probably doesn't matter all too much whether
someone understands that the smooth little 2" carrot cut-outs they're
devouring didn't grow in the ground. Just maintains that knowing this
probably wouldn't change anyone's consumption patterns, save perhaps
for a small group of hardcore naturalists, since the processing
involved is comparatively minimal.
But that doesn't forgive the disconnect. Baby carrots, the ones
that don't grow in the ground, have done more than simply boost the
sales of carrot producers around the country--they have turned the
carrot industry into a much more efficient and much less wasteful
endeavor.
At a time when most ugly vegetables go to waste in the United
States,
(https://www.washingtonpost.com/opinions/eat-the-crooked-carrot-save-
the-world/2015/03/13/d6899452-c7fb-11e4-a199-6cb5e63819d2_story.html)
ugly carrots are carved and sold at a premium. What's more, moving the
peeling process to the factory has allowed the carrot industry to make
use of the scraps that used to end up in people's trash bins.
``It's something pretty amazing about baby carrots that I'm sure
people don't appreciate,'' Just lamented. ``The same people probably
think selecting only for regular carrots is more environmentally
friendly.''
The Chairman. Thank you, Mr. Oxford.
Ms. Stasz, did I butcher your name badly?
Ms. Stasz. It's Stasz, like Daz.
The Chairman. Stasz. Stasz. Yes, ma'am. You are recognized
for 5 minutes.
STATEMENT OF MEGHAN B. STASZ, SENIOR DIRECTOR,
SUSTAINABILITY, GROCERY MANUFACTURERS
ASSOCIATION, WASHINGTON, D.C.; ON BEHALF OF FOOD WASTE
REDUCTION ALLIANCE
Ms. Stasz. Chairman Conaway, Ranking Member Peterson, and
Members of the Committee, thank you for giving me the
opportunity to participate this morning on this important
issue.
My name is Meghan Stasz, I am the Senior Director of
Sustainability for the Grocery Manufacturers Association,
representing the food, beverage and consumer products industry.
Today I am speaking on behalf of the Food Waste Reduction
Alliance, an initiative of 30 leading companies, formed in 2011
by GMA, the Food Marketing Institute, and the National
Restaurant Association. FWRA commends the Committee for holding
this hearing and for your interest in finding solutions.
I will make four key points today. First, we know that food
waste is a very real problem, and we have a national goal of
halving it by 2030. Everyone has a role to play to get there.
Second, the food industry has already stepped forward and
made considerable process. FWRA brings together manufacturers,
retailers, and food service companies around three goals:
reduce food waste generated, increase food donated, and recycle
unavoidable food waste. GMA's members have been working hard to
minimize waste as well. In 2014, our companies recycled nearly
94 percent of the food waste from manufacturing, and in 2015,
donated over 800 million pounds of food.
Third, we know that more needs to be done, and our industry
is taking new steps. GMA and FMI are taking the lead on date
labeling and reducing consumer confusion. Date labeling is
important and we are addressing it.
But context is important, and that is my fourth point. Date
labeling is not the solution to food waste. There is no silver
bullet solution here. It needs to be tackled in a range of
ways.
And industry can't solve this problem alone. Consumers, as
we know, are responsible for 44 percent of the food waste in
landfills. If we are going to make a serious dent, we need to
help consumers. But reducing food waste is a priority. That is
why we created FWRA. Co-chaired by ConAgra, Sodexo, and
Wegman's, we have four areas of focus: assessment, best
practices, communications, and policy. From this work, we have
seen really tremendous innovations. ConAgra, who makes Marie
Callender's potpies, found they could change the way they were
placing pie dough in a pan, and reduce the amount that needed
to be trimmed off the edge. This change saved ConAgra over 230
tons of pie dough in a year. That is food waste that never
happened.
Retailers increased food donation by over a billion pounds
in the last decade. Kroger is piloting an on-site digester to
turn their food waste into energy. Restaurants are working to
reduce waste. Yum! Brands alone donated over 184 million pounds
of food since 1992.
But let me talk a little bit about date labeling. In
January, GMA and FMI's boards resolved to work to address
consumer confusion around date labeling, and a working group of
25 companies met here last week. A national standard is crucial
to providing consumers with the clarity they need. Forty states
have laws regulating date labeling. This patchwork of
regulations on some products in some parts of the country is
certainly contributing to confusion.
But more will need to be done beyond date labeling. Date
labels can tackle only about eight percent of the total overall
food waste that is going to landfill. This doesn't mean we
should do nothing, but clearly, more solutions are needed.
And businesses are facing challenges to food waste. Supply
chain challenges, for example. Food safety is paramount, so if
a local food bank has maxed out its refrigeration or
refrigerated truck space, often food winds up in a landfill.
Similarly, diverting food waste away from landfills requires
infrastructure that makes sense. Food waste is heavy, and it is
wet, and it requires frequent pickup. If you then have to put
that material in a diesel truck and drive it hundreds of miles
to the nearest facility, you have lost your environmental
benefit. It also has to make business sense. AD can cost
millions to build and operate, and composting facilities can
face permitting challenges. So even when a company thinks they
have found a solution, the composting facility can be shut
down, the AD can go out of business, and the business is back
to square one.
We are also seeing conflicting regulations at the Federal,
state, and municipal level. In some states, food waste is
banned from landfill, yet permitting is so onerous that there
is no infrastructure.
Finally, consumers: They are the single largest contributor
of food waste to landfill. NRDC's terrific Save the Food
Campaign is a great example of what we will need to see to
really move the needle here.
So in closing, while challenges do exist, the opportunity
is enormous, and we really look forward to working with the
Committee, our industry partners, and others to reduce food
waste all throughout the supply chain.
Thank you for your time.
[The prepared statement of Ms. Stasz follows:]
Prepared Statement of Meghan B. Stasz, Senior Director, Sustainability,
Grocery Manufacturers Association, Washington, D.C.
Chairman Conaway, Ranking Member Peterson, and Members of the
Committee, thank you for giving me the opportunity to participate in
this morning's hearing on this important issue. My name is Meghan
Stasz, I am the Senior Director of Sustainability for the Grocery
Manufacturers Association (GMA), which represents the food, beverage
and consumer products industry. I am speaking today on behalf of the
Food Waste Reduction Alliance (FWRA), an initiative of 30 leading
companies formed in 2011 by the Grocery Manufacturers Association, the
Food Marketing Institute (FMI) and the National Restaurant Association.
The Food Waste Reduction Alliance commends the Committee for
holding this hearing and for your interest in finding solutions to this
problem.
I would like to make four key points in my testimony today:
First, we know that food waste is a very real problem and the U.S.
has announced a national goal of cutting food waste in half by 2030.
Everyone has a role to play in reducing food waste and reaching this
ambitious national goal.
Second, the food industry has already stepped forward and made
considerable progress in reducing food waste. The founding of the Food
Waste Reduction Alliance in 2011 brought together manufacturers,
retailers, restaurants and food service companies. We work across
sectors to identify sources of food waste, increase the amount of food
sent to food banks and decrease what is sent to landfills, and help
other food companies find ways they can make an impact.
GMA member companies have been working hard to minimize food waste
by reducing the amount of waste being sent to landfills and donating
food to those in need. In 2014, our companies recycled nearly 94
percent of the food waste generated from manufacturing and in 2015
donated over 800 million pounds of food to food banks.
Third, we know that more needs to be done, and our industry is
taking new steps. GMA and FMI are taking the lead on date labeling and
reducing consumer confusion that can lead to food waste. Date labeling
is important, and we're addressing it.
But context is important, and that's my fourth point: Date labeling
is not The solution to the food waste issue--in fact, it is estimated
to account for some household food waste and therefore a small
percentage of total food waste to landfill. There is no silver bullet
solution for food waste. It needs to be tackled in a range of ways, and
everyone has a role to play.
Industry cannot solve this problem alone. Consumers are responsible
for 44% of food waste sent to landfills. If we're going to make a
serious dent in food waste as a nation, we need to find ways to help
consumers reduce waste.
About Food Waste
Food waste is the single largest category of material in U.S.
landfills, according to the U.S. EPA. Experts estimate that as much as
30-40% of the food that's produced in this country is going to waste.
This not only represents a waste of the natural resources used to grow
and transport that food, but also a missed opportunity to address the
challenge of food insecurity in America. Reducing food waste is good
for the environment, businesses, and food-insecure Americans.
Food waste is a priority issue to the food industry. That's why we
created the cross-industry Food Waste Reduction Alliance (FWRA) in
2011. FWRA is an initiative of GMA, the Food Marketing Institute
(representing food retailers), and the National Restaurant Association
(representing the foodservice industry) and brings together 30 leading
companies from these sectors to address the challenge of food waste in
the supply chain. Currently co-chaired by ConAgra Foods, Sodexo, and
Wegman's Supermarkets, FWRA has three overall goals: reduce the amount
of food waste being generated, recover food to donate to those in need,
and recycle unavoidable food waste (such as plate waste or vegetable
peels), keeping it out of landfills.
FWRA has four areas of focus: assessment, best practices,
communications, and policy. Every other year the member companies of
each association are surveyed to get a better understanding on food
waste and food donation. The resulting data helps FWRA identify what is
working for businesses, what companies are doing to reduce waste, and
what barriers are impeding increased donation or diversion from
landfill. These assessments help inform partnerships and innovations to
reduce waste in this section of the supply chain.
To date, FWRA has released two best practices guides. The guides
are written by companies for companies and identify clear methods to
get started on a food waste or food donation program or take existing
programs to the next level. The most recent guide, released in the fall
of 2015, includes over 30 case studies on companies' successes along
EPA's food recovery hierarchy.
EPA Food Recovery Hierarchy
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: U.S. EPA https://www.epa.gov/sustainable-management-
food/food-recovery-hierarchy.
Finally, FWRA looks at public policies that might help overcome
existing barriers to the Alliance's goals. It works to understand where
there are cost effective and environmentally feasible infrastructure
options in the U.S. and what existing public policies are in place to
have created such an environment. FWRA is also looking at the varying
state and municipal regulations to understand the impact on business
and to the overall goal of reducing the amount of material sent to
landfill.
Let me take a moment to describe the work of each of the sectors in
reducing food waste.
Manufacturers and Food Waste
The manufacturing sector is committed to reducing waste. Per the
results of the most recent FWRA assessment, manufacturers already
recycle nearly 94% of their food waste. Due to the volume and
consistency of food waste from manufacturing operations, the vast
majority of that waste goes to animal feed, a top-tier solution
according to the food recovery hierarchy. For the waste that is left
over, the most common barrier to keeping that material out of landfill
was lack of infrastructure. Additionally, thanks to best practices and
information sharing of the FWRA, manufacturers are partnering with
other food businesses to share the cost and operation of solutions like
anaerobic digestion (AD), which turns food waste into energy.
Manufacturers are a significant source of food donation. According
to Feeding America, the largest network of food banks in the U.S.,
manufacturers donated 808 million pounds of food in 2015. Manufacturers
and food banks are finding new and innovative ways to ensure safe,
nutritious food gets to those in need, going beyond traditional
donation strategies. For example, Campbell's Soup Company partnered
with the Food Bank of South Jersey to turn excess peaches into peach
salsa that was made available to food bank customers. ConAgra Foods
found a way to rescue trimmed ends from their meat snacks, donating 3.1
million pounds of much needed protein to a local food bank since
starting the program in June 2012. DelMonte Foods is partnering with
Feeding America's Grocery Program to recover safe, edible and
nutritious product. In just the past 3 years, the company converted 3.5
million pounds of what would have been unused food into a viable
product for Feeding America. Additionally, food banks and manufacturers
are working together to find ways to re-label mislabeled product or
package bulk foods or ingredients into appropriate sizes, maintaining
food safety and labeling protocols.
Retailers and Food Waste
The food retail industry has made enormous strides over the last
decade in reducing the generation of food waste in stores and across
the entire distribution chain. Using tools as high-tech as big data
analytics and as low-tech as simply dumping out a garbage bin on a tarp
and inventorying it, the industry has been able to develop and
implement strategies that streamline the supply chain and significantly
reduce the amount of waste being created.
Despite these improvements, the retail industry continues to take
the issue of food waste very seriously. As it stands today, for every
$1,000 in revenue a store generates almost 10 pounds of food waste is
created. Faced with this kind of challenge, the food retail industry is
continuing to adopt new strategies for reducing waste and prides itself
on approaching the issue pragmatically, with a focus on feeding
families. As a case in point, one of the primary food recovery programs
for food retailers focuses on donations to food banks. In 2006, food
retailers donated 140 million pounds of food to food banks. While
impressive, through improved collaborations with our friends at Feeding
America, this past year, grocers donated more than 1.4 billion pounds
of food. That's a dramatic improvement, but there still remains room
for growth.
The food retail industry has also taken a number of steps to
address food waste at the consumer level. For example, FMI has
partnered with USDA and Cornell University to create the FoodKeeper
(http://www.fmi.org/industry-topics/consumer-affairs/food-keeper-food-
storage-database), an online database and app which began as a brief
pamphlet in 1994. Today, FoodKeeper offers consumers guidance on how to
safely store and handle thousands of food products to help maximize
quality and freshness and minimize unnecessary waste.
Date Labeling
The GMA and FMI Boards of Directors resolved in January 2016 to
work together and with other industry groups to reduce consumer
confusion around date labeling, a commonly cited contributor to food
waste.
I think everyone can agree that there is consumer confusion around
date labels such as the ``sell by,'' ``use by'' and ``best by'' phrases
associated with a date on food or consumer products packaging. These
dates and phrases are a communication from the manufacturer to the
retailer regarding stocking or rotating products or to the consumer to
convey information about the quality of the product. However, research
shows that consumers misinterpret these dates and, as a result, may be
disposing of food unnecessarily. It can also result in donated food
being thrown away due to unintended consequences of state laws or
confusion by food bank employees.
GMA and FMI believe a national date labeling standard is crucial in
providing consumers with the clarity they need. According to the
Harvard Food Law and Policy Clinic, there are currently forty U.S.
states with existing laws regulating food date labeling. This patchwork
of regulations on some products in some parts of the country certainly
contributes to consumer confusion. Codex, the international labeling
standards organization, is also working to address this issue and GMA
supports a harmonized approach. We are committed to giving consumers
the information they need to make informed decisions regarding the
safety and quality of the products they purchase and consume.
More will need to be done to solve the food waste challenge beyond
date labeling, however. It's estimated that consumers account for 44%
of U.S. food waste to landfill. Studies by groups like the Harvard Law
and Policy Clinic show that date label confusion is cause for a
percentage of that household food waste. This means that date labels
can tackle only some consumer waste and so potentially have a small
impact on the total overall amount of food waste to landfill in the
U.S. Clearly more solutions are needed and there are opportunities for
everyone to help us reach the national 50% reduction goal by 2030.
Restaurant Industry and Food Waste
As a founding member of the FWRA and the leading business
association for the restaurant and foodservice industry, the National
Restaurant Association works to educate its members about the
opportunity to protect the environment and help the communities they
serve by reducing food waste in their operations.
For example, the NRA's Conserve program is an educational resource
that provides operators the tools and information needed to divert food
waste from landfills. The Conserve website offers practical advice such
as how to start a composting program or how to inventory and track
waste, which can lead to cost savings and improve a restaurant's
environmental footprint.
Restaurants are also the cornerstones of their communities and have
donated nutritious, wholesome food to charities and food banks for
decades. For example, Yum! Brands, the parent company of KFC, Pizza
Hut, and Taco Bell, has been donating food since 1992. Since that time,
they have donated over 184 million pounds of food, estimated to be
enough to feed 42,000 families of four, three meals a day, for an
entire year. Likewise, Darden Restaurants, which operates brands such
as Olive Garden and Longhorn Steakhouse, has donated more than 91
million pounds of food, totaling more than 75 million meals. Starbucks
also recently set a goal to rescue 100 percent of food available to
donate, including breakfast sandwiches, Paninis, Bistro Boxes and
salads from all of their U.S. company-operated stores.
Restaurants are unique in a number of ways that create specific
challenges for waste reduction. For example, small businesses dominate
the industry with more than seven out of ten eating and drinking
establishments being single-unit operations. In addition, the
restaurant business model produces relatively low pre-tax profit
margins of only four to six percent which means that even small
increases in costs for efforts like waste reduction can often be
burdensome to these small businesses and independent operators.
Challenges Remain To Reduce Waste
Collecting data is challenging, but experts agree that food waste
happens all along the supply chain and for different reasons. A study
conducted by the nonprofit BSR for FWRA finds the following breakdown
of food waste to landfill in the U.S.: Households account for 44% of
the waste, industrial sources like manufacturers is 2%, grocery stores
is 11%, full service restaurants is 20%, quick service restaurants is
13%, and institutions such as hospitals and schools accounts for the
final 10% of food waste to landfill domestically.
Sources of Food Waste to Landfill in the U.S.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: FWRA Tier 1 Assessment, 2012
www.foodwastealliance.org.
In light of these figures, the FWRA works to raise awareness of
this issue in the food industry and find solutions that are in-line
with the EPA's food recovery hierarchy.
Lack of Infrastructure
Food waste happens all along the supply chain. So there is no
silver-bullet solution to this problem. Everyone has a role to play if
we are to meet the nation's goal of a 50% reduction of food waste to
landfill by 2030. The food industry is addressing food waste in our
section of the supply chain via FWRA, contributing new data, sharing
best practices, partnering with stakeholders, and identifying effective
public policy.
Supply chain challenges are preventing companies from donating food
and diverting food waste. FWRA's 2014 Assessment of food manufacturers,
retailers, and restaurants found that transportation constraints is a
top barrier to donation for 63% of manufacturers and 78% of both small
and large restaurant operations.
Another barrier was storage and refrigeration at food banks, which
was identified as a major barrier by 50% of manufacturers, 50% of
retailers, 67% of small restaurants and 56% of large restaurants. Food
safety is paramount and so if a local food bank does not have enough
refrigeration space or properly equipped trucks for transporting
donated food, that food often ends up discarded.
Similarly, successfully diverting unavoidable waste away from
landfill requires infrastructure options that are geographically and
operationally feasible. FWRA's 2014 Assessment found that 70% of
manufacturers, 92% of retailers, 83% of small restaurants and 100% of
large restaurants surveyed listed ``insufficient recycling options'' as
their number one barrier to diverting food waste from landfill.
Currently the lack of infrastructure options is a significant hurdle to
keeping food waste out of landfill for businesses around the country.
The nearest composting facility or anaerobic digester may be
several hundreds of miles away and/or charging significantly more per
ton than landfills. Anaerobic digesters can cost millions of dollars to
build and operate and composting facilities can face permitting
challenges from municipal or state regulators. Also, securing a
reliable waste hauler to transport the material, which is very heavy
and wet, and pick up that waste can frequently be either cost
prohibitive or simply unavailable. Even in places where commercial
generators of waste are required by law to divert their food waste away
from landfill, sufficient infrastructure options may not exist.
Finally, companies face challenges to food waste reduction that are
specific to the type of food business operation. For example,
restaurants are unique in a number of ways that create specific
challenges for waste reduction. Management and building constraints
often exist for restaurants. A restaurant might not own the building in
which their restaurant is located and therefore, might not have control
over their waste management options. Finally, waste management
decisions are often local in nature and the franchisee model of many
restaurant companies means that the parent company does not have
control over their franchisees' local waste decisions.
Regulatory Challenges
Strengthening understanding of and support for existing regulations
that facilitate donation, such as the Bill Emerson Good Samaritan Act,
is critical to increasing donation from food businesses. The 2014 FWRA
Assessment found that 50% of manufacturers and 67% of retailers and
small and large restaurants cited liability concerns as a top reason
for not donating more food. The Good Samaritan Act provides those
liability protections, but more can be done to educate businesses and
state and local stakeholders as to those protections.
Tax incentives for donation help increase donations further and
more can be done here as well. We were pleased that Congress recently
signed into law the PATH Act, which expands the food donation tax
deduction that allows companies to take an enhanced deduction when
donating food. This expanded provision will also encourage more
businesses, especially small businesses, to donate to those in need by
making the tax deduction permanently available for non-C corporations.
Conflicting regulations at the Federal, state, and municipal level
hinders successful food waste reduction and donation. In the FWRA 2014
Assessment, 50% of manufacturers and 56% of small and large restaurant
companies identified regulation as a top barrier to donating more food.
These regulations can often have unintended consequences. For example,
some U.S. states restrict the sale or donation of food after its
quality date, which can result in safe, nutritious food being sent to
landfill. In other states, food waste is banned from landfill, yet
existing permitting at the county or municipal level for compost or
anaerobic digestion facilities is so onerous that infrastructure does
not exist.
Role of Consumers
Per the FWRA study by the nonprofit BSR, consumers account for 44%
of the food waste sent to landfill in the U.S., making this group the
single largest contributor. The food industry is dedicated to reducing
waste in our operations and finding new opportunities for donation, but
the challenge of in-home food waste remains. This is not a challenge
industry can solve on its own. Efforts such as streamlining date
labeling will help, but much more will need to be done to really
address this category of waste. One of the challenges is lack of
consumer data. What makes up consumer's food waste and what drives that
group to dispose of food or how those behaviors might differ by
household size, age, or geographic location (urban, suburban, rural) is
unknown. More information is needed to identify the causes of household
food waste and therefore the most effective solutions.
Questions to Consider
The food industry is a leader in reducing food waste sent to
landfill and we take our role in working toward meeting the U.S.'s 50%
reduction goal seriously. Based on this expertise, some common
questions arise for the Committee to consider:
How do we better coordinate relevant agencies of jurisdiction?
The food supply chain is a complex system. The U.S. is a global
leader in food safety and supply chain management, providing consumers
with affordable, nutritious products at an incredible scale. This
complex and successful system, however, means that many agencies and
stakeholders are involved or have jurisdiction over the myriad parts of
the supply chain where food waste or food donation occur. Better
coordinating these agencies at the Federal, state, and local level will
help develop even stronger donation programs and infrastructure
options.
What policies are working?
FWRA is working to understand where in the U.S. there is a range of
infrastructure options for commercial generators of food waste and the
reasons for that infrastructure. Identifying what public policies are
working at all levels of government will help all those involved in
this effort support and replicate those policies in other parts of the
country. As mentioned previously, there is no silver bullet and
effective solutions vary even from business to business, but
identifying what policies levers can be pulled to encourage innovation
and find value in what was considered waste is a win for the
environment, society, and business.
How do we improve infrastructure options?
For businesses, food waste often winds up in a landfill because
there is no alternative or existing alternatives are environmentally or
financially prohibitive. Encouraging entrepreneurs to find solutions to
food waste or expand successful businesses addressing this challenge
will benefit all actors in the food supply chain. At the FMI-GMA Global
Sustainability Summit in 2015, the associations partnered with USDA to
host a Food Waste Start Up Challenge. That event showcased six
entrepreneurs, selected by a panel of experts, with businesses
addressing waste via methods ranging from apps that suggest recipes for
leftovers to new ways to sell ``ugly'' produce to composting
innovations. As interest in and awareness of this issue grows, so will
the power of innovation. We can work together to support these
innovative solutions as well as traditional methods of diversion like
composting and AD.
How do we educate consumers?
As referenced earlier, consumers are the single largest contributor
of food waste to landfill in the U.S. Educating consumers about the
issue of food waste, their role, and what they can do at home to reduce
waste and save money will take cooperative and sustained efforts from a
range of partners. The Natural Resource Defense Council's Save the Food
campaign is an excellent example of an existing effort that can make a
difference in consumer awareness and behavior. More efforts like these
are needed to truly move the needle on household food waste.
While challenges do exist, the opportunity presented by food waste
reduction to lessen our environmental footprint and help address hunger
is enormous. We look forward to working with the Committee, our
industry partners, and others to take advantage of that opportunity and
work to reduce food waste throughout the food industry.
The Chairman. Thank you, Ms. Stasz.
Ms. Aviv, 5 minutes.
STATEMENT OF DIANA AVIV, CHIEF EXECUTIVE OFFICER, FEEDING
AMERICA, CHICAGO, IL
Ms. Aviv. Mr. Chairman, Ranking Member Peterson, and
Members of the Committee, I am honored to testify before you
today.
Each year we waste 70 billion pounds of food suitable for
donation. At the same time, people in every community across
our nation struggle with food insecurity. To help end hunger,
Feeding America works with 198 food banks, 60,000 local food
agencies, and 148 corporate partners. Together, we provide 4.5
billion pounds of food to more than 46 million Americans each
year, including 12 million children and seven million seniors.
Of the food we distribute, more than \1/2\ of it, which is
about 2.6 billion pounds, would otherwise go to landfill. And
yet this still does not meet the need. Significant gaps remain
between the food low-income people need, and the resources that
they have to buy it. Diverting excess food to donation provides
a triple benefit. It reduces hunger, it protects our
environment, and it helps businesses with sustainability.
But perishable food must move safely and quickly from the
donor to the people who need it. Doing so requires innovative
practices, technological knowhow, as well as costly physical
infrastructure, like refrigerated trucks and cold storage
capacity.
I want to share with you two examples of innovative
platforms that we have developed to divert more excess food to
donation. Produce Matchmaker is an online portal and ordering
system that helps produce donors connect with food banks. It is
available 24 hours a day, and it allows food banks to review
offers and accept donations in real time, moving produce to
hungry families more quickly. Food banks can order produce
donations by the pallet, rather than the truckload. This saves
transportation costs and allows cost-effective rescue of
smaller amounts of produce. Produce Matchmaker is already being
used by more than 150 food banks and state associations in
Fiscal Year 2016, and connected 125 million pounds of produce
with food banks across 40 states. It will help us recover and
distribute significant amounts of produce that is currently
wasted.
MealConnect is our new online platform to facilitate the
easy, safe, and fast donation of fresh food from grocery and
convenience stores and food service locations. Donors engage
online when they have extra product to donate, and are matched
to their local food bank. It is the only donation-matching
software that fully vets both donors and recipients to ensure
that proper food safety protocols are followed throughout the
process. Using MealConnect on a smartphone or PC simplifies the
logistics of matching excess food with a nearby pantry that can
accept it. This is local food rescue in the sharing economy.
MealConnect is enabling Starbucks to partner with Feeding
America to launch FoodShare, which will provide an additional
50 million meals over the next 5 years as the program rolls out
to 7,600 Starbucks stores across the U.S.
But Produce Matchmaker and MealConnect won't solve the
problem alone. Additional investment in technology and physical
infrastructure are needed.
The improvement to the enhanced tax deduction for donated
food enacted last December will also have a significant impact
on food recovery. By expanding the deduction to include farmers
and growers, and making it permanent for all businesses, we
expect that nearly one billion additional meals that would have
been wasted, now will be donated. Thanks to you and your
colleagues for passing this critical legislation. Without it,
we would be worse off.
To continue increasing food recovery, additional
investments to identify and scale promising program models are
definitely required. Policy changes such as standardizing date
labels on food, and providing USDA grants to small businesses
and nonprofits to facilitate food recovery would also have a
significant impact. As you examine this critical issue and
begin preparing for the next farm bill, we stand ready to work
with you. I encourage you also to visit your local food bank to
learn about food recovery within your district.
And thank you very much for the opportunity to testify.
[The prepared statement of Ms. Aviv follows:]
Prepared Statement of Diana Aviv, Chief Executive Officer, Feeding
America, Chicago, IL
Mr. Chairman, Ranking Member Peterson, and Members of the
Committee, it is an honor to be invited to testify before you today and
submit testimony for the record on the issue of food waste. Food waste
is a serious problem in America, with 70 billion pounds of food wasted
each year across the food industry, a number that climbs to 133 billion
pounds once consumer waste is included in that figure.\1\ I commend the
Committee for focusing on this important issue and am honored to
discuss how the Feeding America network safely rescues over 2.6 billion
pounds of food a year to feed those needing food assistance.
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\1\ Buzby, Jean C., Wells, Hodan F. and Hyman, Jeffrey. The
Estimated Amount, Value, and Calories of Postharvest Food Losses at the
Retail and Consumer Levels in the United States. USDA Economic Research
Service, February 2014.
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The amount of food wasted in America each year is staggering. At
the same time 48 million Americans--one in seven people in across our
country--are food-insecure.\2\ Recovering excess food that would
otherwise be wasted for donation is a national imperative. It is also
provides a triple benefit reducing hunger, protecting our environment
and helping businesses meet sustainability goals. Feeding America works
with our network of 198 food bank members, their 60,000 local food
agencies, and 148 national corporate partners to provide 4.5 billion
pounds of food, or 3.7 billion meals each year, and food recovery is an
essential part of our work. More than half of the food we distribute,
over 2.6 billion pounds in 2015, would otherwise have gone to waste
streams or landfill.
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\2\ Jensen, A., Rabbitt, M., Gregory, C., Singh, A. Household Food
Insecurity in the United States in 2014. USDA Economic Research
Service, September 2015.
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The food our network distributes comes from a variety of sources,
including Federal nutrition programs like The Emergency Food Assistance
Program (TEFAP) and the Commodity Supplemental Food Program (CSFP), as
well as from food rescued from manufacturing, retail, food service, and
farmers and growers.
In Feeding America's Fiscal Year 2015, the 4.5 billion pounds of
food distributed by our network came from:
17% Federal Commodities (TEFAP and CSFP).
33% Retail Food Donations.
21% Manufacturing Donations.
16% Fresh Produce Donations and Purchases.
13% Other Purchased Food.
Increasing the amount of excess food diverted from waste to
donation must be a national priority. The stakes could not be higher.
According to research conducted by Feeding America, there is a
significant meal gap, or difference between the food low-income people
need and the resources they have to buy that food. Map the Meal Gap
2016 \3\ shows that there are over eight billion meals missing from the
tables of low income Americans per year. Juxtapose that need against
the 70 billion pounds of food wasted each year from farm to consumer
facing businesses like supermarkets and restaurants and it is clear
that diverting food from waste to donation is both a national
imperative and a critical resource in the fight against hunger that we
need to fully utilize.
---------------------------------------------------------------------------
\3\ Map the Meal Gap looks at food insecurity by county across
America and the amount of meals missing from food-insecure Americans
households.
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While one might assume that food insecurity is decreasing
significantly as the economy continues to recover and national
unemployment has decreased to about five percent, this is not the case
and millions of families continue to struggle to get back on their feet
in the wake of the recession. The Bureau of Labor Statistic's broader
alternative measure of unemployment, the U-6, also includes people
working part-time for economic reasons and those marginally attached to
the workforce. It reflects a more comprehensive picture of the
employment environment facing many low-income workers and remains at
about 9.7 percent.\4\ Many American workers are working part-time due
to limited hours offered by employers, or due to health, dependent
care, or other challenges that make full time employment difficult.
Numerous others are working full-time but simply not earning a high
enough wage to meet the needs of their family. As a result, for many
people work does not provide protection from poverty and food
insecurity. In fact, research shows \5\ that 40 percent of Americans
will spend at least 1 year in poverty between the ages of 25 and 60.
When those experiencing at least 1 year in near poverty, with incomes
below 150 percent of the poverty line which is $36, 450 for a family of
four, are factored in, that number climbs to a shocking 54 percent.
While conventional wisdom is that poverty impacts a small number of
people who are impoverished for many years, the reality is that a
majority of Americans experience poverty or near poverty over the
course of their working lives, often due to circumstances such as job
loss, inadequate hours, divorce or health issues.\6\
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\4\ Bureau of Labor Statistics Alternative Measures of Labor
Underutilization; http://www.bls.gov/news.release/empsit.t15.htm.
\5\ Rank, Mark Robert, Hirschl, Thomas A. and Foster, Kirk A.
Chasing the American Dream: Understanding What Shapes Our Fortunes.
Oxford University Press, 2016.
\6\ Ibid.
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The people Feeding America serves consistently identify a lack of
funds to meet basic household needs, including adequate amounts of
nutritious food, which underscores how important it is to recovery more
of the 40 percent of food wasted each year. Feeding America's
quadrennial study of the people utilizing charitable food assistance,
Hunger in America 2014, reveals that about \2/3\ of the people our food
banks and their local agencies serve are making impossible trade-offs
between paying for food and other necessities like rent,
transportation, health care and utilities. According to the research,
69 percent of client households had to choose between food and
utilities, 66 percent had to choose between food and medical care, and
57 percent had to choose between food and housing.\7\ These dilemmas
can put households in the position of choosing between competing
necessities making it challenging to meet urgent needs, much less get
back on their feet and achieve financial stability.
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\7\ Weinfield, N.S., Mills, G., Borger, C., Geaing, M., Macaluso,
T., Montaquila, J., Zedlewski, S. (2014) Hunger In America 2014.
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Feeding America is committed to increasing the amount of food we
safely rescue so that we can provide additional healthy meals to help
struggling Americans fill the meal gap. When Feeding America began 37
years ago, its focus was on rescuing excess, shelf stable food from
food manufacturers and retailers. Over the years, our rescue programs
have expanded to include perishable food donated from retailers,
restaurants and food service as well as from farmers and growers. In
fact, more than \1/2\--52 percent--of the food we distribute is
perishable. While perishable food, which includes items like milk,
eggs, protein, fruits and vegetables is highly sought after by our food
banks and the people they serve, it also entails more challenges than
shelf-stable food and is more expensive to handle. Considerable
investment in physical infrastructure such as refrigerated trucks,
cold-storage capacity and sophisticated logistics is required to ensure
that it can be distributed quickly and safely.
Much of the food that is wasted every year is highly perishable
food, including fresh produce that does not get harvested or make it to
market, as well as food at retail and food service establishments that
cannot be connected with people in need before it expires. Distributing
perishable food is essentially a race against the clock to get the food
from the donor to the people who need it. Unlike with shelf-stable
goods, perishable foods have a more limited shelf life. Ensuring that
donors can connect quickly with food banks and agencies who can safely
distribute that food to the people who need it before it expires
requires both innovation in new technology and processes to increase
efficiencies, as well as investments in physical infrastructure and
transportation. Thanks to the generosity of our corporate partners,
Feeding America has invested extensively in strengthening our food
banks' ability to recover and distribute perishable food, but we know
that additional investment is needed, especially at the agency level.
To overcome some of these barriers and capture excess perishable
food, Feeding America has partnered with the food industry to develop
and implement innovative technology platforms and pilot programs. The
pilots reinforced the need for funding and infrastructure to store and
transport fresh produce and how a lack of funding can limit rescue
opportunities. Several years ago, we partnered with Seneca Foods to
capture sweet corn from fields in Minnesota that is not harvested.
Several large food processing companies also assisted by providing
equipment to harvest and cool the corn. The opportunity was
significant--over half a million pounds of sweet corn. With support
from donors to cover the cost of harvesting the corn, the cooling shed
systems, the packing equipment and materials, and the transportation,
we were able to harvest 600,000 pounds of corn and 800,000 in 2013 from
Seneca and Del Monte. We distributed all of it across Minnesota and to
15 additional states. There was additional sweet corn but we lacked the
funds to harvest, cool and distribute the corn within its 7 day shelf
life. The operational challenges in the field and the cost of
transportation to the food bank are only one set of hurdles; food banks
and other charitable food providers also need additional cooling,
storage and transportation capacity to take advantage of donation
opportunities and be able to distribute perishable food to those in
need before it expires.
In part from the lessons learned during this pilot, Feeding America
designed and invested in innovative technology platforms to facilitate
perishable donations.
Produce Matchmaker is an online portal and ordering system designed
to help produce donors quickly connect with food banks when produce is
available 24 hours a day. It allows food banks to review offers and
accept donations in real time so that produce can be moved more quickly
to hungry families and food banks can calculate their distribution
costs and make cost-effective decisions.
The system also allows food banks to order produce donations by the
pallet, rather than the truckload, to save transportation costs and
rescue smaller amounts of produce. Currently in Phase One of two
phases, Produce Matchmaker is already being used by more than 150 food
banks and state associations.
Phase Two, which will be implemented this summer (2016), will add
additional features such as enhanced data tracking, better long-term
produce planning and collaboration between food banks to share costs.
Ultimately, we expect the system will help us source, handle and
distribute more of the billions of produce that is wasted each year.\8\
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\8\ According to a study conducted for Feeding America by the
Boston Consulting Group, 48 billion of the 70 billion pounds of food
wasted each year is in the ag and agri-processing industry. Although
Produce Matchmaker will help with accessing some of this, it is not the
only solution.
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We also have launched MealConnect, an online platform to facilitate
the easy, safe and fast donation of fresh food from grocery stores,
convenience stores and foodservice locations by matching donors to
their local Feeding America food bank. At no cost, donors and
prospective donors can engage online with Feeding America member food
banks when they have extra product to donate to their neighbors facing
hunger. It is the only donation matching software that fully vets both
the donor and the recipient to ensure proper food safety protocols are
followed throughout the donation process.
When a donor posts surplus food on MealConnect, the member food
bank is instantly alerted and their vetted food pantry is dispatched to
collect the product at a prearranged time. Using MealConnect on a
smartphone, tablet or PC simplifies the logistics of matching excess
food with a nearby pantry who can accept it. This is local food rescue
in the sharing economy.
MealConnect is the technology platform enabling Starbucks to
partner with Feeding America to launch Food Share, which will ensure
the donation of an additional 50 million meals over the next 5 years as
the program is rolled out across our 198 food banks and to 7,600
Starbucks stores across the U.S. While MealConnect will help us capture
an additional 50 million meals over the next 5 years from the Starbucks
FoodShare program alone, it will not solve the entire problem. We need
Congress to provide funding to invest in innovative platforms like this
to enable additional meal recovery. Pilot programs take a significant
amount of investment to identify what solutions work and can be scaled
across multiple food banks, and a combined investment from the public
and private sector would strengthen our ability to pursue additional
innovative programs.
The expansions to the enhanced deduction for donated food, included
in the Protecting Americans from Tax Hikes (PATH) Act enacted into law
in December 2015, ensure that the enhanced deduction is available to
businesses of all sizes who donate or wish to donate food to food banks
and other qualified charities. According to estimates from the Joint
Committee on Taxation, the changes are expected to result in nearly one
billion additional meals over the next 10 years.\9\
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\9\ Joint Committee on Taxation, Estimated Revenue Budget Effects
Of Division Q Of Amendment #2 To The Senate Amendment To H.R. 2029
(Rules Committee Print 114-40), The ``Protecting Americans From Tax
Hikes Act of 2015'', December 15, 2016.
---------------------------------------------------------------------------
Congress has long recognized the importance of tax incentives as a
tool to facilitate donations of excess food. The Tax Reform Act of 1976
established an enhanced tax deduction for large companies donating food
to a qualified 501(c)(3) nonprofit. Although this tax incentive helped
spur the growth of the Feeding America network's food rescue efforts,
the tax incentives did not apply to a large number of potential food
donors. Small businesses and farmers in particular were not able to
take the enhanced tax deduction, meaning that in many cases it would
cost a donor more to implement a food donation program than it would to
send the food to the landfill or leave it in the field.
In 2015 thanks to the efforts of lawmakers on both sides of the
aisle, the Protecting Americans from Tax Hikes (PATH) Act was enacted.
It included an expansion of the food donation tax deduction to include
all businesses, large and small, as well as farmers using cash basis
accounting. The changes also make it easier for food industry donors to
take the enhanced deduction for donated food that may not be intended
for market. An example of that would be our partnership with a cereal
manufacturer that is now donating cereal that does not have enough
dried fruit added to it to meet their standards for retail sale. Before
the passage of the PATH Act, it was more cost-effective for the donor
to sell the cereal for animal feed than to donate the cereal to a food
bank. With the PATH Act changes to allow the valuation of products that
don't meet manufacturers' specifications, the donor can now take the
enhanced tax deduction for donating the cereal to its local food bank.
This incentive recognizes that donating excess food to struggling
families should be the top priority for food waste reduction. The EPA
hierarchy establishes a pyramid of landfill diversion strategies for
food waste; those strategies, listed in importance, are source
reduction, feed hungry people, feed animals, industrial uses,
composting, and landfill/incineration.
Now that the legislation has become law, our focus is on educating
our donors and potential donors across the food industry, particularly
farmers and growers, about the expansion of the enhanced deduction for
donated food and how they can leverage it. To do so, Feeding America
has partnered with Deloitte Tax to produce specific information by food
industry sector to detail the changes, how they impact that sector and
how donors can utilize the enhanced tax deduction for donated food. We
commend you and your colleagues in Congress for passing last year's
PATH Act and taking this critical step in improving Federal policy to
support food rescue.
Moving forward, there is a significant opportunity to partner with
Congress, the Administration and elected officials at the Federal,
state, and local level on policy and regulatory changes, as well as
public education campaigns to reduce food waste and increase food
donation. As you examine the scope of food rescue in America and begin
preparing for the next farm bill, we urge you to make this issue a
priority and look forward to working with you.
Standardizing date labels on food at the Federal level is one
policy change that would have a significant impact on food waste at the
consumer level and throughout the supply chain. Many of the date labels
used in the food industry right now are a baffling mixture of ``sell
by'' ``best by'' or ``use by'' that is not science-based and confuses
consumers. In addition, providing a clear Federal standard about when
food can be donated if it is past a quality date would enable increased
food donations in the twenty states that currently have arbitrary
restrictions on food donations past the sell by date.
There are also other changes that would have a significant impact
on food rescue, including a thorough review of USDA administered grant
and incentive programs to identify opportunities to ensure that food
rescue is specifically included. Many grant programs, such as Specialty
Crop Block Grants, the Local Food Promotion Program Grants and the
Farmers Market Promotion Program Grants support activities that mirror
aspects of the work food banks are doing to rescue food, but do not
specifically mention food rescue in the authorizing language for the
grants. Expanding the grants to encompass food rescue would make it
easier for food banks to apply for funding to support food rescue,
build innovative partnerships and fill the infrastructure and
transportation funding gaps that exist today.
As you continue to examine this critical issue, we stand ready to
partner with you. I encourage you to visit your local food bank to
learn about the challenges and opportunities they face, as well as
their work to capture more food that would otherwise be wasted. Thank
you for the opportunity to testify and we look forward to discussing
this further with you.
The Chairman. Well, I thank our witnesses for their
testimony. The chair would remind Members they will be----
Mr. Peterson. We have one more.
The Chairman. I am sorry, Ms. Broad Leib. I jumped over on
the end. I am sorry, ma'am.
Ms. Broad Leib. That is okay.
The Chairman. Ms. Broad Leib for 5 minutes. Sorry about
that.
Ms. Broad Leib. Did my time pass so fast?
The Chairman. You looked like--yes.
Ms. Broad Leib. Thank you.
The Chairman. My apologies. I am so sorry. Ms. Broad Leib,
5 minutes.
Ms. Broad Leib. That is okay.
STATEMENT OF EMILY M. BROAD LEIB, J.D., ASSISTANT
CLINICAL PROFESSOR OF LAW AND DIRECTOR, FOOD LAW AND POLICY
CLINIC, HARVARD LAW SCHOOL, JAMAICA PLAIN, MA
Ms. Broad Leib. Thank you, Chairman Conaway, Ranking Member
Peterson, and the Members of the Committee for the opportunity
to speak with you.
My name is Emily Broad Leib, and I direct the Harvard Law
School Food Law and Policy Clinic.
We have worked on reducing food waste for several years,
and through our work with various clients and partners, we have
come to see intimately the challenges to food waste reduction
and food recovery. And I want to highlight a few issues.
First, as you have heard from many of my colleagues,
confusion over date labels is a major cause of food waste. The
ReFED report found that standardizing date labels is the most
cost-effective of 27 of the different solutions they examined
to reduce food waste, and could divert 398 tons of food waste.
We have identified two key challenges with date labels. First,
in The Dating Game, which we published in 2013 with the NRDC,
we showed that there is a dizzying array of state laws created
to fill the void in Federal regulation on this issue. Forty-one
states and D.C. regulate date labels, but no two states have
the same law, which is evidence that these laws are not based
in science or sound public policy. New York, for example, does
not regulate dates on any food products, but its neighbor,
Massachusetts, requires dates on all perishable and semi-
perishable products, and then heavily restricts sale or
donation after the date.
Second, we found that consumers are confused. On most
foods, date labels are not intended to communicate safety.
Instead, they signal a manufacturer's estimate of how long the
food will be at its best taste. But consumers toss past-date
food because of safety fears. In a national survey my clinic
conducted this April with the National Consumers League and the
Johns Hopkins Center for a Livable Future, we found that over
\1/3\ of consumers always throw food away after the date, and
84 percent do so at least occasionally. Interestingly, \1/3\ of
consumers also already believe the Federal Government regulates
date labels.
Through our work on date labels, we have also learned that
safety is a risk for certain food products, such as deli meats
or unpasteurized dairy, if they are consumed after the date.
That also isn't communicated clearly to consumers. Moving
forward, we could align with what most other countries do, and
as Representative Pingree discussed, require a standard quality
label on foods where freshness is a concern, and a standard
safety label on foods that actually carry a safety risk after
the date. We have been excited to see support for standard date
labels from companies like Wal-Mart, General Mills, Nestle, and
Campbell's. Standardizing these labels could help consumers
make better decisions, they could facilitate donation of safe,
past-date food, and could also be a win for companies.
Moving on, I would like to talk about food donation.
Several of my colleagues, and the Chairman, mentioned the fear
of exposure to liability, which hampers food donation, but
strong liability protections already exist. In 1996, Congress
passed the Bill Emerson Good Samaritan Act which provides a
very strong Federal floor of civil and criminal liability
protection to both food donors and the nonprofit organizations
that distribute food to needy individuals. These organizations
are protected as long as they don't act with intentional
misconduct or gross negligence. But 67 percent of manufacturers
and 54 percent of retailers still say that the main reason they
don't donate is because of fear of liability.
Food recovery organizations report that many donors don't
know about this legislation, or that if they do know, they are
concerned about the lack of authoritative interpretation of
some of the key terms.
The Act has not been challenged in court, so there are no
judicial interpretations of it, and it was never assigned to
any agency, so there are no agencies that provide Federal
guidance for filling these gaps, or provide education about the
Act. Congress could call on an agency to provide guidance and
raise awareness about the Act to help address these challenges.
Closely related to liability is the issue of food safety
regulations. In our federalist system, regulations for grocery
stores and restaurants takes place at the state level. State
health codes vary, but they are mostly based on the FDA Food
Code. However, the Food Code does not incorporate language
around food donation, so states lack Federal guidance around
safe food donation. Including food donations in the Food Code
or other Federal guidance could help states clarify their
safety laws and better prioritize food donation.
Last, I want to mention the opportunity for innovation.
Organizations have begun to test different entrepreneurial
approaches to food recovery. Several of our client
organizations are testing technologies that connect donors and
food recovery organizations, that convert nonconforming fruits
and vegetables into new products, or apply retail models to
provide surplus food at a low cost. As often happens, these
innovations could not be predicted when the laws were first
passed, so several existing laws like the Emerson Act actually
posed barriers to the viability of some of these innovations.
This Committee could address barriers like this, and create a
friendlier climate for innovation.
In conclusion, despite strong laws, barriers persist.
Addressing the challenges I mentioned, such as standardizing
date labels, strengthening liability protections and food
safety guidance, and supporting innovation can reduce the
amount of food waste, and increase the amount of healthy, safe
food recovered.
Thank you.
[The prepared statement of Ms. Broad Leib follows:]
Prepared Statement of Emily M. Broad Leib, J.D., Assistant Clinical
Professor of Law and Director, Food Law and Policy Clinic, Harvard Law
School, Jamaica Plain, MA
Chairman Conaway, Ranking Member Peterson, and Members of the
Committee, thank you for the opportunity to testify on the laws and
policies that can help reduce food waste from field to table. My name
is Emily Broad Leib and I am an Assistant Clinical Professor of Law at
Harvard Law School and the Director of the Harvard Food Law and Policy
Clinic (FLPC), a division of the Center for Health Law and Policy
Innovation. FLPC was established in 2010 to provide legal and policy
guidance to a range of clients seeking to increase access to healthy
foods, assist small and sustainable farmers in breaking into new
commercial markets, and reduce waste of healthy, wholesome food, while
educating law students about ways to use law and policy to impact the
food system.
FLPC has been researching policies to reduce food waste for several
years. In September 2013, we published a report with the Natural
Resources Defense Council that analyzed the laws regarding expiration
dates and explained how these unclear and unregulated labels contribute
to an alarming amount of unnecessary food waste. Since the publication
of that report, FLPC has continued to work on the challenge of
confusing date labels, while also researching other policy
opportunities to divert surplus food away from the landfills and into
the homes of those in need. Through our work with a range of clients,
we have seen intimately the challenges that inhibit food waste
reduction and food recovery.
While there is an abundance of food produced in the U.S. every
year,\1\ a significant amount of this food ends up in business'
dumpsters and consumers' trash cans, making its way to landfills
instead of the plates of hungry families.\2\ Forty percent of the food
produced in the U.S. goes uneaten, resulting in 62.5 million tons of
wasted food each year.\3\ Food waste in the U.S. has been on the rise
for the past several decades, with per capita food loss increasing by
50 percent from 1974 to 2005.\4\ A number of Federal laws strive to
reduce food waste or promote food recovery, yet several barriers limit
their effectiveness.
---------------------------------------------------------------------------
\1\ Mark Bittman, How to Feed the World, N.Y. Times, (Oct. 14,
2013), http://www.nytimes.com/2013/10/15/opinion/how-to-feed-the-
world.html?pagewanted=all&_r=0.
\2\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 12
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
\3\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 10
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
\4\ Kevin D. Hall, et al., The Progressive Increase of Food Waste
in America and Its Environmental Impact, 4 PLoS ONE 1, 2(2009), http://
journals.plos.org/plosone/article?id=10.1371/journal.pone.0007940#pone-
0007940-g001.
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Although the best outcome for the environment is to reduce food
waste at the source, the next best outcome, according to the
Environmental Protection Agency (EPA) Food Recovery Hierarchy, is
ensuring that surplus or unused food is used to feed people.\5\
Fourteen percent of American households were food-insecure during 2014,
meaning they lacked access to a sufficient amount of food to lead an
active, healthy lifestyle at some point during the year.\6\ Since,
according to the Food Recovery Hierarchy, the top two priorities are to
reduce food waste and get surplus food to people in need, this
testimony focuses on opportunities in these two categories. This
testimony is divided into four segments which detail several key ways
to realign Federal policies in order to overcome some of the hurdles
that lead to unnecessary food waste or prevent the donation of surplus
food.
---------------------------------------------------------------------------
\5\ The Food Recovery Hierarchy, U.S. Envtl. Prot. Agency, https://
www.epa.gov/sustainable-management-food/food-recovery-hierarchy (last
updated March 31, 2016).
\6\ Alisha Coleman-Jensen, et al., U.S. Dep't of Agric., Econ.
Research Serv., Household Food Security in the United States in 2014 4
(2015), http://www.ers.usda.gov/publications/err-economic-research-
report/err194.aspx.
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I. Reducing Food Waste by Standardizing and Clarifying Date Labels
The growing, transporting, processing, and disposing of uneaten
food costs the U.S. $218 billion each year, and an estimated \2/3\ of
this lost economic value occurs at the household level.\7\ Consumer
confusion over date labels is a top driver of this waste.
---------------------------------------------------------------------------
\7\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 12
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
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No national uniform system for date labeling exists in the U.S.,
which allows companies to use a dizzying array of labels including
``sell by,'' ``use by,'' ``best by,'' and ``expires on.'' \8\ These
dates are generally not intended as safety indicators; instead, they
signal a manufacturer's estimate of how long food will taste its best.
However, consumers mistakenly believe that these dates are indicators
of safety, and many report throwing food away once the date passes, due
to fear of safety risks. For the small set of foods that carry some
risk if consumed after the date, this risk also is not communicated
clearly to consumers. In our work over the past few years, we have
identified two key challenges with date labels.
---------------------------------------------------------------------------
\8\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
& Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
Food Waste in America 9 (2013), http://www.chlpi.org/wp-content/
uploads/2013/12/dating-game-report.pdf.
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First, as we reported in The Dating Game, the absence of Federal
law governing date labels has allowed states to regulate date labels,
leading to a wide range of labeling laws in different states. No two
states have the same law, evidence that they are not based in science
or sound public policy. Forty-one states plus the District of Columbia
require date labels on at least some food items, whereas nine states,
including New York, do not require or regulate date labels on any food
products (see Figure 1).\9\ The states that regulate date labels also
vary greatly in their requirements.\10\ Some require the use of labels
only on narrow categories of food. New Hampshire, for example, requires
date labels only on containers of cream and pre-wrapped sandwiches.\11\
Other states have much broader regulations: Massachusetts requires date
labels on all prepackaged perishable and semi-perishable food
products.\12\
---------------------------------------------------------------------------
\9\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
& Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
Food Waste in America app. B at 32 (2013), http://www.chlpi.org/wp-
content/uploads/2013/12/dating-game-report.pdf.
\10\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
& Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
Food Waste in America app. C at 35-54 (2013).
\11\ See, e.g., N.H. Rev. Stat Ann. 184:30-g (2016); N.H. Code
Admin. R. Agr. 1412.04 (2016).
\12\ 105 Mass. Code Regs. 520.119 (2016).
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Figure 1: State Requiring Date Labels on At Least Some Food Products
States Requiring Date Labels on At Least Some Food Products
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Twenty states and the District of Columbia prohibit or restrict
sale or donation of food products once the date has passed (see Figure
2).\13\ These state laws also vary widely. Massachusetts and Oregon
allow past-date products to be sold, but impose restrictions on sales,
such as requiring them to be clearly labeled as past-date and separated
from pre-date products.\14\ Montana, which requires milk to bear a
``sell by'' date of 12 days after pasteurization, prohibits milk from
being sold or ``otherwise offered for public consumption'' after the
date.\15\
---------------------------------------------------------------------------
\13\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
& Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
Food Waste in America 26 (2013), http://www.chlpi.org/wp-content/
uploads/2013/12/dating-game-report.pdf.
\14\ See, e.g., 105 Mass. Code Regs. 520.119(f) (2016); Or. Rev.
Stat. 616.825 (2016).
\15\ Mont. Admin. R. 32.8.202 (2016).
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Figure 2: States Regulating Food Sales Past some Label Dates
States Regulating Food Sales Past Some Label Dates
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Second, we have learned that consumers are confused. On most foods,
date labels are not intended to communicate safety. Instead,
manufacturers choose dates based on how long they estimate the food
will taste its best. They use a variety of quality-based methods to
determine these dates, including consumer taste tests, literature
values, product turnover rates, or consumer complaints.\16\
---------------------------------------------------------------------------
\16\ Emily Broad Leib, Natural Res. Def. Council & Harvard Food Law
& Policy Clinic, The Dating Game: How Confusing Food Labels Lead to
Food Waste in America 17-18 (2013), http://www.chlpi.org/wp-content/
uploads/2013/12/dating-game-report.pdf.
---------------------------------------------------------------------------
But many consumers throw away food once the date passes because
they mistakenly think the date is an indicator of safety. A
representative national survey conducted in April 2016 by FLPC, the
National Consumers League, and Johns Hopkins Center for Livable Future,
found that consumers use date labels to make decisions about discarding
food: over \1/3\ always discard food close to or past the date on the
label, and 84% do so at least occasionally.\17\ A third of consumers
also wrongly think that date labels are federally regulated.\18\ Wasted
food costs the average American family of four $1,365 to $2,275 per
year.\19\ Studies in the United Kingdom found that 20% of household
waste is due to date label confusion.\20\ When consumers misinterpret
indicators of quality and freshness for indicators of a food's safety,
this increases the amount of food that is unnecessarily discarded.
---------------------------------------------------------------------------
\17\ Emily Broad Leib, et al., Consumer Perceptions of Date
Labels: National Survey, (2016), http://www.chlpi.org/wp-content/
uploads/2013/12/Consumer-Perceptions-on-Date-Labels_May-2016.pdf.
\18\ Emily Broad Leib, et al., Consumer Perceptions of Date Labels:
National Survey, (2016), http://www.chlpi.org/wp-content/uploads/2013/
12/Consumer-Perceptions-on-Date-Labels_May-2016.pdf.
\19\ Jonathan Bloom, American Wasteland 187 (Da Capo Lifelong
Books, 2011).
\20\ Consumer insight: date labels and storage guidance, Waste &
Resources Action Programme. May 2011. http://www.wrap.org.uk/sites/
files/wrap/ES%20Technical%20report%20dates_0.pdf (assumes U.S. home
behaviors are equivalent to those in U.K.).
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Consumers are also misled, and potentially put at risk, when they
are not warned of foods that may be unsafe after the date. This is the
case with certain ready-to-eat foods that are at risk of contamination
with Listeria monocytogenes. Listeria can reproduce under
refrigeration, and ready-to-eat foods are not cooked before they are
consumed, so the Listeria remains on these products.\21\ A joint FDA/
USDA study identified several foods in this category, including deli
meats and unpasteurized dairy items.\22\ Clearer date labels could
better serve consumers by identifying foods that may become unsafe
after the date.
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\21\ Centers for Disease Control and Prevention, Listeria (Jan. 2,
2013), http://www.cdc.gov/listeria/risk.html.
\22\ Ctr. for Food Safety & Applied Nutrition, Food & Drug Admin. &
Food Safety & Inspection Serv., U.S. Dep't of Agric., Quantitative
Assessment of Relative Risk to Public Health from Foodborne Listeria
monocytogenes Among Selected Categories of Ready-to-Eat Foods (2003).
---------------------------------------------------------------------------
In addition to food waste by consumers, thousands of pounds of food
are also needlessly trashed before they reach the consumer because the
date has passed. A report sponsored by the Grocery Manufacturers
Association and the Food Marketing Institute estimated that about $900
million worth of inventory was removed from the supply chain in 2001
due to expiration dates.\23\ Fifteen years later, this number has
likely only increased.
---------------------------------------------------------------------------
\23\ Raftery Resource Network, Inc., Expired Product Project,
Developed for the Joint Industry Unsaleables Steering Committee of
Grocery Manufacturers of America & Food Marketing Institute 2 (July
2003), http:// www.gmaonline.org/downloads/research-and-reports/
expiredproducts.pdf.
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Internationally, most date label regulations, including the
standards in place throughout the European Union, utilize a dual label
system that requires a standard quality label on foods where freshness
is a concern and a standard safety label on foods that carry a safety
risk past the date.\24\ ReFED, a collaboration of business, nonprofit,
foundation, and government leaders committed to reducing food waste,
found in its Roadmap to Reduce Food Waste by 20 Percent that
standardizing date labels was the most cost effective of 27 potential
solutions. They report that standardizing date labels has the potential
to divert 398,000 tons of food waste per year and provide $1.8 billion
per year in economic value.\25\ Having one clear indicator on a food
product to let consumers know if it is a quality label or a safety
label could reduce food wasted due to consumer confusion and also keep
consumers safe.
---------------------------------------------------------------------------
\24\ Directive 2000/13/EC of the European Parliament and the
Council on the approximation of the laws of the Member States, Art. 3
(``E.U. Food Labeling Directive''). The Directive is implemented in
Great Britain by the Food Labelling Regulations 1996 (FLR). According
to the FLR, ``food ready for delivery to the ultimate consumer or to
catering establishments must carry an `appropriate durability
indication,' '' in the form of either a ``best before'' date or a ``use
by'' date. Great Britain Food Labelling Regulations 1996, 1996 No. 1499
(20)-(22).
\25\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
---------------------------------------------------------------------------
More education is needed to help ensure past-date food is not
needlessly wasted. Standardizing date labels could make it easier for
Federal agencies and other organizations to conduct such education.
Indeed, education will be needed to ensure the success of standard date
labels if such standards are created. In addition to reducing waste in
consumers' homes, clarifying date labels also can ensure that more
wholesome past-date food is donated. Many food businesses are unsure
whether past-date food is safe, whether its donation is lawful, and
whether they will receive liability protection. This makes them
reluctant to donate past-date foods. Further, food bank recipients,
like other consumers, are confused about date labels and hesitant to
consume past-date foods. Standard date labels could make clear which
foods could be safely donated and consumed after the date and which
cannot, reducing waste at all levels of the supply chain.
II. Increasing Donations by Food Manufacturers, Retailers, and
Restaurants
Great potential also exists to increase the amount of healthy,
wholesome food that is donated. ReFED found that consumer-facing
businesses, such as retailers and restaurants, generated 40 percent (25
million tons) of food waste and food manufacturers generated two
percent (1 million tons).\26\ Yet, according to a report jointly
sponsored by the Grocery Manufacturers Association and the Food
Marketing Institute, in 2011 only 1.6% of food deemed unsaleable by
food manufacturers was recovered for human consumption; among food
retailers and wholesalers only 17.9% was recovered.\27\ The sheer
amount of food being sent to the landfill instead of donated in these
sectors is evidence that more can and should be done to mitigate food
waste.
---------------------------------------------------------------------------
\26\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 13
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
\27\ BSR, Analysis of U.S. Food Waste Among Food Manufacturers,
Retailers, & Wholesalers 9-10 (2013), http://www.foodwastealliance.org/
wp-content/uploads/2013/06/FWRA_
BSR_Tier2_FINAL.pdf.
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Food manufacturers and retailers make individual calculations when
deciding whether or not to donate surplus foods, but two key elements
generally play a role in such decisions: cost and liability.
Fortunately, Congress helped to address the cost of donation with the
recent Fiscal Year 2016 omnibus budget, which expanded opportunities to
claim an enhanced tax deduction for food donation to all businesses and
increased the cap on this deduction (some businesses like farms can
still use extra help; see Section IV for more information).\28\ Federal
law also provides very strong liability protection for food donations,
yet more can be done to strengthen these liability protections and help
tip the scale in business decisions regarding whether to donate.
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\28\ H.R. 2029, 114th Cong. 113(a) (2015) (to be codified at
I.R.C. 170(e)(3)(C)).
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Liability Protections
Many food manufacturers, retailers, and wholesalers cite fear of
liability as a primary deterrent to donating food.\29\ A 2014 survey
conducted by the Food Waste Reduction Alliance, a joint industry task
force comprised of leading companies and trade associations in the
food, beverage, food service, and food retail industries, found that
67% of food manufacturers and 54% of retailers and wholesalers cite
liability as one of the main barriers to food donation.\30\ However,
strong Federal and state liability protections exist for the donation
of food items.
---------------------------------------------------------------------------
\29\ Food Waste Reduction Alliance, Analysis of U.S. Food Waste
Among Food Manufacturers, Retailers, and Restaurants, 13, 16 (2014)
http://www.foodwastealliance.org/wp-content/uploads/2014/11/
FWRA_BSR_Tier3_FINAL.pdf.
\30\ Food Waste Reduction Alliance, Analysis of U.S. Food Waste
Among Food Manufacturers, Retailers, and Restaurants, 13, 16 (2014)
http://www.foodwastealliance.org/wp-content/uploads/2014/11/
FWRA_BSR_Tier3_FINAL.pdf.
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In 1996, Congress passed the Bill Emerson Good Samaritan Food
Donation Act (Emerson Act), which provides a Federal floor of civil and
criminal liability protection to food donors and nonprofit
organizations that distribute food.\31\ The Emerson Act protects a
broad range of food donors, including individuals, businesses,
nonprofit organizations, government entities, and gleaners--individual
or entities that harvest and donate agricultural crops.\32\ The
protection applies so long as they donate ``apparently wholesome food''
in ``good faith'' and do not act with intentional misconduct or gross
negligence.\33\ In addition to this Federal protection, all 50 states
and Washington, D.C. have passed their own state-level Good Samaritan
acts, but the protection provided and foods covered vary from state to
state.\34\
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\31\ 42 U.S.C.A. 1791 (2016).
\32\ 42 U.S.C.A. 1791(b)(9) (2016).
\33\ 42 U.S.C.A. 1791(c) (2016).
\34\ H.R. Rep. No. 104-661, at 3. (1996); D.C. Code Ann. 48-301
(West 2016).
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Despite this strong protection, why do so many potential food
donors still decline to donate because of liability fears? Food
recovery organizations report that many potential donors are unaware of
liability protection or the Emerson Act, and it is difficult to spread
the word to those who are not already donating.\35\ Those that do know
about the Act are concerned about the lack of authoritative
interpretation of its key terms, including ``needy individual'' and
``apparently wholesome food.'' The Emerson Act has not been challenged
court, so no judicial interpretations of it exist.\36\ There is also no
agency guidance interpreting the Act. Part of the reason for the lack
of interpretative guidance is that, unlike many statutes, which
delegate power to an agency to interpret and enforce them, authority
under the Emerson Act was never assigned to a particular Federal
agency. Thus, no agency is required to provide Federal guidance or
raise awareness of the Act. Potential donors have only the 1996
statutory language on which to base decisions regarding their coverage.
One way to clarify the scope of the Emerson Act and promote public
awareness is to assign authority to a specific executive agency to
oversee and interpret this legislation.
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\35\ See, e.g., Telephone Interview with Emily Malina, Chief
Product Officer, Spoiler Alert (Nov. 13, 2015).
\36\ University of Arkansas, Food Recovery: A Legal Guide 3 (2013),
http://law.uark.edu/documents/2013/06/Legal-Guide-To-Food-Recovery.pdf.
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In addition, the Emerson Act could be examined for further
opportunities to increase food donation. For example, the Emerson Act
only covers foods that comply with or are reconditioned to comply with
all Federal, state, and local quality and labeling standards.\37\
Federal law includes several labeling requirements, such as name of the
food, manufacturer's address, net quantity of contents, an ingredient
list (which includes allergen information) and nutrition facts
panel.\38\ Some of these labels are not necessary to ensure that
donated food is safe. Ingredient lists or allergen warnings are
important for safety, but the net weight is not. Fear of facing
liability due to donating mislabeled food, even if the mislabeling is
not pertinent to food safety, is a major impediment to food
donation.\39\ Often food goes to waste precisely because there is a
deficiency in its labeling, so salvaging food that is mislabeled in a
way not relevant to safety could help to prevent unnecessary waste. The
Emerson Act also does not explicitly state that donations of past-date
foods are protected from liability and, as a result, past-date food
that is perfectly safe for consumption often winds up in landfills.
---------------------------------------------------------------------------
\37\ 42 U.S.C.A. 1791(e) (West 2015).
\38\ U.S. Food and Drug Administration, Guidance for Industry: A
Food Labeling Guide,
http://www.fda.gov/Food/GuidanceRegulation/
GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm2006828.htm
(last visited Dec. 6, 2015).
\39\ Food Waste Reduction Alliance, Analysis of U.S. Food Waste
Among Food Manufacturers, Retailers, and Restaurants, 13 (2014), http:/
/www.foodwastealliance.org/wp-content/uploads/2014/11/
FWRA_BSR_Tier3_FINAL.pdf.
---------------------------------------------------------------------------
Despite the strong liability protection in the Emerson Act, many
businesses still fail to donate because of liability concerns. The
ReFED report found that educating potential food donors on donation
liability laws has the potential to divert 57,000 tons of food waste
from the landfill.\40\ More can be done to put donors at ease about the
protections, raise awareness of the Act, and strengthen its provisions.
---------------------------------------------------------------------------
\40\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
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Food Safety
Closely related to liability is the issue of compliance with food
safety regulations. Even if they know they will be protected from
liability, businesses are fearful of doing something that may run afoul
of their health inspectors. Most food safety regulations that impact
food donation are created at the state level, so businesses have to
understand and comply with state regulations and their interpretations
by state and local health departments. Yet these regulators and health
inspectors often are not aware of the importance of food donations or
the best practices for safely and economically donating food. Food
donors and recovery organizations lament the lack of guidance on rules
for food donation in their states, or the hesitation on the part of
health inspectors to allow donation programs to proceed.
States have authority over food safety rules for foods that are
sold within the state, but the FDA plays a key role in creating state
regulations through dissemination of food safety knowledge through the
FDA Food Code. The Food Code is a model code created with the help of
the Conference for Food Protection (CFP), an organization made up of
industry, government, and consumer groups who develop and promote food
safety standards.\41\ The Food Code is released every 4 years and
adopted by most states.\42\ However, the Food Code does not include
model language regarding donation, meaning states lack guidance on
incorporating food donation provisions into their laws.
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\41\ About the Conference, Conference for Food Protection, http://
www.foodprotect.org/about/ (last visited Apr. 26, 2016).
\42\ FDA Food Code, U.S. Dep't of Health & Human Servs., Food &
Drug Admin., http://www.fda.gov/downloads/Food/GuidanceRegulation/
RetailFoodProtection/FoodCode/UCM374510.pdf (last visited Apr. 28,
2016).
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In the late 1990s, USDA and FDA recognized the need for model
guidance regarding food donation and, using the expertise of the CFP,
created the Comprehensive Guidelines for Food Recovery Programs.\43\
The Guidelines provide information on maintaining a safe food recovery
program (based on the Food Code); statistics on food waste and food
recovery; food recovery activities undertaken by the government; and
legal protections for food recovery.\44\ The Guidelines serve as a
useful resource; however, they target businesses rather than
regulators. The Guidelines are only briefly summarized in the appendix
of the Food Code.\45\ Because of the ubiquity of the Food Code,\46\
including food donation language in the Food Code, rather than just
mentioning the Guidelines in an appendix, could ensure familiarity with
best practices for food donation among state and local food safety
officials, who are the ones making decisions about whether to allow
regulated businesses to donate. Federal leadership can encourage states
to make donation a priority; whether through the addition of language
on food donation to the Food Code or otherwise disseminating best
practices to state regulators.
---------------------------------------------------------------------------
\43\ Food Recovery Committee, Conference for Food Protection,
Comprehensive Guidelines for Food Recovery Programs 6 (2000), http://
www.foodprotect.org/media/guide/food-recovery-final2007.pdf.
\44\ Food Recovery Committee, Conference for Food Protection,
Comprehensive Guidelines for Food Recovery Programs 6 (2000), http://
www.foodprotect.org/media/guide/food-recovery-final2007.pdf.
\45\ U.S. Dep't Health & Human Services, Food and Drug
Administration, Food Code app. 2 at 321-22 (2013), http://www.fda.gov/
downloads/Food/GuidanceRegulation/RetailFood
Protection/FoodCode/UCM374510.pdf.
\46\ As of 2012, all 50 states had adopted retail codes modeled
after versions of the Food Code. The Food Code is intended as a model
for government agencies at all levels that regulate restaurants,
grocery stores, and other food service operations. See U.S. Dep't
Health & Human Services, Food and Drug Administration, Introduction to
the 2013 Food Code (2013), http://www.fda.gov/downloads/Food/
GuidanceRegulation/RetailFoodProtection/FoodCode/UCM374510.pdf.
---------------------------------------------------------------------------
In addition to the dissemination challenges, the Guidelines are not
updated on a regular schedule. The Guidelines were last released in
2007, yet the FDA Food Code has been updated twice since then, leaving
outdated food safety language and guidance in the Guidelines. In April
2016, CFP approved a new version of the Guidelines to be released
shortly.\47\ Although new Guidelines will be released this summer, they
will soon become outdated if they are not updated regularly. Updating
the Guidelines every 4 years, the same rate the FDA Food Code, could
ensure that the Guidelines stay up to date.\48\
---------------------------------------------------------------------------
\47\ Committee Final Report, Conference for Food Protection 1 (Jan.
29, 2016), http://www.foodprotect.org/issues/packets/2016Packet/
attachments/I_011_content_a.pdf.
\48\ Real Progress in Food Code Adoption, U.S. Food & Drug
Administration 1 (Feb. 22, 2016),
---------------------------------------------------------------------------
Each year, food manufacturers, wholesalers, and retailers waste
billions of pounds of food. Clarifying the language of the Emerson Act,
removing some of the non-essential restrictions in the Emerson Act, and
regularly providing food safety guidance that better targets state
regulators can dispel some of the concerns with liability and help
reduce the amount of food unnecessarily wasted each year.
III. Supporting Innovative Food Recovery Models
In recent years, organizations and individuals have begun to test
entrepreneurial approaches to food recovery. Our clients and partners
are testing technologies to connect donors and recovery organizations,
converting nonconforming fruits and vegetables into new products, like
juices and soups, or applying retail models to provide surplus food at
a low cost.\49\ As often happens, innovations could not be predicted
when laws were created, and several existing laws pose barriers. This
Committee could further research ways to support innovation.
---------------------------------------------------------------------------
\49\ See, e.g., FAQs, Daily Table, http://dailytable.org/faqs/
(last visited Jan. 19, 2016); Lorena Galliot, This New Startup Wants to
Sell You Ugly Fruit and Veggies, Grist (May 8, 2015),
http://grist.org/food/this-new-startup-wants-to-sell-you-ugly-fruit-
and-veggies/.
---------------------------------------------------------------------------
As one example, some nonprofit organizations are following the
model of ``social supermarkets,'' popularized in Europe, to sell
surplus foods in a low-cost grocery.\50\ These organizations can fill a
need in communities where individuals are food-insecure or lack regular
food access, but for various reasons are not willing or able to qualify
for government assistance or use a food pantry or soup kitchen. They
also offer the potential for a sustainable solution to food recovery,
as they can use customer payments to offset the costs of labor,
storage, and transportation of recovered food. ReFED's Roadmap found
that innovative retail models and secondary resellers have the
potential to divert 167,000 tons of food waste per year and provide
$36.4 million per year in economic value.\51\
---------------------------------------------------------------------------
\50\ Serri Graslie, Social Supermarkets A `Win-Win-Win' For
Europe's Poor, NPR (Dec. 13, 2013); Rebecca Smithers, UK's first
`social supermarket' opens to help fight food poverty, The Guardian
(Dec. 8, 2013).
\51\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
---------------------------------------------------------------------------
But these models face several challenges to their success. For
example, food donations to these organizations are not protected under
the Emerson Act unless the ultimate recipient ``does not have to give
anything of monetary value.'' \52\ The Act does not provide liability
protection to the food donor when the ultimate recipient pays, even at
a reduced rate, for the food. The protection under the Act does not
need to be structured in this way. For example, Massachusetts provides
liability protection to those who donate to a nonprofit that charges
the final recipient for food at a level to ``cover the cost of handling
such food.'' \53\ Oregon provides liability protection to donors who
give to a nonprofit that charges the final recipient based ``on a scale
reflecting ability to pay or only requiring a shared maintenance
contribution.'' \54\ These examples show ways to offer liability
protection to innovative nonprofit food recovery organizations and
their donors. Notably, although these organizations are selling food
instead of giving it away for free, they are still nonprofit
organizations organized and operated solely ``for religious,
charitable, or educational purposes.'' \55\ The nonprofit requirement
ensures that food and any profits will be used for a charitable
purpose. Any revenue-generating activities of these organizations would
be conducted in furtherance of the enterprise's social mission, rather
than for profit-maximizing purposes.
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\52\ 42 U.S.C.A. 1791(b)(3) (West 2016).
\53\ Mass. Gen. Laws ANN. 94 328 (West 2016).
\54\ Or. Rev. Stat. Ann. 30.890 (West 2016).
\55\ 42 U.S.C.A. 1791(c)(1) (West 2015).
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The Emerson Act was enacted to encourage food donations; however,
the ``no-charge'' provision deters donors from donating to innovative
nonprofit social supermarkets and discourages traditional food recovery
organizations from testing out new models. Similarly, the Federal
enhanced tax deduction for food donation limits the enhanced deduction
to foods that are given away for free to needy individuals and not ``in
exchange for money, other property, or services,'' \56\ meaning
donations made to organizations that sell the food are not eligible for
the enhanced deduction. Food donors are less likely to donate to an
innovative food recovery organization that is not covered by the
Federal liability protection and cannot offer them an enhanced tax
deduction when they could instead donate to an organization that
provides liability protection and an enhanced deduction, hampering the
development of these new organizations.
---------------------------------------------------------------------------
\56\ I.R.C. 170(e)(3)(A)(ii) (2016).
---------------------------------------------------------------------------
These provisions also constrain traditional food recovery
organizations from broadening their offerings. According to a report by
Feeding America, ``Emergency food from pantries . . . are now a part of
households' long term strategies to supplement monthly shortfalls in
food.'' \57\ As a result of this increasing demand, ``[F]ood banks
across the nation continue to be stretched thin in their efforts to
meet sustained high need in the wake of the recession.'' \58\ Since
these organizations rely on food donations, it would be
counterproductive to do anything that prevents their donors from
receiving the enhanced deduction or causes them to lose their liability
protection, such as selling the donated food at a low cost. Food banks
struggle to receive not only donations of wholesome, safe food, but
also to receive monetary donations to help pay their labor,
transportation, administrative, and other costs. Providing some of
their food offerings for sale using a low-cost grocery model could help
to bring in income and support their broader operations, while
potentially serving a broader client base. Organizations like Goodwill
and Salvation Army offer a model of using sales of certain items to
raise money to support their free services. Allowing food banks to do
the same would help to finance their ongoing work supporting
individuals and families, while serving a broader population.
---------------------------------------------------------------------------
\57\ Feeding America, Food Banks: Hunger's New Staple: Preliminary
Findings 3 (2011),
http://feedingamerica.org/hunger-in-america/hunger-studies/ /media/
hunger-new-staple-exec-summ.ashx?.pdf.
\58\ $5 Billion Cut To Food Stamp Program Will Strain Food Banks:
Feeding America Braces for a Significant Increase in Need, Feeding Am.
(Oct. 25, 2013), http://www.feedingamerica.org/hunger-in-america/news-
and-updates/press-room/press-releases/5-billion-cut-to-food-stamp-
program-will-strain-food-banks.html.
---------------------------------------------------------------------------
The lack of liability protections or eligibility for enhanced tax
deductions for donors to nonprofit ``social supermarkets'' offer just a
few examples of the types of barriers that exist to innovation in the
field of food recovery. Other innovative new models are struggling with
a variety of similar or diverse challenges. Federal leadership could
help to catalogue these barriers and evaluate whether modifications
could create a friendlier climate for food recovery innovation while
supporting the ultimate goals of food waste reduction, food safety, and
food security.
IV. Improve Opportunities To Recover Wholesome, Fresh Food from the
Farm
On farms, approximately 10.1 million tons of food remain
unharvested each year, often because market conditions make harvest
uneconomical, leaving edible produce to rot in the field.\59\ Even more
crops are wasted post-harvest because they do not meet quality or
appearance criteria, thus rendering them unsaleable despite being
edible and nutritious.\60\ While farms have an abundance of food that
could be donated, preparing, storing, and transporting this food for
donation can be quite expensive.
---------------------------------------------------------------------------
\59\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
\60\ Dana Gunders, Nat. Res. Def. Council, Wasted: How America Is
Losing Up to 40% of Its Food from Farm to Fork to Landfill 8 (2012).
---------------------------------------------------------------------------
Farmers have to pay additional labor costs to harvest the crops
that would otherwise be left in the fields. The food needs to be
stored, cooled, and packed until it is ready to be delivered to a food
recovery organization.\61\ The cost of preparing the food for donation
can be large-packing and cooling donated produce alone could cost
thousands of dollars,\62\ and meat from surplus animals must be
processed into edible food before it is donated, which could also be
quite expensive.
---------------------------------------------------------------------------
\61\ See, e.g., Community Solutions Act of 2001: Hearing on H.R. 7
Before the Subcomm. on Human Res. & the Subcomm. on Select Revenue
Measures of the H. Comm. on Ways and Means, 107th Cong. 98, 100-01
(2001) (statement of Bill Reighard, President, Food Donation
Connection).
\62\ See, e.g., 2012 Cost Estimates of Establishing, Producing, and
Packing Red Delicious Apples in Washington, Wash. State Univ. Extension
3 (2012), http://cru.cahe.wsu.edu/CEPublications/FS099E/FS099E.pdf
(noting that when a 25 acre orchard was in full production, it paid on
average $12,000 annually for packing costs).
---------------------------------------------------------------------------
This food must then be transported to a food recovery organization.
Transporting donated food requires a vehicle (sometimes one with
refrigeration), a driver, gas, and other vehicle maintenance and repair
expenses. This can be quite costly: one food recovery organization that
uses refrigerated trucks to rescue and deliver surplus food estimates
that it spends $9,900 a week to run, maintain, and repair its four
trucks, pay its drivers, and cover additional operating costs.\63\ Many
farmers rely on volunteer groups or food recovery organizations to
transport the food for them. But in the many cases where local food
recovery organizations simply do not have the capacity to transport the
food, would-be donors find it more cost-effective to let the food rot
in the field instead of paying for transportation.\64\
---------------------------------------------------------------------------
\63\ Telephone Interview with Lauren Palumbo, Chief Operating
Officer, Lovin' Spoonfuls (Nov. 15, 2015) (noting that the costs of
trucks, repairs and maintenance, gas, and the driver's salary cost this
food recovery organization .33 a pound and Lovin' Spoonfuls recovers on
average 30,000 pounds of food each week).
\64\ See, e.g., Stacey H. Van Zuiden, The Good Food Fight for Good
Samaritans: The History of Alleviating Liability and Equalizing Tax
Incentives for Food Donors, 17 Drake J. Agric. L. 237, 250 (2012).
---------------------------------------------------------------------------
To help address some of the costs involved in donating food, the
Federal Government (and several state governments) provides tax
incentives. There are two types of Federal tax incentives available for
food donors--a general deduction that applies to all charitable
contributions and an enhanced tax deduction that applies to qualified
food donations. In comparison to the general deduction (which only
allows a business to deduct the basis value of the product), the
enhanced deduction allows businesses to deduct almost twice as much as
the general deduction. It allows businesses to deduct the smaller of
(a) twice the basis of the donated food or (b) the basis of the donated
food plus \1/2\ of the food's expected profit margin.\65\
---------------------------------------------------------------------------
\65\ I.R.C. 170(e)(3)(B) (2015).
---------------------------------------------------------------------------
FLPC applauds Congress on the Fiscal Year 2016 omnibus budget,
which expanded opportunities to claim the enhanced tax deduction to all
qualifying businesses that donate food; in the past, the enhanced
deduction was only available to C-corporations.\66\ The 2016 omnibus
budget also increased the overall cap for the enhanced deduction,
strengthened and clarified the formula for calculating the deduction,
and clarified the method for determining the FMV of unsaleable food
products.\67\ Congress has taken a significant step toward increasing
food donations. Congress or an executive agency should monitor the
effectiveness of the expansion of the enhanced tax deduction over time
to determine if further changes need to be made to encourage food
donations.
---------------------------------------------------------------------------
\66\ H.R. 2029, 114th Cong. 113(a) (2015) (to be codified at
I.R.C. 170(e)(3)(C)); Tax Reform Act of 1976, Pub. L. No. 94-455,
2135, 90 Stat. 1525, 1928-29, (1976) (codified as amended at I.R.C.
170(e)(3)).
\67\ H.R. 2029, 114th Cong. 113 (2015) (to be codified at I.R.C.
170(e)(3)(C)).
---------------------------------------------------------------------------
Despite expansion of the availability of Federal tax incentives,
the costs involved in donating food still pose challenges for farmers.
One challenge is that farmers operate with very low profit margins.\68\
Most U.S. farms are not profitable at all as ongoing businesses.\69\
According to the U.S. Department of Agriculture (USDA), 69 percent of
all U.S. farms were in the operating profit margin (OPM) ``critical
zone'' in 2013.\70\ Profit margins are even worse for smaller farms,
which might not earn enough from the sale of farm produce and services
to cover their expenses.\71\ Since many farmers operate on a low profit
margin, it is difficult for them to benefit from a tax deduction
because a deduction only reduces the amount of taxable income, meaning
the value of the deduction is contingent on the amount of taxable
income (which, for farms and especially small farms, might not be very
large.)
---------------------------------------------------------------------------
\68\ Robert Hoppe, Profit Margin Increases with Farm Size, (Feb. 2,
2015), U.S. Dep't of Ag. Econ. Research Serv., http://www.ers.usda.gov/
amber-waves/2015-januaryfebruary/profit-margin-increases-with-farm-
size.aspx#.VpU3B5MrLVo.
\69\ Robert Hoppe, Profit Margin Increases with Farm Size, (Feb. 2,
2015), U.S. Dep't of Ag. Econ. Research Serv., http://www.ers.usda.gov/
amber-waves/2015-januaryfebruary/profit-margin-increases-with-farm-
size.aspx#.VpU3B5MrLVo.
\70\ Robert Hoppe, Profit Margin Increases with Farm Size, (Feb. 2,
2015), U.S. Dep't of Ag. Econ. Research Serv., http://www.ers.usda.gov/
amber-waves/2015-januaryfebruary/profit-margin-increases-with-farm-
size.aspx#.VpU3B5MrLVo.
\71\ Robert Hoppe, Profit Margin Increases with Farm Size, (Feb. 2,
2015), U.S. Dep't of Ag. Econ. Research Serv., http://www.ers.usda.gov/
amber-waves/2015-januaryfebruary/profit-margin-increases-with-farm-
size.aspx#.VpU3B5MrLVo.
---------------------------------------------------------------------------
Another challenge to donation by farmers or other low-profit-margin
businesses is the lack of coverage for the ancillary costs of food
donation. As outlined previously, farms face the steepest costs in
getting food to food recovery organizations. Yet, the enhanced
deduction does not explicitly provide coverage for the ancillary costs
associated with food recovery.\72\ It is not in the financial interest
of farmers to incur these costs when they are not offset by tax
incentives, thus, much of this food continues to go to waste.
California helps alleviate some of these costs by offering a tax credit
that explicitly covers 50% of the costs incurred by the taxpayer in
connection with the transportation of donated food.\73\ Because many
businesses cite the costs of transporting donated food items as a key
barrier to donation, California's model is worth analyzing for
potential applicability nationally.
---------------------------------------------------------------------------
\72\ Community Solutions Act of 2001: Hearing on H.R. 7 Before the
Subcomm. on Human Res. & the Subcomm. on Select Revenue Measures of the
H. Comm. on Ways and Means, 107th Cong. 98, 100-01 (2001) (statement of
Bill Reighard, President, Food Donation Connection) (testifying
businesses are losing money due to the costs associated with properly
saving excess food); see also 42 U.S.C. 1791 (2015) (requiring that
donated food must meet all applicable state and local food quality and
labeling standards in addition to Federal requirements); [I].R.C.
170(e)(1) (2015); Charitable Contributions: For Use in Preparing 2014
Tax Returns, I.R.S., Dep't of Treasury (Jan. 13, 2015), http://
www.irs.gov/pub/irs-pdf/p526.pdf.
\73\ Cal. Rev. & Tax. Code 17053.12 (2015), http://
leginfo.legislature.ca.gov/faces/
codes_displaySection.xhtml?lawCode=RTC§ionNum=17053.12.
---------------------------------------------------------------------------
Because many farms operate on very low profit margins, any
additional economic benefit they can receive for excess food that they
grew but could not sell could increase their profit margins and keep
them in business. At the same time, food straight from the farm is
often some of the healthiest food available, so incentivizing the
donation of this food can greatly benefit food-insecure Americans. A
tax credit, which is not contingent on the size of a donor's taxable
income, could provide a larger incentive for farmers. To offset the
specific costs that are most problematic for farmers, such a credit
could also explicitly provide coverage for the ancillary costs
associated with food donation, like transportation or storage. Other
incentive models should also be examined for potential to address the
unique challenges and costs faced by farmers attempting to recover
healthy, wholesome food.
V. Conclusion
Forty percent of the food produced in the U.S. goes uneaten,
resulting in 62.5 million tons of wasted food each year.\74\ This waste
results in the loss of natural resources, including the 25% of the
U.S.'s fresh water and 300 million barrels of oil that are used to
produce food that ends up in landfills.\75\ Food waste presents a grave
threat to our economy, our health, and our environment. It has been
estimated that redistributing just 30 percent of all the food lost in
the United States could feed every food-insecure American their total
diet.\76\ Despite several compelling policies, current laws still
perpetuate barriers to food conservation and recovery. Addressing the
barriers identified above can significantly reduce the amount of food
waste and increase the amount of healthy, safe and wholesome food
recovered across the food system.
---------------------------------------------------------------------------
\74\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 10
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
\75\ Kevin D. Hall, et al., The Progressive Increase of Food Waste
in America and Its Environmental Impact, PLoS ONE 4(11): e7940, (2009),
http://journals.plos.org/plosone/article?id=10.1371/
journal.pone.0007940.
\76\ Dana Gunders, Natural Resources Def. Council, Wasted: How
America is Losing Up to 40% of its Food From Farm to Fork to Landfill 4
(2012).
---------------------------------------------------------------------------
Attachment 1
Consumer Perceptions of Date Labels: National Survey
Authors: Emily Broad Leib, Christina Rice, Roni Neff, Marie Spiker,
Ali Schklair, Sally Greenberg.
Background & Methods
Each year, 40% of the United States food supply goes to waste.\1\
The growing, transporting, processing, and disposing of this uneaten
food costs us $218 billion each year, and \2/3\ of this lost economic
value is due to household food waste.\2\ An important driver of
household food waste is consumer confusion over date labels.\3\ Date
labels are those dates that are applied to foods and accompanied by
prefixes such as ``sell by,'' ``best before,'' and ``use by,'' among
others. A U.K. study found that 20% of consumer waste occurs because of
date label confusion.\4\
Because date labels are not federally regulated and state-level
regulations, where they exist, are inconsistent, consumers face a
dizzying array of unstandardized labels on their food products. Many
people throw away food once the date passes because they mistakenly
think the date is an indicator of safety, but in fact for most foods
the date is a manufacturer's best guess as to how long the product will
be at its peak quality. With only a few exceptions, the majority of
food products remain wholesome and safe to eat long past their
expiration dates. When consumers misinterpret indicators of quality and
freshness for indicators of a food's safety, this increases the amount
of food that is unnecessarily discarded. A recent report found that
standardizing date labeling is the most cost-effective solution for
reducing food waste, and could help to divert 398,000 tons of the food
that is wasted each year.\2\
We conducted a survey to gain further insights into consumer
perceptions of date labels. This survey was fielded online to a
demographically representative sample of 1,029 adults from April 7-10,
2016. These questions were part of a CARAVAN' omnibus survey
that is conducted twice a week by ORC International. The findings
presented here are one piece of a larger analysis of consumer
perceptions of date labels.
Take Home Messages
Our findings confirm that consumers use date labels to make
decisions about discarding food: over \1/3\ always discard food close
to or past the date on the label, and 84% do so at least occasionally.
One-third of consumers wrongly think that date labels are federally
regulated, and another 26% are unsure. The survey found that for future
data label standardization, some labels would be particularly effective
in communicating with consumers. ``Best if used by'' was most commonly
seen as an indicator of food quality (70%) and only 12% viewed it as a
food safety label. ``Expires on'' was most commonly seen as an
indicator of food safety (54%), and relatively few respondents (23%)
saw it as referring to quality. Because all six of the labels we tested
are currently used as quality indicators, many foods with the ``expires
on'' label are unnecessarily wasted. We can build on consumer
perceptions of the meanings of different labels to help consumers
better identify date labels that indicate safety versus those that are
only intending to communicate peak quality.
Millenials were more likely to view date labels as indicators of
food safety, more likely to think date labels are federally regulated,
and more likely to discard food past the date on the label.
Detailed Findings
Consumers use date labels to make decisions about discarding food.
Over \1/3\ of the population (37%) says they always or usually
throw away food because it is close to or past the date that appears on
the package. 84% of consumers throw out food based on date labels at
least occasionally. Notably, younger consumers (age 18-34) were most
likely to discard food based on the date label, while older consumers
(65+) were the least likely to do so.
84% of Consumers At Least Occasionally Discard Food Close To Or Past
the Date on Its Package
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Consumers have misperceptions and uncertainty about what date
labels actually mean.
We examined perceptions of six date labels: ``best by,'' ``best if
used by,'' ``expires on,'' ``freshest by,'' ``sell by,'' and ``use
by.'' The survey found a striking amount of diversity in interpretation
of the meaning of these labels, suggesting a need to standardize
labeling and better educate consumers. The labels most commonly
perceived as indicators of food quality were ``best if used by,''
``best by,'' and ``freshest by,'' which were perceived as indicators of
quality by 70%, 67%, and 62% of consumers, respectively. Both ``best if
used by'' and ``best by'' were also relatively unlikely to be
misperceived as food safety labels. However, ``freshest by'' was more
confusing to consumers, with 9% seeing it as a food safety label and
11% unsure of the meaning. About half the respondents saw ``expires
on'' (54%) as an indicator of food safety. Many respondents also saw
``use by'' (42%) as an indicator of food safety; however, 40% of
respondents perceived ``use by'' as a quality label. The majority of
consumers correctly interpreted the ``sell by'' label as an indicator
to stores about when to stop selling food (81%). Nonetheless, still 7%
saw it as a safety label and 9% as a quality label. Younger consumers
(age 18-34) were most likely to view all of these labels as food safety
labels, while those aged 65+ were least likely to do so.
Consumer Confusion Over Date Labels
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
One-third of consumers wrongly think that date labels are federally
regulated.
There was considerable uncertainty and misinformation about whether
the Federal Government regulates date labels. 36% of the population
wrongly answered that date labels are federally regulated, and 26% were
unsure. Only 1% said they are federally regulated only for specific
foods, which is technically the correct answer: the only food for which
date labels are regulated federally is infant formula; all other foods
are regulated at the state level or not at all, depending on the state.
Those who were more likely to think that labels are federally regulated
included younger consumers (18-34), African Americans, Hispanics,
households of three or more, and households with children.
36% of Consumers Think Date Labels Are Federally Regulated
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Consumers' willingness to throw away foods past the ``use by'' date
depends on the food.
Consumers were also asked about their frequency of discarding food
based on the ``use by'' label. We found that they were most cautious
about raw chicken, with 50% of all respondents ``always'' throwing away
raw chicken past the ``use by'' date. Consumers were least cautious
about unopened canned goods and breakfast cereal. But even for these
less perishable foods, 12% and 9% of consumers still reported that they
``always'' throw away canned goods and breakfast cereal, respectively,
past the ``use by'' date. For those foods most likely to cause concern,
consumer perceptions of the ``use by'' label may translate into large
amounts of food wasted: raw chicken, pasteurized milk, and deli meats
were thrown away ``always'' or ``most of the time'' by 69%, 59%, and
61% of consumers, respectively. Of those products, only deli meat has
been shown to increase in risk after the date.\5\
Younger consumers (18-34) were more likely to ``always'' discard
foods past the ``use by'' date. This was true for all foods except raw
chicken and prepared foods, for which rates of discarding past the date
were uniformly high across age groups. Households with children were
more likely than households with no children to discard multiple foods.
Household income did not affect willingness to throw away food past the
date, by and large, but the lowest income category (less than $35k/
year) was more likely to ``never'' discard raw chicken and deli meats--
more expensive items--past the ``use by'' date.
How often do consumers report discarding foods that have passed the
``use by'' date?
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Conclusion
This survey aimed to understand the extent to which consumers are
confused about date labels, learn about their perceptions regarding
whether labels are federally regulated, and identify which labels most
clearly communicate quality versus safety. This report confirms
previous findings that consumers are confused by date labels. As a
result, they unnecessarily discard food with a high frequency, which
can be a significant contributor to the wasted food problem in the
United States. In addition, as millenials were more likely to view date
labels as indicators of food safety, more likely to think date labels
are federally regulated, and more likely to discard food past the date
on the label, survey findings show that work is needed to ensure that
food waste does not continue to increase with future generations of
consumers. Survey results also identified those date labels that most
clearly communicate safety versus quality, which can be helpful as
industry, nonprofit organizations, and policymakers examine options to
improve consumer awareness by standardizing date labels across the food
supply.
Survey results indicate that standardizing date labels and
increasing consumer education on the meaning of date labels can help to
reduce the significant amount of food that consumers unnecessarily
discard. Consumers discarding less food can help meet the U.S.'s
national food waste reduction goal to halve the country's level of food
waste by 2030, and it can decrease the amount of precious resources
that are wasted producing food that unnecessarily ends up in the
landfill instead of on consumer's plates.
References
1. Hall K.D., Guo J., Dore M., Chow C.C. The progressive increase
of food waste in America and its environmental impact. PloS One. 2009
Nov. 25;4(11): e7940.
2. ReFED. A Roadmap to reduce consumer food waste by 20 percent.
2016. www.refed.com.
3. Harvard Food Law and Policy Clinic and National Resources
Defense Council. The Dating Game: How confusing date labels lead to
food waste in America. 2013. http://www.chlpi.org/wp-content/uploads/
2013/12/dating-game-report.pdf.
4. Waste & Resources Action Programme. Consumer insight: date
labels and storage guidance. 2011. http://www.wrap.org.uk/content/
consumer-insight-date-labels-and-storage-guidance.
5. United States Department of Agriculture. Quantitative Assessment
of Relative Risk to Public Health from Foodborne Listeria monocytogenes
Among Selected Categories of Ready-to-Eat Foods. 2003. http://
www.fda.gov/downloads/Food/FoodScienceResearch/UCM197330.pdf.
Attachment 2
The Dating Game: How Confusing Food Date Labels Lead to Food Waste in
America
September 2013
Report R:13-09-A
NRDC
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Authors
This report was produced in partnership between the Harvard Food
Law and Policy Clinic and the Natural Resources Defense Council.
The lead author of this report is Emily Broad Leib, Director of the
Harvard Law School Food Law and Policy Clinic (a division of the Center
for Health Law and Policy Innovation), with input, editing, and
production support from Dana Gunders at the Natural Resources Defense
Council.
Additional coauthors include: Juliana Ferro, Annika Nielsen, Grace
Nosek, and Jason Qu.
Portions of this report are based on previous research and writing
by Jacqueline Pierluisi, Lauren Sidner, and Nathan Rosenberg, students
in the Harvard Food Law and Policy Clinic, with research assistance
from Harvard Food Law Society members Amanda Ravich, Elizabeth Rosen,
Erin Schwartz, Jane Wang Williams, and Margaret Wilson.
Acknowledgements
This report would not have been possible without the assistance and
cooperation of Mitzi Baum, Kendra Bird, Jean Buzby, Erin Daly, Dr.
Angela Fraser, Dr. Elise Golan, Wayne Melichar, Dr. Elliot Ryser, Alex
Schmitt, and Jean Schwab.
We'd also like to thank the following people for reviewing this
report. Reviewers do not necessarily concur with the paper's
recommendations but have advised on portions of its content.
Jose Alvarez, Senior Lecturer, Harvard Business School; former CEO,
Stop & Shop/Giant Landover
Jonathan Bloom, Author of American Wasteland
Sarah Klein, Senior Staff Attorney, Food Safety Program Center for
Science in the Public Interest
Dr. Theodore Labuza, Professor of Food Science and Engineering,
Univ. of Minnesota
Dr. Roni Neff, Program Director, Food System Sustainability and
Public Health, Johns Hopkins Center for a Livable Future
Doug Rauch, Founder, Daily Table; former President, Trader Joe's
About the Harvard Law School Food Law and Policy Clinic
The Harvard Food Law and Policy Clinic, a division of the Center
for Health Law and Policy Innovation, is an experiential teaching
program of Harvard Law School that links law students with
opportunities to serve clients and communities grappling with various
food law and policy issues. The Clinic strives to increase access to
healthy foods, prevent diet-related diseases, and assist small and
sustainable farmers and producers in participating in local food
markets. For more information, visit http://blogs.law.harvard.edu/
foodpolicyinitiative/ or follow on Twitter @HarvardFLPC.
About NRDC
The Natural Resources Defense Council (NRDC) is an international
nonprofit environmental organization with more than 1.3 million members
and online activists. Since 1970, NRDC's lawyers, scientists, and other
environmental specialists have worked to protect the world's natural
resources, public health, and the environment. NRDC has offices in New
York City, Washington, D.C., Los Angeles, San Francisco, Chicago,
Montana, and Beijing. Visit them at www.nrdc.org and follow them on
Twitter @NRDC.
Table of Contents
Executive Summary
Introduction
Chapter 1: History of U.S. Date Labeling: A Piecemeal Response to
Consumer Interest in Date Labels
Chapter 2: The Current Regulatory Regime
Federal Law
Federal Voluntary Guidance
State Law
Local Regulations
The Role of Industry
Chapter 3: Shortcomings of the Current System
Inconsistent and Unreliable Wording and Methods of
Determination
Consumer Confusion and Misinterpretation of Link to Food Safety
Consumer Food Waste
Economic Losses and Inefficiencies for Manufacturers,
Distributors, and Retailers
Challenges for Food Recovery Initiatives and Anti-Hunger
Organizations
Chapter 4: Recommendations
Standardize and Clarify the Food Date Labeling System Across
the United States
The Role of Industry, Government, and Consumers
Appendix A: Congressional Delegation of Food Labeling Authority to
Agencies
Appendix B: State Requirements in Brief; Supporting Charts for
Figures 2 and 3
Appendix C: State Date Labeling Regulations in Full
Endnotes
Executive Summary
The waste of edible food by consumers, retailers, and manufacturers
poses a significant burden to the American food system. Wasted food
costs consumers and industry money; squanders important natural
resources that are used to grow, process, distribute, and store
America's food supply; and represents a missed opportunity to feed the
millions of food-insecure households in the United States that are
struggling to access healthy, affordable food. Misinterpretation of the
date labels on foods is a key factor leading to this waste.
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Photo: www.foodwa stemovie.com.
Improving date labeling policies and practices can decrease
consumer confusion, which will not only reduce food waste, but also
improve food safety. Date labels on food come in a dizzying variety of
forms including ``use by,'' ``best before,'' ``sell by,'' and ``enjoy
by'' dates, yet these simple markers are both poorly understood and
surprisingly under-regulated, such that their meanings and timeframes
are generally not defined in law. Because regulators, industry players,
and citizens have become accustomed to seeing date labels on many food
products over time, policymakers have not asked important questions
about the date labeling system, and there has been a dearth of rigorous
policy analyses of how these labels affect consumers' choices
surrounding purchasing and discarding food products.
This policy brief examines the historical impetus for placing dates
on food--namely a desire to indicate products' freshness--and the ways
in which the system has failed to meet this goal, while creating a
range of ancillary problems. Relevant Federal laws and authorities are
described along with a review of the legislative history on this topic,
and a comparison of state laws related to food date labeling is
provided. The paper then describes why and how date labels contribute
to the waste of edible food in the United States and explains
specifically how:
The lack of binding Federal standards, and the resultant
state and local variability in date labeling rules, has led to
a proliferation of diverse and inconsistent date labeling
practices in the food industry. Such inconsistency exists on
multiple levels, including whether manufacturers affix a date
label in the first place, how they choose which label phrase to
apply, varying meanings for the same phrase, and the wide range
of methods by which the date on a product is determined. The
result is that consumers cannot rely on the dates on food to
consistently have the same meaning.
This convoluted system is not achieving what date labeling
was historically designed to do--provide indicators of
freshness. Rather, it creates confusion and leads many
consumers to believe, mistakenly, that date labels are signals
of a food's microbial safety, which unduly downplays the
importance of more pertinent food safety indicators.
This confusion also leads to considerable amounts of
avoidable food waste as the mistaken belief that past-date
foods are categorically unsuitable for consumption causes
consumers to discard food prematurely.
Inconsistent date labeling policies and practices harm the
interests of manufacturers and retailers by creating increased
compliance burdens and food waste at the manufacturer/retail
level.
Date labeling practices hinder food recovery and
redistribution efforts by making the handling of past-date
foods administratively and legally complex.
After analyzing these five core problems with the contemporary date
labeling regime, this report will introduce recommendations on how to
begin to remedy the food waste and food safety issues related to date
labeling, by creating a system in which date labels more clearly
communicate information. Recommendations are broken into two sections:
the first section proposes key changes to the date labeling system
across the United States, and the second section identifies relevant
stakeholders and describes actions that each should take to address the
issue.
In brief, the recommendations are as follows:
I. Standardize and Clarify the Food Date Labeling System Across the
United States
1. Make ``sell by'' dates invisible to the consumer: ``Sell by''
dates generate confusion and offer consumers no useful
guidance once they have brought their purchases home.
Therefore, ``sell by'' and other date labels that are used
for stock control by retailers should be made invisible to
consumers. Products should only display dates that are
intended to communicate to the consumer.
2. Establish a reliable, coherent, and uniform consumer-facing
dating system: The following five recommendations on how to
standardize and clarify date labels will help establish a
more effective system of consumer-facing dates that
consumers can understand and trust. The system should be
consistent across products to the extent it makes sense.
Establish standard, clear language for both quality-
based and safe-
ty-based date labels: The language used before dates on
food products
should be clarified and standardized to better inform
consumers of the
meaning of different dates. The words used should (1) be
uniform for a par-
ticular meaning across the country and across products;
(2) be unambiguous
in the information they convey; and (3) clearly delineate
between safety-
based and quality-based dates.
Include ``freeze by'' dates and freezing information
where applica-
ble: Promote the use of ``freeze by'' dates on perishable
food products to
help raise consumer awareness of the benefits of freezing
foods and the
abundance of food products that can be successfully
frozen in order to ex-
tend shelf life.
Remove or replace quality-based dates on
nonperishable, shelf-sta-
ble products: Removing ``best before'' or other quality
dates from shelf-sta-
ble, nonperishable foods for which safety is not a
concern would reduce
waste of these products and increase the weight given to
labels placed on
products that do have safety concerns. Some type of date
may still be use-
ful, such as an indication of shelf life after opening
(e.g., ``Best within XX
days of opening'') or the date on which the product was
packed (e.g., ``Max-
imum quality XX months/years after pack date'')
Ensure date labels are clearly and predictably
located on packages:
Consumers should be able to easily locate and understand
date labeling in-
formation on packages, perhaps through the use of a
standard ``safe han-
dling'' information box, akin to the Nutrition Facts
panel.
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Employ more transparent methods for selecting dates:
Create a set
of best practices that manufacturers and retailers can
use to determine
date labels for products, and consumers can learn about
if interested.
3. Increase the use of safe handling instructions and ``smart
labels'': Provide clear, pertinent food safety information
alongside date labels. This could include additional
phrases, QR codes that allow consumers to scan for more
information, or ``smart labels'' like time-temperature
indicators.
II. The Role of Industry, Government and Consumers
Collaboration amongst different stakeholders and entities is
necessary to standardize and clarify the current date labeling regime.
Each stakeholder has a role to play to improve the system. Three groups
of stakeholders have been identified; solutions targeted at each group
include:
1. Food Industry Actors: Industry actors can take meaningful steps
to reduce date label confusion, reduce food waste, and
improve consumer safety by:
Converting to a system which adopts the recommended
changes above:
making ``sell by'' information invisible to consumers;
establishing a stand-
ardized, easily understandable consumer-facing dating
system; and pro-
viding more safe handling information;
selling or donating near-expiration or expired
products; and
educating consumers on the meaning of date labels
and on safe food han-
dling.
2. Government: Congress, Federal administrative agencies, state
legislatures, and state agencies should work towards a
system of date labeling that is more standardized, more
easily understood by consumers, and less arbitrary. The
Federal Food and Drug Administration and U.S. Department of
Agriculture have existing authority to regulate misleading
labels, and should use this authority to reduce confusion
around date labeling. Otherwise, Congress can act to create
overarching Federal legislation. Regardless of whether a
Federal law is passed, existing Federal guidance should be
strengthened and streamlined so that states following such
guidance will begin to implement more similar state laws
and regulations.
3. Consumers and Consumer-Facing Agencies and Organizations:
Increased consumer education--covering everything from the
meaning of date labels, to the importance of proper
refrigeration temperature, to strategies on how to
determine whether food is safe and wholesome to eat--will
be crucial regardless of whether policymakers decide to
implement changes to the current date labeling regime or to
maintain the status quo. Federal, state, and local agencies
and organizations can conduct consumer outreach and
education to build awareness of proper food safety,
handling, and storage, as well as the high rates of food
waste due to date label confusion and the detrimental
effects of such waste. Consumers can act now by educating
themselves as well.
Revising the convoluted and ineffective system of date labels is
one of the most straightforward ways we can address the rising rates
wasted food, while providing a service to consumers by improving both
food safety outcomes and economic impacts.
Introduction
America is fixated on food--we have television channels devoted to
it, competitions revolving around it, and every manner of book, blog,
and newspaper column revering it. For a country so obsessed with food,
it is alarming how much of it Americans throw away, despite the serious
ethical, environmental, and financial implications of this waste. An
estimated 40 percent of food in the United States goes uneaten,\1\ and
according to even the most conservative estimates, Americans waste 160
billion pounds of food each year.\2\ The rate of food loss in the
United States far exceeds that of much of the rest of the world, with
the average American consumer wasting ten times as much as food as the
average consumer in Southeast Asia.\3\ One key contributor to wasting
food is confusion around food expiration dates.
Despite the high rate of food waste, almost 15 percent of U.S.
households were food-insecure at some point in 2011.\4\ It has been
estimated that redistributing 30 percent of all the food lost in the
United States could feed every food-insecure American their total
diet.\5\
Wasted food has serious environmental consequences as well.\6\ When
food is wasted, all of the resources used to produce, store, transport,
and handle that food--including arable land, labor, energy, water,
chemicals, and oil--are also wasted.\7\ A study by McKinsey & Company
projected that roughly 100 million acres of cropland could be saved if
developed countries reduced consumer food waste by 30 percent.\8\ It is
estimated that approximately 25 percent of America's freshwater use
goes into the production of wasted food.\9\
Compounding these environmental and ethical harms are the financial
losses incurred by American families when enough food to fill the Rose
Bowl is wasted each day in the United States.\10\ At the consumer
level, according to one calculation, food waste costs the average
American family of four $1,365-$2,275 per year.\11\
Those studying the problem of food waste in the United States and
abroad have identified confusion over food date labeling as a major
contributing factor at both the industry and the consumer level.\12\
Research from the United Kingdom support a connection between the
misinterpretation of date labels and wasted food,\13\ and a study
conducted by the Bio Intelligence Service for the European Commission
identified the standardization of food date labeling as an important
policy intervention to reduce food waste.\14\
This policy brief explores the relationship between food waste,
food safety, and the regulatory systems that govern, or fail to govern,
food date labeling practices in the United States. It will describe how
the contemporary date labeling regime creates confusion among
consumers, obstacles for food service providers, and inefficiencies in
the food industry, ultimately contributing to and exacerbating the
waste of edible food in this country.
The brief will begin by tracing the history of food date labeling
in the United States and then proceed to analyze the current labeling
landscape at the Federal, state, local, and industry levels. Drawing on
the results of a comprehensive literature review, a 50 state study of
current date labeling regulations, and data from interviews with
experts in government, industry, and food science, this paper will
outline key problems with the contemporary date labeling regime: its
disorienting effects on consumers, its failure to convey important food
safety information (despite the appearance of doing so), its negative
economic impacts across the food sector, and its hindrance of food
recovery initiatives. All of these factors lead directly to food waste
in American homes and across the supply chain, throughout production,
distribution, retail, food service, and home consumption.
Based on this analysis, the brief will conclude by outlining
recommendations for how different stakeholders can take action to
improve current practices and foster policy changes to begin to remedy
the negative impacts of date labeling on food waste in the United
States.
Chapter 1: History of U.S. Date Labeling: A Piecemeal Response To
Consumer Interest in Date Labels
The urbanization of the United States divorced most consumers from
the creation of their food--these consumers began purchasing the bulk
of their food, rather than growing it themselves, and had little
personal knowledge concerning the freshness and shelf life of their
purchases.\15\ As Americans began to buy more processed or packaged
foods, this knowledge deficit forced consumers to rely on assurances
from retailers that the foods they were purchasing were fresh, yet
these assurances often proved insufficient to fully dispel consumer
fears.\16\
By the 1970's, consumer concern surrounding the freshness of food
crystallized,\17\ and diverse stakeholders within the food industry,
government, and public interest sector began to seriously explore what
is known as open dating in response to consumer unease. Open dating
uses a date label that includes a month, day, and year in a format
clearly evident to the consumer.\18\ Out of a nationwide survey of
250,000 shoppers published in 1975, 89 percent of respondents favored
this kind of dating system.\19\ According to another survey, 95 percent
of respondents listed open dating as the ``most useful'' consumer
service for addressing product freshness concerns.\20\ ``Open'' dating
differed from the long-established industry practice of ``closed''
dating, in which manufacturers and retailers used symbols or numerical
codes that were undecipherable to consumers to manage their inventory
and stock rotation,\21\ without any intention of relaying that
information directly to consumers.\22\ Throughout the 1970s, many
supermarkets voluntarily adopted open dating systems in response to
mounting consumer interest.\23\
Government actors also began to react to rising consumer demand for
more objective, accessible indicators of product freshness and quality
during this period. By 1973, ten state governments had adopted laws or
regulations mandating open dating for certain classes of food
products.\24\ The Federal Government also began increasing its
engagement with the issue of date labeling by supporting research on
this topic. In 1975, the General Accounting Office (now the Government
Accountability Office or GAO) issued a report to Congress focusing on
``problems with stale or spoiled foods'' and advocating a uniform date
labeling system to address consumer concerns.\25\ In 1979, the Office
of Technology Assessment (OTA), which existed as an office of the U.S.
Congress from 1972 to 1995, was assisted by a task force of consumer
representatives, retailers, processors, wholesalers, scientific
experts, and government officials in publishing a comprehensive report
for the Senate on open dating to address ``[consumer] concern over the
freshness of food.'' \26\ Critically, even in the 1970s supporters of
open dating recognized that assuring the microbiological safety of food
could not be achieved using date labels.\27\ Indeed, the OTA report
flatly stated that ``there is little or no benefit derived from open
dating in terms of improved microbiological safety.'' \28\ An analysis
of the intersection between date labels and food safety will be
discussed at length in the sections below.
Food labeling received the concerted attention of Congress during
this time period, yet legislation on date labeling ultimately was not
passed.\29\ Congressional action could have regulated date labels
across the country in a predictable, empirically-grounded way and would
have standardized industry practices and preempted widespread variation
in state regulations. Members of Congress recognized these benefits,
and during the 1970s and 1980s introduced several legislative proposals
to institute a uniform open code dating system on a nationwide scale,
mostly via amendments to the Federal Food, Drug, and Cosmetic Act.\30\
At least ten bills were introduced by the 93rd Congress (1973-1975)
alone.\31\ The 1975 GAO report encouraged Congress to adopt one of
these proposed amendments.\32\ The Food and Drug Administration (FDA)
also welcomed the potential for an explicit statutory mandate over date
labeling, even while maintaining that it already had authority to
regulate date labeling under its existing powers to control
adulteration and misbranding.\33\ However, none of the Federal
legislative efforts gained enough momentum to pass into law and create
a uniform, nationwide system.\34\
A variety of stakeholders shaped the debate about open dating
legislation. In addition to the role consumers played in demanding more
information about their products, various food industry actors also
played a role. At first, supermarket chains opposed such regulation
because they believed that ``open dating would add to the price of the
food, since shoppers would pick over the packages on the supermarket
shelves, selecting only the newest,'' \35\ causing increased losses of
outdated, but edible food, and thus forcing supermarkets to raise
prices in order to account for the discarded products.\36\ However,
after this initial opposition, supermarkets began to use open dates
voluntarily in response to consumer demand, and even advertised the new
practice as a promotional strategy to attract customers.\37\ Then, when
Congress tried to pass legislation that would regulate open dating,
spokespersons from the National Association of Food Chains argued
before Congress that the industry was already voluntarily spending
millions of dollars on food labeling and that the additional Federal
requirements would simply impose higher costs and ``deter [members of
the food chains] from adopting further voluntary, progressive programs
in the future.'' \38\
Policymakers were also discouraged from coming up with a standard
Federal model because of the difficulties of trying to harmonize the
``differences in views on type of date, explanation of date, and foods
covered.'' \39\ Further, food lawyers--even those advocating for a
uniform date labeling system--questioned whether Congress was ``willing
to pass a strong preemption provision'' that would invalidate all state
laws, and thus successfully achieve a uniform national date labeling
regime consistently applied in all states.\40\
Due to the lack of success of open dating legislation, the 1970s
saw the uneven and piecemeal creation of an American date labeling
regime, as state governments and industry actors responded to
consumers' interest in fresh, unspoiled food in a range of ways, but
with no unifying strategy at the Federal level.\41\ The resulting
inconsistencies across state and local laws quickly began to create
consumer confusion \42\ and industry distress \43\ which did not go
unnoticed, even by early observers. Food lawyers recognized that the
proliferation of inconsistent state laws could affect interstate
commerce, and hinted at the idea that it could inflate the price of
food, reiterating the initial concern raised by supermarket chains that
open labeling would lead to food waste and higher food prices.\44\ For
example, costs would go up if food companies needed to use separate
packaging lines for products entering each jurisdiction in order to
comply with divergent state laws.\45\
Streamlining open dating laws across the nation, so that the food
industry could adapt to a single legal regime instead of trying to
comply with the proliferation of inconsistent state laws, provided then
and continues to provide a strong rationale for Congress to pass
legislation that can improve productivity and efficiency in the food
industry. This would also ensure that consumers are provided consistent
and coherent messages from the dates they are seeing.\46\ The GAO
concluded its discussion of open code dating in 1975 by warning that
failure to implement a national system would ``add to confusion,
because as open dating is used on more products, it would continue
letting each manufacturer, retailer, or state choose its own dating
system.'' \47\ Nevertheless, no Federal legislation has been passed for
more than 40 years and this lack of uniformity persists today, leading
to wasteful food practices within the American food system.
After a more than 2 decade lapse in Federal consideration of these
issues, the next move towards a Federal date labeling requirement
occurred in the late 1990s. In 1999, Congressman Frank Pallone (D-NJ)
introduced the National Uniform Food Safety Labeling Act of 1999, which
would have required food to bear a date after which the food should no
longer be sold ``because of diminution of quality, nutrient
availability, or safety,'' preceded by the words ``use by.'' \48\ The
bill was stalled at the House Energy and Commerce Committee and did not
pass.
Similarly, in 1999, Congresswoman Nita Lowey (D-NY) introduced the
Food Freshness Disclosure Act and reintroduced similar bills in 2001,
2003, 2005, 2007, and 2009.\49\ All the bills were referred to the
House Energy and Commerce Committee, but none passed out of Committee.
The bills proposed to amend the Food, Drug, and Cosmetic Act by adding
the requirement of applying uniform freshness dates on food. Uniformity
would be achieved by requiring that all freshness dates be preceded by
the phrase ``best if used by.'' \50\ Foods identified under 21 CFR
101.9(j) as exempt from the nutritional labeling requirements of the
Nutritional Labeling and Education Act (including food products served
at restaurants or schools, raw fruits and vegetables, and certain
ready-to-eat foods, such as foods sold at bakeries) would also be
exempt from this legislation.\51\ The bill would require the
``manufacturer, packer, or distributor of the food'' to select the
freshness date based on tests that demonstrate that when consumed, the
nutrient quality of the food would still be the same as indicated by
the nutrition facts panel.\53\ If passed into law, this legislation
would be a positive step towards achieving a uniform Federal date
labeling system, but it could be strengthened in several ways, as
detailed by the recommendations included in this report. For example,
the new regulation could require affixing a safety-based date with a
different standardized term such as ``safe if used by'' on products
that are empirically proven to cause food safety risks rather than
requiring a ``best if used by'' date on all food products.
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Chapter 2: The Current Regulatory Regime
To understand how the food date labeling system contributes to
America's food waste problem, it is essential to review the different
legislative and regulatory systems that currently govern date labeling.
As discussed above, despite occasional Federal interest, no legislation
has been passed, and thus Federal law generally does not require or
regulate the use of date labels.\54\ This lack of coordinated action at
the Federal level increases the complexity of the food labeling regime
by causing a regulatory void that states and localities have attempted
to fill in various ways, resulting in a tremendously varied set of
state and local laws regarding the use of date labels. Industry has
also attempted to provide direction, with some food trade associations
that don't necessarily help to improve public health creating voluntary
guidance on date labeling practices for specific commodities. Because
none of these approaches are comprehensive, individual manufacturers
and retailers are often left to decide how date labels are actually
implemented.\55\
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The lack of formal definitions or standardization across date
labeling policies and practices is a problem because it gives
unreliable signals to consumers. Such inconsistency exists on multiple
levels, including whether manufacturers affix a date label in the first
place, how they choose which label category to apply, internal
inconsistency within each label category due to the lack of formal
legal definitions, and variability surrounding how the date used on a
product is determined. The result is that consumers cannot rely on the
dates on food to consistently have the same meaning.
This section analyzes the ways in which these regulatory and
industry forces operate and interact with each other. Ironically,
despite the original intention of increasing consumer knowledge about
their food, date labeling has become a largely incoherent signaling
device for consumers. Instead of offering the type of clear and
unambiguous information that consumers seek, date labels can and do
confuse and mislead them.
Federal Law
The scope of Federal laws governing food labeling is broad, but
does not currently address date labeling with any specificity or
consistency. Congress clearly has the power to regulate date labels
under the Commerce Clause in the U.S. Constitution, which gives
Congress power to regulate products sold in interstate commerce.\56\
Using this power, Congress has passed a number of Federal statutes that
govern labeling of different types of food, with two agencies having
the clearest delegation from Congress of authority over food labeling:
FDA and the U.S. Department of Agriculture (USDA). However, as
described in the previous section, because Congress has not
successfully passed national date labeling legislation to date, no
agencies have been given explicit authority to regulate in this realm.
The statutes and the provisions that are most relevant to food labeling
are discussed below, with excerpts of language from each Federal law
included in Appendix A.
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Congress clearly has the power to regulate date labels
under the Commerce Clause in the U.S. Constitution, which gives
Congress power to regulate products sold in interstate
commerce.
Agency Authority to Regulate
Food Labeling and Existing Laws Congress has never mandated that
FDA or USDA implement a national date labeling regime; \57\ however, it
has delegated general authority to both agencies to ensure food safety
and protect consumers from deceptive or misleading food package
information.\58\ Both FDA and USDA have the power to regulate food
labeling for the foods that fall under their respective purviews. FDA
has statutory authority to regulate the safety of all foods with the
exception of meat, poultry, and some fish, under the Food, Drug, and
Cosmetic Act of 1938, the Nutritional Labeling and Education Act of
1990, the Fair Packaging and Labeling Act of 1966, the Infant Formula
Act of 1980, and the Food Safety Modernization Act of 2011.\59\ On the
other hand, USDA has jurisdiction to regulate meat, poultry, and
certain egg products, under the Poultry Products Inspection Act of
1957, the Federal Meat Inspection Act of 1906, the Egg Products
Inspection Act of 1970, the Perishable Agricultural Commodities Act of
1930, and the Agricultural Marketing Act of 1946.\60\ FDA and USDA
share jurisdiction over certain products including eggs \61\ and fruits
and vegetables.\62\
FDA receives broad food labeling authority under several of the
Acts mentioned above, with its powers to regulate misbranded foods and
misleading labels under the Food, Drug, and Cosmetic Act being the most
robust.\63\ Since one of the purposes of the Food, Drug, and Cosmetic
Act is to protect the interest of consumers, the Act prohibits the
``adulteration or misbranding of any food.'' \64\ Food under FDA's
jurisdiction may be considered misbranded if the food's label is false
or misleading ``in any particular.'' \65\ USDA also has the power to
regulate misleading labels for all products under its purview, and has
vested the Food Safety and Inspection Service (FSIS), an enforcement
agency within USDA, with this authority.\66\ Under the Acts mentioned
above, USDA has broad authority to promulgate regulations to protect
consumers and ensure that products specifically regulated under each
Act are not misbranded.\67\ Similar to the Food, Drug, and Cosmetic
Act, under the provisions of these statutes, labels are considered
misbranded if they are false or misleading ``in any particular.'' \68\
As explained throughout the report, the current date label system leads
to consumer confusion and the waste of edible food.
If FDA and/or USDA agree that date labels are ``misleading,'' they
could make a case that their existing authority should be interpreted
to allow them to regulate date labeling as a form of misbranding of
food items, without any additional action on the part of Congress.
Importantly, these laws also require that FDA and USDA work
together in promulgating consistent regulations. For example, under
both the Poultry Products Inspection Act and the Federal Meat
Inspection Act, USDA must prescribe regulations for labels that are
consistent with the Food, Drug, and Cosmetic Act labeling
standards.\69\ Further, the Egg Products Inspection Act provides that
the two agencies must cooperate with one another in order to decrease
the burden on interstate commerce in labeling of eggs, because packages
that are not properly labeled could ``be sold at lower prices and
compete unfairly with the wholesome, not adulterated, and properly
labeled and packaged products.'' \70\ In the past, FDA and USDA have
issued joint notices about the regulation of eggs, specifically
requesting comments on whether the varying practices for placing
expiration dates on egg products would violate the misbranding
provisions of the Food, Drug, and Cosmetic Act and ``be misleading to
consumers given their expectations.'' \71\ These are some examples of
how the two agencies interact with each other and share responsibility
to ensure consistency across their respective regulations. FDA and USDA
should similarly work together to promulgate regulations that address
the misleading impact of date labels by ensuring that date labels are
standardized across food products.
Other government agencies also share the role of protecting the
interest of consumers from deceptive practices. In particular, the
Federal Trade Commission (FTC) has food labeling authority under the
Federal Trade Commission Act of 1914 if action is needed to prevent
``unfair methods of competition'' or ``unfair or deceptive acts or
practices in or affecting commerce.'' \72\ Further, FDA and FTC have
joint authority under the Fair Packaging and Labeling Act to create
regulations ``necessary to prevent the deception of consumers'' for any
consumer commodities, including food.\73\ In response to their shared
authority under Fair Packaging and Labeling Act, FDA and FTC created a
memorandum of understanding that gives FDA the authority to regulate
food labeling and FTC the authority to regulate food advertising in
order to prevent misleading information from reaching the consumer.\74\
If FDA and/or USDA agree that date labels are ``misleading,''
they could make a case that their existing authority should be
interpreted to allow them to regulate date labeling as a form
of misbranding of food items, without any additional action on
the part of Congress.
Similar to any coordinated response by FDA and USDA, the shared
responsibility already utilized by FDA and FTC could be a model for a
joint response to date labeling regulation, showcasing a way for
agencies to work together to streamline date labeling practices across
different foods.
Figure 1 below includes an illustration of the Federal agencies and
Acts that govern food labeling.
Figure 1: Congressional and Agency Authority in the Federal Food
Labeling System **
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
* Acts which give authority pertaining to date labeling on
foods.
** Note that FDA may have additional enforcement authority
shared with other agencies with regard to food safety, but this
chart focuses on primary authority over labeling for certain
food types.
The Current Federal Labeling Regime--How FDA and USDA Use Their Legal
Authority
While FDA could interpret its existing statutory authority to
enable it to regulate date labeling practices for the foods under its
purview,\75\ the agency has not done so. According to FDA, it ``does
not require food firms to place `expired by', `use by' or `best before'
dates on food products''; instead, ``this information is entirely at
the discretion of the manufacturer.'' 76 The only exception is infant
formula, which is subject to explicit FDA date labeling
requirements.\77\ In response to scandals resulting from recalls of
infant formula products that were causing illnesses among children
because the products lacked sufficient nutrients,\78\ and due to
findings that industry had too much discretion to decide the
appropriate nutritional content of these products,\79\ Congress passed
the Infant Formula Act of 1980, mandating that FDA set uniform
standards for the nutritional content of these products.\80\ However,
unlike the arguments around freshness discussed in the History Section,
the Infant Formula Act focused only on the nutritional content of
infant formula products. Under this Act, FDA established a range of
regulations impacting infant formula, including a requirement that its
labels include ``use by'' dates.\81\ The regulations mandate that
determinations used to assign such dates to infant formula must be
based on tests that prove the concentration of nutrients is adequate
for the health of children up to the marked date.\82\
When compared to FDA, USDA more explicitly addresses date labeling
for food products under its authority. With a few exceptions, such as
requiring a ``pack date'' for poultry products \83\ and a lot number or
``pack date'' for egg products certified by USDA,\84\ USDA also does
not generally require date labels on regulated products.\85\ However,
the agency does have technical requirements addressing how dates should
be displayed on USDA-regulated food products if they are employed
voluntarily or according to state law. Under these rules, a calendar
date ``may'' be applied to USDA-regulated products so long as it
includes a day and a month, and possibly a year in the case of frozen
or shelf-stable products.\86\ USDA also requires calendar dates to be
preceded by ``a phrase explaining the meaning of such date, in terms of
`packing' date, `sell by' date, or `use before' date,'' and notes that
such dates can be implemented ``with or without a further qualifying
phrase, e.g., `For Maximum Freshness' or `For Best Quality,' and such
phrases shall be approved by the Administrator [pursuant to procedures
outlined in 9 CFR 317.4].'' \87\ This latter rule is arguably the
most robust Federal regulation that exists, but it is limited in three
respects: (1) it applies only to USDA-regulated foods (poultry, meat,
certain egg products); (2) the three explanatory phrases that are
allowed (``packing,'' ``sell by,'' and ``use before'') are undefined by
the regulation and are allowed to be used interchangeably, which
highlights their lack of meaning and inability to communicate
significance to consumers; and (3) the rule makes the use of ``further
qualifying phrases,'' which could help correct ambiguity, totally
optional.
Federal Voluntary Guidance
Instead of actively regulating date labeling practices in a uniform
manner, the Federal Government has provided mostly voluntary guidance
on this subject. One example of voluntary guidance is the ``Uniform
Open Dating Regulation,'' \88\ a product of the National Institute of
Standards and Technology (NIST), a research and advisory body within
the U.S. Department of Commerce, in partnership with the National
Conference on Weights and Measures (NCWM), a not-for-profit corporation
committed to creating uniform national standards for various units of
measurement.\89\ Recognizing that the ``lack of uniformity between
jurisdictions could impede the orderly flow of commerce,'' \90\ the
NCWM has promulgated model regulations on open dating which they hope
will be adopted by all state and local jurisdictions.\91\ NCWM's model
regulations, which are published in NIST Handbook 130,\92\ set ``sell
by'' as the label date that jurisdictions should require for pre-
packaged perishable foods and ``best if used by'' as the date that
should be required for semi-perishable or long-shelf-life foods.\93\
The model regulations allow all foods to be sold after their label
dates, provided that they are of good quality and that perishable foods
are clearly marked as being past-date.\94\ NIST Handbook 130 also
includes guidance for properly calculating the label date \95\ and for
expressing the date on packaging.\96\
Thus far, according to the 2013 edition of NIST Handbook 130, five
states (Arkansas, Connecticut, Nevada, Oklahoma, and West Virginia)
have regulations in place that automatically adopt the most recent NCWM
Uniform Open Dating Regulation published in NIST Handbook 130.\97\
Three more states, (Michigan, South Dakota, and Washington) and the
U.S. Virgin Islands have adopted an earlier version of NIST Handbook
130 in whole or in part.\98\ In sum, while Federal guidance on the
topic of date labels does exist, only a minority of states have
implemented this voluntary guidance. Even though widespread adoption of
the most current edition of the guidance would create uniformity and
standardization across all states that adopt its open dating
provisions, the guidance in NIST Handbook 130 has flaws. For example,
as discussed in later sections, utilizing ``sell by'' dates increases
confusion and food waste, and thus these dates are not as effective at
communicating their significance to consumers. Suggestions on how date
labeling guidance can be strengthened to effectively decrease consumer
confusion, improve food safety, and reduce food waste will be discussed
below in the Recommendations section of the report.
Another example of Federal voluntary guidance is the FDA Food
Code.\99\ The FDA Food Code is a reference document issued by FDA that
provides model regulations for state and local governments on food
safety laws.\100\ Like NIST Handbook 130, adoption of the code is
voluntary. However, many states have chosen to adopt it because the FDA
Food Code reflects the expertise of dozens of food safety experts.
Importantly, the Code itself is not law; it only becomes binding when
states adopt it by statute or regulation, and states typically add
their own modifications. A new version of the FDA Food Code was
published every 2 years until 2001 and is now published every 4 years,
with the most recent version published in 2009.\101\
In sum, while Federal guidance on the topic of date labels
does exist, only a minority of states have implemented this
voluntary guidance.
The FDA Food Code addresses date labeling requirements in three
different areas: shellfish; \102\ refrigerated, ready-to-eat
potentially hazardous food; \103\ and reduced oxygen packaging.\104\
For example, for shellfish, the FDA Food Code suggests a date labeling
requirement for shellfish \105\ that has been adopted by many states.
For refrigerated, ready-to-eat potentially hazardous foods ``prepared
and held in a food establishment for more than 24 hours,'' the FDA Food
Code requires that they ``be clearly marked to indicate the date or day
by which the food shall be consumed on the premises, sold, or discarded
based on [specified] temperature and time combinations.'' \106\ The FDA
Food Code does provide some guidance, but it only applies date labeling
language to a limited number of food items.\107\ As mentioned above,
states adopt language of the FDA Food Code in their own legislation or
regulations; for example 13 states have adopted almost the exact same
language as the shellfish date labeling provision in the FDA Food
Code.\108\
State Law
The Supremacy Clause of the Constitution provides that when state
and Federal laws conflict, the conflicting state law will be
invalidated.\109\ Thus, state statutes are not preempted by Federal law
if they do not directly conflict with existing Federal
legislation.\110\ Because Federal regulation of date labels is so
limited, states consequently have vast discretion to regulate date
labels in almost any way they see fit. Certain states have used that
discretion enthusiastically, creating a system of stringent
requirements for date labels, while others have not regulated date
labels at all. The result is an inconsistent state regulatory scheme
that is not necessarily improving public health. One possible reason
for such wide variation is that depending on the state, date labels
fall under the purview of different state government departments,
including Department of Health, Department of Agriculture, Department
of Weights and Measures, Department of Commerce, or others.\111\
Furthermore, state law is not static; state legislatures are
constantly updating and amending the date labeling requirements.
Several states passed new date labeling laws within the past year. For
example, Georgia amended its date labeling rules in 2012 by adding a
definition for the term ``expiration date,'' (now defined as being
``synonymous with Pull Date, Best-By Date, Best Before Date, Use-By
Date, and Sell-By Date,'' and meaning ``the last date on which the
following FOOD products can be sold at retail or wholesale'') \112\ and
preventing sale after the expiration date of prepackaged sandwiches,
eggs, infant formula, shucked oysters, milk, and potentially hazardous
food labeled as ``keep refrigerated.'' \113\
Certain states have used that discretion enthusiastically,
creating a system of stringent requirements for date labels,
while others have not regulated date labels at all. The result
is an inconsistent state regulatory scheme that is not
necessarily improving public health.
This section explores some of the patterns across state date label
regulations that emerged from our 50 state research; it also highlights
the extreme variations among these regulations to illuminate how our
current food labeling system creates confusion for consumers and does
not necessarily improve food safety. Although the most defining feature
of the state-level regulation of date labels is its sheer
variability,\114\ there are several discernible patterns among the
regulations. States can be roughly grouped into four categories:
1. Those that regulate the presence of date labels on certain foods
but do not regulate sales after those dates;
2. Those that do not regulate the presence of date labels but
broadly regulate sales after such dates if date labels are
voluntarily applied;
3. Those that regulate both the presence of date labels and,
broadly, the sale of products after those dates; and
4. Those that do not require or regulate date labels at all.
According to our 50 state research, 41 states plus the District of
Columbia require date labels on at least some food items, whereas nine
states do not require them on any foods (see Figure 2, below).\115\ For
example, New York does not require date labels to be applied to any
products, while all six of its neighboring states--New Jersey,
Pennsylvania, Connecticut, Massachusetts, Vermont, and Rhode Island--
have such requirements. Twenty states plus the District of Columbia
also regulate the sale of food products after some label dates, while
30 states have no such restrictions (see Figure 3, below).
Massachusetts's regulations are an example of the kind of restrictions
states can impose on sales after the label date. In Massachusetts,
``food can only be sold past its `sell by' or `best if used by' date
if: (1) it is wholesome and its sensory physical qualities have not
significantly diminished; (2) it is segregated from the food products
which are not past date; and (3) it is clearly marked as being past
date.'' \116\ As with this example, even when regulations exist around
the use of date labels, very few states define what the words should
mean and virtually none delineate the process for determining the dates
(see Appendix C).
States also differ in the kinds of food they require to bear date
labels (see Figure 4, below) as well as the kind of date labels that
are required. Most states that require date labels or regulate the sale
of past-date products apply their regulations to specific foods, such
as shellfish, dairy/milk, or eggs. A handful of states regulate
perishable foods more generally.\117\ For example, Maryland requires
only that Grade A milk bear a ``sell by'' date \118\ and does not
require a date label on any other products; Minnesota, on the other
hand, requires ``quality assurance'' dates on perishable foods \119\
and eggs,\120\ and ``sell by'' dates on shellfish.\121\ The most common
food product that requires date labeling is shellfish, for which such
labeling is specifically regulated in 24 states and the District of
Columbia. Further, as previously mentioned, eight states have adopted
the NCWM Uniform Open Dating Regulation in whole or in part, meaning
that those states are more similar to one another in terms of their
regulations.\122\
Figure 2: States Requiring Date Labels on At Least Some Food Products
\127\
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 3: States Regulating Food Sales Past Some Label Dates
128-129
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 4: States Regulating Date Labeling \130\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Potentially
State Perishable Foods Hazardous Foods Milk/Dairy Meat/ Poultry Shellfish Eggs Other
\131\ \132\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama X X
Alaska X
Arizona X
Arkansas X
California X X
Colorado X
Connecticut X
Delaware X
Florida X X
Georgia X X X X X
Hawaii X X
Idaho
Illinois X
Indiana X X
Iowa X
Kansas X
Kentucky X X
Louisiana X
Maine X
Maryland X
Massachusetts X
Michigan X X X
Minnesota X X X
Mississippi X
Missouri
Montana X
Nebraska
Nevada X X
New Hampshire X X
New Jersey X X
New Mexico X
New York
North Carolina X
North Dakota X
Ohio X X
Oklahoma X X
Oregon X
Pennsylvania X X
Rhode Island X X
South Carolina X X
South Dakota
Tennessee
Texas X
Utah
Vermont X
Virginia X X
Washington X
Washington, D.C. X X X X X X X
West Virginia X
Wisconsin X X
Wyoming X
--------------------------------------------------------------------------------------------------------------------------------------------------------
The details of each state's individual regulations also vary
dramatically. The following examples only brush the surface of this
variation, but illustrate how widely states have departed from one
another in creating their open dating regulatory regimes:
In Michigan, packaged perishable foods must include a date
that may be displayed with or without explanatory terms such as
``sell by'' or ``best before,'' but if such terms are used,
only particular phrases may be used.\123\
Rhode Island requires that packaged bakery products contain
pull dates.\124\
New Hampshire and Georgia are the only states to explicitly
single out pre-wrapped sandwiches for regulation.\125\
In contrast with many other states, Minnesota and Ohio
explicitly preempt local ordinances on food labeling, reserving
all power in this arena to the state.\126\
New York is one of nine states that have no regulations
regarding food date labeling according to the qualifications
assessed in this report.
The figures on the preceding pages provide a broad overview of both the
patterns and the variations in state-level regulation of date labels. A
full list of state regulations can be found in Appendix C.
Local Regulationsions
Date labeling can also be regulated at the local level. The City of
Baltimore, for example, prohibits the sale of any perishable food past
its expiration date, whereas the State of Maryland does not.\133\ In
cases where cities have more stringent date labeling regulations than
the state in which they are located, inconsistency in the regulations
could lead to even greater consumer confusion, and could also stand in
the way of voluntary industry adoption of a more standardized dating
system. Repealing or amending such city ordinances that do not improve
public health and safety could allow for more consistency. For example,
New York City used to require ``expiration dates'' on milk cartons even
though the state of New York imposes no date labeling requirements on
any foods.\134\ In September 2010, the city repealed its date labeling
requirement and fell in line with the state-level approach.\135\ The
city recognized that its own rule for open dates was not necessary to
protect public health because if milk is ``handled properly,'' it will
still be safe to consume even after the expiration date passes.\136\
The City also noted that New York State had not reported any ``adverse
public health effects, poor milk quality or a decrease in milk demand''
arising from not requiring a ``sell by'' date at the state level.\137\
The Role of Industry
The inconsistent regulation of date labels at the Federal, state,
and local levels means manufacturers and other industry actors often
must decide the form and content of date labels.
Where no regulations exist, as is the case in many states and for
many categories of food, manufacturers are free to decide for
themselves which foods will display an open date and which will not.
Even when regulations mandate the presence of date labels on specific
foods, they almost never dictate the criteria that industry should use
to arrive at the date on the label, thus leaving the decision entirely
to industry discretion.
Some food trade organizations have responded to the lack of uniform
regulations by creating their own voluntary guidance for open date
labeling,138 but this guidance is not always consistent from one
organization to the next.\139\
Because of the lack of standardization, some retailers have even
taken it upon themselves to create date labeling practices for products
sold in their stores. For instance, in 2004 Wal-Mart started to require
its suppliers to place a ``best if used by'' date on all food products
in an effort to ensure consumers of the products' freshness.\140\
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The inconsistent regulation of date labels at the Federal,
state, and local levels means manufacturers and other industry
actors often must decide the form and content of date labels.
While this policy was created with the best of intentions and
helped to standardize labels, this change may have in fact led to
increased shelf-stable inventory that would have previously been sold
without a date label now risks being wasted when the date labels
expire.\141\
With increased expectations for the food industry to address social
and environmental concerns,\142\ improving the date labeling regime
actually provides an opportunity for the food industry to better serve
consumer interests while simultaneously creating positive environmental
and social change. Food companies may be able to benefit financially by
developing creative ``cause-related marketing'' strategies designed for
consumers interested in reducing food waste and willing to purchase
food items close to the expiration date.\143\
Figure 5: Summary of Voluntary Guidelines and Informal Recommendations
by Food Trade Organizations on Open Date Labeling of Food Products
------------------------------------------------------------------------
-------------------------------------------------------------------------
Association of Food Industries: Informally recommend open dating of
olive oil.
Food Marketing Institute: Support a voluntary ``sell by'' date
accompanied by ``best if used by'' information.
International Dairy-Deli-Bakery Association: Informally recommends
manufacturers' guidelines (sell by/pull by) for foods that are put on
display in the supermarket, such as deli meats.
National Food Processors Association: For refrigerated and frozen
foods, indicates that manufacturers are in the most knowledgeable
position to establish the shelf life and consequently the specific date
labeling information that is most useful to the consumer. To harmonize
date labeling among food products, supports a month/day/year (MMDDYY)
format, either alphanumeric or numeric.
Specialty Coffee Association of America: Encourages members to put a
``born-on'' date on their products.
------------------------------------------------------------------------
Source: Eastern Research Grp., Inc., Current State of Food Product Open
Dates in the U.S. 1-13 (2003).
Chapter 3: Shortcomings of the Current System
Inconsistent and Unreliable Wording and Methods of Determinationion
The lack of binding Federal standards, and the resultant state and
local regulatory variability in date labeling rules, has led to a
proliferation of diverse and inconsistent date labeling practices in
the food industry. Open dates can come in a dizzying variety of forms,
none of which are strictly defined or regulated at the Federal level.
This haphazard system is not serving its purpose well.
Though it is impossible to provide actual definitions as meanings
can vary by state and phrases are not legally defined, the following
terms can loosely be interpreted as: (1) the ``production'' or ``pack''
date, which provides the date on which the food product was
manufactured or placed in its final packaging; (2) the ``sell by''
date, which provides information to retailers for stock control leaving
a reasonable amount of shelf life for the consumer after purchase; (3)
the ``best if used by'' date, which typically provides an estimate of a
date after which food will no longer be at its highest quality; (4) the
``use by'' date, which also typically is a manufacturer's indication of
the ``last date recommended for the use of the product while at peak
quality''; (5) the ``freeze by'' date, which is a reminder that quality
can be maintained much longer by freezing product; and (6) even the
``enjoy by'' date used by some manufacturers, and not clearly defined
in a way that is useful to consumers. It is important to note that the
meaning of these terms may vary from product to product and among
manufacturers of the same products because there is no industry
consensus surrounding which date label prefix should be applied to
different categories of food products.\144\
In addition to discretion over which label to use, industry actors
vary in their decisions about when to include a label on a product at
all. In a 2003 report prepared for the FDA, six manufacturers were
interviewed and asked to describe their processes for deciding when to
include an open date on one of their products, and their answers varied
widely.\145\
Most manufacturers agreed on certain important factors, including
the perishability of a product,\146\ but beyond that there was a wide
range of different responses, illustrating the broad level of
discretion left to manufacturers. For instance, some made their
decision based on space constraints on packaging while others
considered the decision as part of their marketing strategy.\147\
Industry guidelines, likewise, do not typically influence
manufacturers' decisions to include date labels and do not usually
identify which shelf stable foods should bear open dates.\148\
Manufacturers are left to decide for themselves not only when to
use a date label and what label term to use, but, importantly, how this
date will be determined.\149\ According Chapter 3: Shortcomings of the
Current System to the 2003 report prepared for FDA, a key motivating
force behind a manufacturer's decision to open date is the protection
of the consumer's experience of a product,\150\ in order to safeguard
that product's reputation.\151\
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Manufacturers and retailers accomplish this goal by focusing on the
product's shelf-life-typically conceptualized as ``the end of consumer
quality determined by the percentage of consumers that are displeased
by the product.'' \152\
Manufacturers and retailers are ultimately free to define shelf-
life according to their own market standards, ``with some accepting a
predetermined degree of change'' in product quality over time, ``and
others finding that no change is acceptable.'' \153\ Those
manufacturers and retailers opposed to any quality change in their
product generally choose to set their label dates earlier to ensure
that food is consumed only at its peak freshness, in order to protect
their brand integrity. Some manufacturers use lab tests to determine
the shelf life, others use literature values, and yet others use
product turnover rates or consumer complaint frequency.\154\
Ultimately, there is a high degree of variability, arbitrariness, and
imprecision in the date labeling process. As explained by one food
scientist and former food industry official describing one process that
uses grades assigned by professional tasters:
If the product was designed, let's say, to be a 7 when it was
fresh, you may choose that at 6.2, it's gotten to the point
where [you] don't want it to be on the market anymore . . . .
If it's 6.0, would most people still find it reasonably good?
Absolutely. . . . But companies want people to taste their
products as best they can at the optimum, because that's how
they maintain their business and their market shares.\155\
Thus, while open code dating appears on the surface to be an objective
exercise, consumer preferences and brand protection color the way in
which most of these dates are determined. In most cases, consumers have
no way of knowing how a ``sell by'' or ``use by'' date has been defined
or calculated, and to reiterate from above, the method of calculation
may vary widely ``by product type, manufacturer, and geography.'' \156\
It is reasonable that manufacturers want to protect their brands'
reputations. Still, here may be a place for more objective and
empirically-grounded methods for determining quality-based dates. One
such method that could be applied for some products is the use of
empirical shelf-life testing.\157\ A product's ``shelf-life'' can be
determined by testing and monitoring the product over its actual shelf-
life, which can take several years for shelf-stable products.\158\
Alternatively, manufacturers can employ accelerated shelf-life testing,
a practice involving the study and storage of food products under test
abuse conditions.\159\ However, at present, the use of shelf-life
testing is almost entirely optional.\160\ For those manufacturers that
lack the requisite time, money, expertise, or initiative to conduct
such testing, open dates end up being ``no more than very good guesses
or industry practice.'' \161\ The 2003 report prepared for the FDA
noted that creating a mandatory national open dating system, which
would standardize date labeling practices across the nation, could also
present an opportunity to require manufacturers to implement more
rigorous shelf-life testing.\162\
The variability of how dates are chosen and expressed is also
reflected in FDA's Food Label and Package Survey from 2000-2001, which
found that just under 55 percent of food products sold had any kind of
date label.\163\ Out of that 55 percent, Figure 6 shows the breakdown
of the label types that were employed. It is possible that dating
practices have increased since this survey, particularly after Wal-Mart
began requiring its suppliers to utilize ``best if used by'' dates in
2004.\164\
Figure 6: Distribution of Label Date Types \165\
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
* ``Date stamped'' refers to products stamped with a date,
but without any accompanying words.
Even when given a more limited scope of date label terminology to
choose from, the issue of food waste persists. For example, in the
United Kingdom, manufacturers are bound under Directive 2000/13/EC of
the European Parliament and of the Council (EU Food Labeling Directive)
to include either a quality-based ``best before'' date or a safety-
based ``use by'' date.\166\ However, it remains up to the industry to
determine which of those two terms to use, leading to inconsistencies
in the labeling of similar products, as evidenced by this finding from
a United Kingdom industry report:
. . . 75 percent of yogurt lines were marked with a ``use
by'' date and 25 percent with a ``best before'' date. In
conversations with retail food technologists, it was explained
that some products like yogurts, fruit juices and hard cheeses
do not necessarily constitute food safety risks but simply
spoil and therefore may not need to have a ``use by'' date
applied at all.\167\
Further, industry actors are often more likely to include ``use by''
dates (defined as safety dates) on products that would merit a ``best
before'' date (defined as quality date), causing further unnecessary
waste because the United Kingdom bans the sale of food products after
the ``use by'' date.\168\ In 2011, in response to the persistently high
rates of food waste, the U.K. Department for Environment, Food and
Rural Affairs (DEFRA) issued ``Guidance on the application of date
labels to food'' to help industry comply with the E.U. Food Labeling
Directive using standardized methods.\169\ The DEFRA Guidance provides
a decision tree for industry actors that explains when to use which of
the two mandatory dates, in order to try to streamline the date
labeling used on similar products.\170\ The Guidance also suggests that
retailers should make ``display until'' and ``sell-by'' dates, which
were unregulated and, as in the United States, used primarily as stock
rotation tools, less visible to consumers in order to reduce
unnecessary food waste due to consumer confusion regarding those
particular dates.\171\
Back in the United States, the end result of the lack of
standardization of date labels is consumer confusion and inability to
make informed decisions based on the information contained in date
labels, which ultimately leads to food waste. Because consumers cannot
understand what factors led to the selection and setting of label
dates, often they mistakenly assume that these dates are tied to food
safety,\172\ whereas in reality their true function is to convey
information about freshness and quality grounded in the preferences of
consumers themselves and the particular brand protection practices of
manufacturers. This misunderstanding also creates the opportunity for
an unscrupulous manufacturer to maximize profits at the expense of
consumers' economic interests. The fact that consumers and stores throw
away products unnecessarily can lead to increased profits for
manufacturers if consumers are purchasing more products and doing so
more often. According to at least one supply chain expert, some
manufacturers may artificially shorten stated shelf lives for marketing
reasons.\173\ More empirical research on this topic would be helpful.
The current system provides few checks to prevent manufacturers from
engaging in such a practice.
Thus, while open code dating appears on the surface to be an
objective exercise, consumer preferences and brand protection
color the way in which most of these dates are determined. In
most cases, consumers have no way of knowing how a ``sell by''
or ``use by'' date has been defined or calculated, and to
reiterate from above, the method of calculation may vary widely
``by product type, manufacturer, and geography.''
Consumer Confusion and Misinterpretation of Link to Food Safety
The current food dating system leads to consumer confusion and
misinterpretation in two fundamental ways. On one hand, evidence
suggests that consumer overreliance on label dates results in food
being wasted because of safety concerns that are not founded on actual
risks. At the same time, such overreliance can also cause consumers to
ignore more relevant risk factors affecting food safety, including the
importance of time and temperature control, as discussed further below.
Label dates thus create a false (and potentially dangerous) sense of
security for consumers who uncritically consume foods before their
marked expiration date.\174\ Thus, neither the public's health nor
resource conservation are well-served by the current date labeling
system.
Mistaken Belief That Past-Date Food Is Unsafe to Consume
Although most date labels are intended as indicators of freshness
and quality,\175\ many consumers mistakenly believe that they are
indicators of safety.\176\ A 2007 survey of U.S. adults funded by
USDA's National Integrated Food Safety Initiative of the Cooperative
State Research, Education, and Extension Service (CREES) found that
many of the respondents could not identify the general meanings of
different open dates, with fewer than half (44 percent) correctly
describing the meaning of the ``sell by'' date and only 18 percent
correctly indicating understanding of the ``use by'' date.\177\ In
addition to this substantial confusion, 25 percent had the
misconception that ``sell by'' date identifies the last day on which a
product can be consumed,\178\ rather than an inventory-control date
that simply recommends how long a product should be displayed on the
shelf vis-a-vis newer products.\179\ A separate survey by the FMI found
that 91 percent of consumers reported that at least occasionally they
had discarded food past its ``sell by'' date out of concern for the
product's safety, with 25 percent reporting that they always did
so.\180\ Moreover, a report sponsored by the National Advisory
Committee on Microbiological Criteria for Foods (NACMCF) and several
Federal agencies \11\ highlighted that ``54% of consumers believed that
eating food past its sell by/use by date constituted a health risk.''
\182\ Other studies found that a majority of respondents believe either
that food is no longer safe to be sold183 or that it is no longer safe
to be consumed after its open label date.\184\ Individuals from all age
and income groups are confused about the current system of date
labels.\185\
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In fact, the current date labeling system does not address safety,
nor was that ever its main impetus. As referenced previously, the OTA's
landmark report on open code dating from 1979 concluded:
There is little or no benefit derived from open dating in
terms of improved microbiological safety of foods. For foods in
general, microbiological safety hazards are a result of
processing failures, contamination after processing, and abuses
in storage and handling. These factors are usually independent
of the age of the product and have little relationship to an
open date.\186\
USDA affirms that ``even if the date expires during home storage, a
product should be safe, wholesome and of good quality if handled
properly and kept at 40 F or below.'' \187\ Echoing this assertion,
the FDA's Center for Food Safety and Applied Nutrition (CFSAN) has
noted that most foods, when kept in optimal storage conditions, are
safe to eat and of acceptable quality for periods of time past the
label date.\188\
Other studies also show there is no direct correlation between food
safety and date labels. In the United Kingdom, representatives from
retail and manufacturing compiled a report with a wide-ranging review
of date labels, consumer safety, and food waste. The report, published
in 2011, found no direct evidence linking foodborne illness in the
United Kingdom to consumption of food past its expiration date.\189\
Food safety experts agree that absent time/temperature abuse, when food
is allowed to remain too long at temperatures favorable to the growth
of foodborne microorganisms, many food products will be safe past their
date labels, although there are exceptions for certain classes of
``ready-to-eat'' perishable foods and foods to be consumed by certain
susceptible populations,\190\ both of which are discussed below.
Quality-based date labels are not relevant food safety indicators
because a food will generally ``deteriorate in quality to the point
that it would not be palatable to eat before there [is] an increase in
the level of food safety risk.'' \191\ Quality-based label dates are
generally set far before this spoilage point, meaning that there is a
significant amount of time past the label date during which the food is
still safe to eat.
USDA affirms that ``even if the date expires during home
storage, a product should be safe, wholesome and of good
quality if handled properly and kept at 40 F or below.''
The incredible variation between state and local regulations
regarding date labeling and the sale of food after the label date
further supports the conclusion that the use of these dates does not
advance public health in a meaningful way. While some states, like
Massachusetts, regulate date labeling and sale after some date labels
aggressively, a significant number of states, including New York, leave
the field completely unregulated. Given that the same food products are
no more or less hazardous in different states, it appears that at least
some states are pursuing date labeling policies that lack robust
empirical support. If persuasive evidence comes to light showing that
there is a proven correlation between label dates and food safety, then
all jurisdictions should adopt similar regulations. Alternatively, and
more realistically, jurisdictions with more stringent date labeling
requirements should review whether their regulations are actually
designed to address food safety risks. Further research on the relative
rates of foodborne illnesses in states that have restrictions on sale
after date versus those that do not may be instructive on the level of
protection that those regulations actually provide.
Mistaken Belief that Pre-Date Food Is Always Safe To Consume
While the mistaken belief that past-date foods are unsafe leads
directly to food waste, overreliance on date labels may also have a
detrimental effect on consumer health and safety. When consumers put
undue faith in date labels, they may actually ignore more salient
determinants of food safety, putting themselves at risk. Specifically,
when consumers rely on a date label that emphasizes a product's
estimated lifespan without any accompanying information about the
storage temperature or conditions under which the food was or should be
kept, they are acting without critical information. A label date, if it
is even designed to communicate safety, could truly only convey
meaningful safety information if it were presented in conjunction with
the time/temperature history of the product, meaning how long and at
what temperatures the food was stored.\192\ Consumers often do not
understand the relationship of time and temperature to safety; many
people do not realize that the amount of time food spends in the danger
zone (40 to 120 Fahrenheit) is the main criterion they should use to
evaluate food safety, rather than total storage time.\193\
When food is left at unsafe temperatures for too long or is
otherwise compromised, an open date becomes essentially meaningless,
but consumers may trust the label date and use the product anyway.\194\
The 1979 OTA report specifically expressed this concern, stating that
date labels might disserve consumers by giving them a false sense of
security.\195\ A 2011 government report out of the United Kingdom also
recognized the possibility that the ``proliferation of `use by' dated
products increases risk for consumers by diluting key food safety
messages.'' \196\ This worry about false confidence is borne out in a
study reporting that more than \1/2\ of all American adults think the
``use by'' date is an indicator of microbiological safety.\197\
A Different Case: Listeria monocytogenes and Refrigerated Ready-to-Eat
Foods
There is one area of food safety concern that does implicate date
labeling as a potential regulatory solution: the risk of Listeria
monocytogenes in ready-to-eat-foods. According to FDA's Center for Food
Safety and Applied Nutrition, Listeria is ``a bacterium that occurs
widely in both agricultural . . . and food processing environments.''
\198\ If ingested by humans, the bacterium can cause listeriosis, a
potentially life-threatening infection.\199\ For most foodborne
pathogens, ``the duration of refrigerated storage is not a major factor
in foodborne illness.'' \200\ But in the case of food contaminated by
Listeria, the length of refrigerated storage time is a factor,\201\
since this organism can grow and multiply even while under
refrigeration.\202\ For this reason, the Federal Government identified
Listeria as a pathogen for which a safety-based ``use by'' date label
could be a useful preventive tool.\203\ However, because Listeria is
destroyed upon cooking, this risk is generally limited to ready-to-eat
foods that are not heated before consumption.\204\ Indeed, of the 14
large-scale foodborne listeriosis outbreaks reported to the Centers for
Disease Control and Prevention (CDC) between 1973 and 2000,\205\ almost
all were known or suspected to have involved refrigerated ready-to-eat
foods.\206\
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While Listeria in ready-to-eat-foods is a legitimate problem in the
food supply, this concern does not justify, nor is it addressed by, the
current date labeling system. Listeria concerns in ready-to-eat foods
could be more effectively addressed using targeted, well-tailored
interventions that might include a date that explicitly indicates when
the food is safe to consume, but would also have other information
beyond just the date. Such interventions could integrate important food
safety considerations at all stages of the supply chain, like the
prevention of time/temperature abuse,\207\ which is not assured by the
imposition of date labels alone. Federally-regulated open dating may be
appropriate for discrete categories of foods that pose a unique public
health risk, such as ready-to-eat products. But the use of specialized
regulations applicable only to such high-risk foods would better
protect consumers if they allowed for consumers to distinguish between
truly pertinent safety labels and generic, quality-based labels.
Indeed, recognizing the dangers inherent in ready-to-eat foods, FDA has
already promulgated regulatory guidance focusing on this category in
the FDA Food Code.\208\ The Food Code takes a holistic approach to the
processing and handling of ready-to-eat foods along the supply chain,
and provides specific time/temperature guidelines for the holding and
consumption of ready-to-eat foods at the retail level.\209\ Date
labeling requirements constitute one element of this integrated
approach \210\ and complement the more important goals of minimizing
Listeria contamination and time/temperature abuse.\211\
It is even possible to imagine finer-grained distinctions being
made within the category of ready-to-eat foods, allowing for better-
tailored and effective date labels. This is because certain categories
of ready-to-eat foods that have been found to support the growth of
Listeria carry a much higher risk than others. When CFSAN conducted a
quantitative assessment of the relative risk of 23 food categories with
a documented history of Listeria contamination, only two categories
were designated as being at ``very high risk'' of contamination: ``Deli
Meats'' and ``Frankfurters, Not Reheated.'' \212\ Categories with a
``very low risk'' included ``Hard Cheese,'' ``Ice Cream and Other
Frozen Dairy Products,'' and ``Processed Cheese.'' \213\ While foods
posing a very high risk necessitated ``immediate attention in relation
to the national goal for reducing the incidence of foodborne illness,''
very low risk foods were deemed ``highly unlikely to be a significant
source of foodborne listeriosis'' absent ``a gross error in their
manufacture.'' \214\ Thus, even according to FDA's own research,
Listeria-related food safety risks do not extend to every product type
within the ready-to-eat category.
Finally, but no less importantly, it should be noted that serious
illness from Listeria occurs almost exclusively in susceptible
populations like the elderly, those with compromised immune systems,
and babies in utero.\215\ It may therefore make more sense to target
those population specifically. For example, Connecticut's food safety
regulations allow food service establishments to serve raw or
undercooked items, but makes explicit that such exemption does not
apply in the case of ``food service establishments serving highly
susceptible populations such as immuno-compromised individuals or older
adults in hospitals, nursing homes, or similar health care facili-
ties . . . and preschool age children in a facility that provides
custodial care.'' \216\ Labels could also carry population-specific
messaging. Education is important as well, such as when government
agencies advise pregnant women to avoid deli meats and unpasteurized
cheeses because of the Listeria risk.\217\
As laid out in this section, it is possible to address product-
specific food safety concerns (e.g., for ready-to-eat foods) by using
clear, targeted interventions, including standardized, effective date
labeling,\218\ without creating unnecessary and unwanted collateral
effects across the entire food system.\219\ For most foods, including
many ready-to-eat foods, the current date labeling framework does not
advance public health in any significant way. For the reasons presented
above, food safety considerations should not constitute a primary
justification for maintaining present date labeling practices. Instead,
specific practices should be tailored to ready-to-eat-foods to help
consumers make better food safety choices with regard to those high-
risk foods.
Consumer Food Waste
Consumer confusion surrounding the meaning of date labels also
contributes to the high rate of waste of edible food. Food loss has
been defined as the ``edible amount of food available for human
consumption but [] not consumed.'' \220\ Food waste is a subset of food
loss, representing the amount of edible food that goes unconsumed due
to human action or inaction.\221\ By conservative estimates, U.S. food
losses amount to 160 billion pounds of food annually.\222\ This waste
has important economic, environmental, and ethical implications.
To start, it is estimated that per capita food loss is $390 per
year, putting the total food loss for a family of four at $1,560
annually.\223\ One expert in consumer food waste thought that figure
was too low because it did not capture the estimated ten percent of
consumer food lost to the garbage disposal.\224\ With that additional
portion factored in, food losses could cost the average American family
$2,275 annually.\225\
On the environmental front, studies show that more than 25 percent
of all the freshwater used in the United States is squandered on the
production of wasted food.\226\ The EPA reports that over 34 million
metric tons of food scraps were generated in 2010,\227\ almost all of
which went into the waste stream, making food the greatest source of
waste headed to landfills in the United States at 21 percent of all
landfill input.\228\ The most alarming statistic is that food loss in
the United States has been on the rise for the past several decades,
with per capita food loss increasing by 50 percent since 1974.\229\
Recent studies conducted in the United Kingdom have explored the
connection between food waste and food date labeling. A report
published in 2011 by WRAP, a not-for-profit organization that works to
reduce food waste in the United Kingdom and other European countries,
reported that confusion over date labeling accounts for an estimated 20
percent of avoidable household food waste.\230\ Comprehensive research
on the connection between date labels and food waste has not yet been
conducted in the United States.
As the previous section makes clear, the majority of American
consumers do not understand date labels, with a significant chunk of
them mistakenly believing that eating food past its ``sell by'' or
``use by'' date poses a health risk.\231\ Consumers' discarding of food
on or before the ``sell by'' date offers further evidence of food waste
that is linked to date labeling because that date does not in fact
indicate the food is spoiled. In a 1987 study, 17 percent of weekly
household waste was reported discarded because it was ``past a pull
date, an expiration date, or, in some cases, a series of production
code numbers misinterpreted as a date,'' or ``because the consumer
believed that the food was too old by some other time standard.'' \232\
Thus, while more research would help to further define the scale of the
problem, it is already quite clear that date labels play a central role
in generating food waste among U.S. consumers.
Economic Losses and Inefficiencies for Manufacturers, Distributors, and
Retailers
Because of the consumer misperceptions that surround the meaning of
date labels, the practice of open dating usually results in a higher
rate of unsaleable--and hence often discarded--food for retail
stores.\233\ In the United States, an industry initiative estimated
about $900 million worth of inventory was removed from the supply chain
in 2001 due to date code expiration and identified the lack of
standardization around date coding as one of the five factors driving
that loss.\234\ This food represents a direct economic loss for
retailers, and ultimately could be a cost born by consumers in the
price of goods. Aside from the costs of wasted food, inconsistent date
labeling regulations that are not benefiting public health can also
make food businesses less efficient. Retail experts have reported that
it can be difficult for large-scale food corporations to comply with
divergent state regulations.\235\ Indeed, one of the driving
motivations for the NCWM when it created the Uniform Open Dating
Regulation was the fear that variation between state regulations on
date labels would hamper the ``orderly flow of commerce'' among
states.\236\ With the current regulations, companies often must use
separate packaging lines for products entering different jurisdictions
in order to comply with these divergent state laws. Further, food
packers and manufacturers have an incentive to follow the strictest
state labeling regulations for all of their products, even for products
sold in states with no regulations. Because no states prohibit date
labels, this method can be less costly for companies. However, this
means that date labels could be having the same confusing impacts even
in states without regulations because products in all states wind up
with labels that are not protecting consumers.
Challenges for Food Recovery Initiatives and Anti-Hunger Organizations
The food waste that is generated by date labeling practices can and
often is offset by back-end efforts to reclaim, rescue, or repurpose
past-date foods in order to prevent them from being discarded. One
approach to mitigating food waste is to divert expired foods to anti-
hunger organizations that can process and distribute these products to
food-insecure individuals and families. Safe, wholesome past-date
products constitute a significant portion of the food relief that is
distributed by food banks and soup kitchens.\237\ As well, there are a
number of new organizations that specialize in linking anti-hunger
initiatives with past-date or otherwise unsaleable foods.\238\
Another way that retailers can mitigate food waste is by selling
past-date products at lower prices through a designated ``discount''
section of the store \239\ or, alternatively, to external businesses
including freestanding expired food stores \240\ or expired food
auctions.\241\ These retail avenues give savvy, price-conscious
consumers the option of voluntarily foregoing the quality standards
indicated by a date label in exchange for often significant cost
savings.
Despite these promising initiatives, many of the same distorting
and disorienting effects caused by date labels in the traditional
retail context can also be present in the past-date retail market.
Consumer confusion surrounding the meaning of date labels and their
relationship to food safety severely limits the market for past-date
products. Experts in food recovery \242\ and food waste \243\ report
that there is also widespread confusion amongst anti-hunger program
administrators over the meaning of various date labels. Food safety
officers working with anti-hunger organizations must consequently spend
considerable time and effort educating workers about the date labeling
system, and those workers must in turn educate clients and end-users
when they express concerns or uncertainty about the products they are
receiving.\244\
Laws in 20 states plus the District of Columbia also explicitly
regulate the sale (and sometimes even donation) of foods beyond their
label date (see Figure 3). Donors may also be concerned about their
liability associated with food-safety, even though they are protected
by state and Federal ``Good Samaritan'' laws that exist to protect from
liability the corporations and individuals who donate food to nonprofit
organizations.\245\ Finally, state and local food inspectors have been
known to frustrate food recovery efforts on the basis of questionable--
or, in some cases, clearly mistaken--interpretations of how local
health codes and food safety laws view past-date foods.\246\ For
example, an inspector may assume that a past-date product cannot be
safe or wholesome, even though date labels alone are not reliable
indicators of safety or wholesomeness. All of these complications
stemming from date labeling practices make it more difficult to use
food recovery methods to mitigate the food waste that is caused by
those practices.
Chapter 4: Recommendations
A new system for food date labeling in the United States is needed.
This system should have uniform language that clearly communicates to
consumers the meaning of dates as well as other food safety and
handling information. The system should be the same throughout the
United States for foods within the same category of products, and to
the extent reasonable, across all classes of food products.
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The recommendations proposed here respond directly to the myriad
problems linked to the current date labeling legal framework. They are
broken into two sections. The first section proposes changes to date
labeling practices in order to standardize the labels, reduce consumer
confusion, improve consumer food safety, and decrease food waste. The
second section describes the activities that specific actors, such as
industry players, governmental bodies, and consumers, should take to
spur date label reform and thus improve food safety and decrease food
waste.
Standardize and Clarify the Food Date Labeling System Across the United
States
1. Make ``Sell By'' Dates Invisible to the Consumer
``Sell by'' dates are designed for stock control by retailers, as a
business-to-business communication between manufacturers and retailers.
As described above, they offer no useful guidance to consumers once
they have brought foods home, and are often misinterpreted by consumers
as safety dates. Guidance on when to eat the product may be helpful to
consumers, but guidance on when to sell it is not. Affixing these dates
in a closed date format, per prior industry practice,\247\ will allow
for efficient retail stock rotation without unnecessarily confusing
consumers. Those same products could then display dates that do provide
useful guidance to the consumer, such as those described in the next
recommendation.
The British approach is illustrative here. As described above, food
products in the United Kingdom are required to include ``use by'' or
``best before'' date labels under the E.U. Food Labeling
Directive.\248\ But despite the Directive's requirements to use only
two qualifying prefixes before date labels, U.K. law still allowed food
companies the discretion to mark food products with ``display until''
or ``sell by'' dates in order to facilitate stock control.\249\
Research indicated that consumers were confused when faced with ``sell
by'' or ``display until'' dates, and 29 percent of consumers could not
correctly identify their meaning.\250\ To solve this confusion, the
DEFRA Guidance mentioned above recommended that retailers make ``sell
by'' and ``display until'' dates less visible to the consumer.\251\
While the change is too recent to determine its impact, a number of
experts in the U.S. retail sector have suggested a similar change.\252\
2. Establish A Reliable, Coherent, and Uniform Consumer-Facing Dating
System
There is little to no benefit from states regulating food product
dating differently from one another, or from companies independently
determining the language that will be used on date labels, if this
discretion is not in fact leading to any real health or safety
benefits. In fact, a joint industry task force examining this issue in
2007 concluded that ``industry and consumers would benefit from a more
common approach to how [open date] information is communicated and to
how the supply chain uses this information to manage inventory.'' \253\
The work of various actors, including industry members,
policymakers, food safety experts, consumer behavior experts, and
consumer advocates, is needed to establish the most effective system of
consumer-facing dates. A new system should include the following
components:
Establish standard, clear language for both quality-based
and safety-based date labels. Language used on food products
should more clearly and accurately communicate a date's
meaning. Consumer research should be used to determine the
exact wording that best communicates these meanings, but the
language should be standardized, unambiguous, and should
clearly delineate between safety-based and quality-based dates.
For example, for foods where safety may play a role in the
date, ``safe if used by'' more clearly communicates the safety
aspect as compared to ``use by.'' In addition, more
descriptive, explicit statements should be used. For example,
instead of short phrases like ``best before'' for quality-based
labels, a phrase such as ``Peak quality [or freshness]
guaranteed before MMDDYY'' would better convey relevant
information.\254\ If space constraints on packages become
problematic, standardized symbols or visual cues may also be of
use to communicate these concepts.
One additional option would be for government to require, or
industry to voluntarily adopt, boilerplate disclaimers on any
quality-based date labels. For example, manufacturers could
include a statement that ``This date is an indicator of
quality. Product safety has not been tested or linked with this
date,'' or a statement that ``Any dates displayed are not
safety dates. They have not been evaluated by FDA.'' While this
may require more space on packages, similar disclaimers are
already employed by FDA in other regulatory contexts.\255\
Include ``freeze by'' dates and freezing information where
applicable. Including ``freeze by'' dates on food products,
especially perishable products, could reduce the amount of food
wasted by consumers. According to USDA FSIS, ``once a
perishable product is frozen, it doesn't matter if the date
expires because foods kept frozen continuously are safe
indefinitely.'' \256\ For consumers concerned about being
unable to use a food product before its expiration date, or
concerned that such a product may deteriorate in quality after
the expiration date, the presence of a complementary ``freeze
by'' label could serve as a reminder to freeze the product
instead of discarding it. The best expression for this may be
``use or freeze by.''
More generally, it is important to raise consumer awareness of
the benefits of freezing food and the abundance of different
food products that can be successfully frozen. In the United
Kingdom, food products that are ``suitable for home freezing''
are marked with a snowflake label.\257\ American food companies
or retailers could implement a similar symbol to communicate
this information to consumers and provide helpful guidance on
how to maintain the product's quality when freezing it.
Furthermore, education campaigns aiming to reduce food waste
should focus on reiterating the benefits of freezing as one
component of their message.
Remove or replace quality-based dates on nonperishable,
shelf-stable products. In order to reduce food waste, it may be
most effective to remove quality-based dates, such as ``best
before'' on non-perishable, shelf-stable foods.
Even if quality-based dates were removed, information on shelf
life after opening should still be communicated, such as ``Best
within XX days of opening.'' As an alternative, it may be
desirable to provide consumers with a ``pack date'' and a
general estimate of the product's shelf-life (for example,
``maximum quality XX months after pack date'') on certain
products to help consumers make informed and independent
quality-based judgments.
Where there is not a safety concern, such an approach would
encourage consumers to make judgments about freshness and
quality by actively investigating the food product at issue
instead of relying on an industry-provided label. This approach
would make it more likely that food is only disposed of when it
has actually degraded to a quality level that the individual
consumer finds to be personally unacceptable, and it would
circumvent the incentive that manufacturers and retailers have
to set date labels too conservatively. In addition, this
practice would place more weight on labels placed on products
that raise safety concerns, such as ready-to-eat-foods that
pose a heightened Listeria risk.
Ensure date labels are clearly and predictably located on
packages. Consumers should be able to easily locate date label
information on packages. One option would be the creation of a
``safe handling'' information box on food products, akin to the
``nutrition facts'' panel. This safe handling box could include
information about the pack date, recommended best quality date
or use by date, depending on the type of food, guidance for
freezing, and information about how best to store the product.
Employ more transparent methods for selecting dates.
Assuring that date labels reflect the true shelf-life of
products would give consumers who rely on date labels the
maximum amount of time to consume their purchases before the
date expires. Those who set label dates could be required where
practical, to engage in quantitative shelf-life testing to
determine a product's label date. There are currently no such
requirements at the Federal level, except in the case of infant
formula.\258\ An even more robust version of this requirement
would require the testing to be done by some kind of
independent body, external to the entity setting the date.
Alternatively, manufacturers and retailers could be required to
use shelf-life guidelines for specific foods that are pre-set
by the government or by authorized private entities.
3. Increase the Use of Safe Handling Instructions and ``Smart Labels''
As stated above, experts agree that safe handling is the most
important factor in keeping food safe. Therefore, including safe
handling instructions on packages or other clear, pertinent food safety
indicators can help ensure a better consumer experience.
The Federal Government has already started to explore the
possibility of creating a system of labels that independently convey
relevant food safety information; these labels would likely emphasize
the central importance of storage temperature and storage conditions in
improving food safety outcomes.\259\ For example, raw meat and poultry
packages must be labeled with ``Safe Handling Instructions'' that
remind consumers about the importance of storage temperature, cross-
contamination, thorough cooking, and safe holding.\260\
Recognizing the limitations of date labels without any additional
knowledge of a food product's temperature history, several experts have
proposed more sophisticated ``smart labels'' that use technology to
indicate the actual storage history of a product, such as the duration
at each temperature.\261\ One example of this is a ``Time-Temperature
Integrator'' (TTI),\262\ a small tag attached to a food product that
changes color as a function of time-temperature history.\263\ When
using a TTI, manufacturers could use a label statement like `` `Use by
MM-DD-YY unless tag turns grey.' '' \264\ A smart label would be more
expensive than a date label alone, but it could be an important tool
for conveying useful safety information to consumers while reducing
food waste. This technology would be particularly beneficial to use on
those foods that pose a high risk to consumer health, such as ready-to-
eat foods. In addition to the TTI, other models have been piloted or
are in development in the United States and internationally.\265\
Increased government funding and research support could help in the
development of truly cost-effective smart labels and thereby decrease
food safety concerns for those foods identified as being most risky.
Another potential way to convey a product's manufacturing or
storage information would be to use Quick Response Codes (``QR Codes'')
to convey any such relevant additional information. QR codes allow a
user to ``read'' a barcode with their smartphone and then be
transported to a website. This would allow the manufacturer to deliver
ample information without the restrictions of on-package space
constraints and would also provide the manufacturer with an additional
touch point to the consumer.
The Role of Industry, Government, and Consumers
Congress, Federal administrative agencies, state legislatures,
state administrative agencies, the food industry, the non-governmental
sector, and consumers all have a role to play in reducing food waste
and reforming the American date labeling regime and can start acting
now. Solutions targeted at each stakeholder group are included below.
1. We Encourage Food Industry Actors To Commit To
Converting to a closed-date system for sell by information.
Retailers, distributors, and manufacturers alike should convert
all ``sell by'' or ``display until'' dates to a closed-date
system. With a majority of consumers mistakenly believing
``sell by'' dates indicate the last day a food can be safely
consumed, converting this information to a coded format will
avert a significant amount of premature food disposal. This
change can and should happen immediately.
Establishing a more standardized, easily understandable
consumer-facing dating system. As time and care will be
necessary to establish the most effective system of consumer-
facing dates, we encourage businesses to jointly commit to
creating a more standardized, less confusing system of date
labeling that incorporates the guidelines outlined above.
Perfecting such a system will take the input of various
parties, and could be done by a multi-stakeholder task force or
working group including industry members, policymakers, food
safety experts, consumer behavior experts, and consumer
advocates.
Selling or donating near-expiration or expired products.
Retailers should create dedicated in-store discount shelves for
food near or just past its label date and, alternatively, sell
or donate past-date or soon to be past-date foods to businesses
and liquidators that specialize in selling past-date products.
The benefits of these practices are threefold: retailers get to
recover some revenue that would otherwise never materialize;
consumers save money on perfectly edible food, albeit with the
knowledge that their purchases may not be at peak quality; and
more food is kept out of the waste stream. Moreover, a variety
of interventions could be used to help food banks and food
recovery organizations utilize past-date foods more
efficiently. These changes include disseminating more accurate
information about the meaning of date labels, as well as
Federal and state Good Samaritan protections.
Educating consumers on the meaning of expiration dates and
on safe food handling. Point-of-sale displays, informational
pamphlets, and online resources are all ways that food
companies can help to educate consumers on how to handle food
properly and when it can safely be consumed. These materials
should distinguish between date labels that measure quality and
those that indicate safety to reduce mistaken reliance on
quality labels for judgments of food safety risk.\266\ Because
consumers are still wary about consuming food at or near its
label date, the viability of past-date food sales, as well as
the success of any new standardized date label regime, is
contingent upon increased consumer awareness and education.
2. We Encourage Policy Change To Be Undertaken by the Following Actors
Congress: The most straightforward way to create a uniform
date labeling regime would be for Congress to establish a
Federal law that creates a uniform date labeling framework
across all states and all food products. As discussed in the
History section, past Congressional efforts aimed to create a
mandatory Federal regime by empowering FDA and USDA to create
regulatory requirements. The creation of a similar legislative
mandate could be pursued today.
FDA, USDA, and other relevant Federal agencies: As described
above, under the Food Drug & Cosmetic Act, FDA has both the
authority and the responsibility to ensure product labels are
not misleading.\267\ Like FDA, USDA has existing authority to
protect consumers from misleading information on the products
under its purview. Given the confusion and misinterpretation
that persists, FDA and USDA already have sufficient statutory
power to regulate date labels; if they believe they need
additional authority to regulate date labels, they should
identify any specific gaps. They should then use such authority
to promulgate regulations that protect consumers from the
misleading information that results from the wide variety of
date labeling practices utilized by industry either voluntarily
or in response to diverse state regulations.\268\
In order to ensure consistency across products, FDA and USDA
should establish a coordinated approach. Congress has given
each agency equal power to regulate misbranded food, but in
order to improve consumer understanding of date labels, this
power should be used to create standardized date labeling
requirements that apply in the same manner to all food
products, regardless of which agency has jurisdiction. This
will help to ensure that consumers can be educated on the
meaning of such labels and thus increase food safety and reduce
food waste. Once such a new system of date labeling is
developed, it should be accompanied by a strong consumer
awareness campaign to educate the public on the meaning of the
new date labels. Other agencies involved in ensuring food
safety, such as the CDC, can assist in these educational
efforts as well.
In addition (or in the meantime), since most states adopt some
version of the FDA Food Code, FDA should strengthen its Food
Code guidance, incorporate the recommendations in this report,
and expand the guidance to cover all food products and increase
consistency across products, instead of limiting it to only
shellfish, refrigerated ready-to-eat-foods, and reduced-oxygen
packaged foods.
National Conference Weights and Measures/National Institute
of Standards and Technology: We encourage the NCWM and NIST to
revise the Model Uniform Open Dating Regulation published in
NIST Handbook 130 to disallow open dating of ``sell by''
information and create more specific guidance for open dates,
incorporating the suggestions in this report to ensure the best
outcomes for consumers. Creating a multi-stakeholder task force
to tackle the issue could help address differing points of
view. The NCWM standards exist as a model guide that could be
used as a starting point for crafting new Federal guidelines,
once they are updated according to these recommendations.
Significant benefits of the NCWM approach include: (1) limiting
the types of permissible date labels and (2) setting baseline
requirements for the calculation of label dates.\269\
States: In lieu of overarching Federal regulation, creating
more consistency across state laws would be another way to
improve date labeling rules in all states while creating more
nationwide uniformity. We encourage states to coordinate in
adopting standard regulations. If NIST Handbook 130 on Uniform
Open Dating Regulation is amended, states could follow that
guidance. If not, states should adopt laws that call for
companies to make the changes recommended in the previous
section. At a minimum, states and localities with particularly
strict date labeling regulations should consider repealing
those regulations that create barriers to uniformity if they do
not have health benefits. For example, 20 states restrict the
sale or distribution of past-date foods and thereby make food
recovery efforts much more difficult.
All levels of government: We encourage all levels of
government to conduct public education campaigns to educate
consumers on the meaning of date labels, proper food handling,
and ways to determine when food is safe to eat.
3. We Encourage Consumers and Consumer-Facing Agencies and
Organizations To Act Now By
Educating themselves and their constituents on the meaning
of date labels. As described above, a majority of Americans
mistakenly believe that date labels are indicators of safety
rather than indicators of quality.\270\ Learning what dates
actually mean will help consumers to make better food safety
decisions, and will also reduce premature disposal of products,
saving people money in the process. In particular, consumers
should educate themselves about ``sell by'' dates, which are
indicators of stock rotation and not of product quality or
safety.
Educating themselves and their constituents on safe food
handling and consumption, including proper refrigeration
temperatures. Many consumers are not aware that storage
temperature is the main factor impacting food safety, rather
than the amount of time that has passed since the product's
production.\271\ Understanding the time/temperature
relationship to food safety and the critical importance of
keeping refrigerators at temperatures below 40 Fahrenheit is
key to preserving food safely.\272\ People under 35 years of
age have been identified as a demographic that could
particularly benefit from more intensive food safety
education.273
Learning to tell when food can still be safely consumed.
There are a variety of resources to help consumers learn how to
assess the safety of food. These include the FMI's FoodKeeper
Guide, which lists generic shelf lives of common products,\274\
and resources that indicate visual red flags for microbial
contamination, such as USDA's Kitchen Companion Safe Food
Handbook.\275\ These types of tools can help consumers reduce
their reliance on date labels for food safety judgments and
make better food safety decisions.
We have a significant challenge ahead in order to make a dent in
the 40 percent of food that currently goes uneaten in the United
States. There is no reason to wait--improving upon the convoluted and
ineffective system of date labels is one of the more straightforward
ways we can address this issue, while providing a service to consumers
by improving both food safety outcomes and economic impacts.
Appendix A: Congressional Delegation of Food Labeling Authority to
Agencies
Food and Drug Administration
Food, Drug and Cosmetic Act. 21 U.S.C. 301 et seq. (2012)
Definition of misleading. 21 U.S.C. 321(n) (2012).
(n) If an article is alleged to be misbranded because the labeling
or advertising is misleading, then in determining whether the labeling
or advertising is misleading there shall be taken into account (among
other things) not only representations made or suggested by statement,
word, design, device, or any combination thereof, but also the extent
to which the labeling or advertising fails to reveal facts material in
the light of such representations or material with respect to
consequences which may result from the use of the article to which the
labeling or advertising relates under the conditions of use prescribed
in the labeling or advertising thereof or under such conditions of use
as are customary or usual.
Prohibited acts. 21 U.S.C. 331 (2012).
(b) The following acts and the causing thereof are prohibited . . .
The adulteration or misbranding of any food, drug, device, tobacco
product, or cosmetic in interstate commerce. Food ``shall be deemed to
be misbranded . . . if (1) its labeling is false or misleading in any
particular, or (2) in the case of a food to which section 350 of this
title applies, its advertising is false or misleading in a material
respect or its labeling is in violation of section 350(b)(2) of this
title.''
Definitions and standards for food. 21 U.S.C. 341 (2012).
Whenever in the judgment of the Secretary such action will promote
honesty and fair dealing in the interest of consumers, he shall
promulgate regulations fixing and establishing for any food, under its
common or usual name so far as practicable, a reasonable definition and
standard of identity, a reasonable standard of quality, or reasonable
standards of fill of container.
Misbranded food. 21 U.S.C. 343 (2012).
A food shall be deemed to be misbranded--(a) False or misleading
label. If (1) its labeling is false or misleading in any particular, or
(2) in the case of a food to which section 411 [21 USCS 350] applies,
its advertising is false or misleading in a material respect or its
labeling is in violation of section 411(b)(2) [21 USCS 350(b)(2)].
Infant Formula Act. 21 U.S.C. 350a (2012).
(a) Adulteration.
An infant formula, including an infant formula powder, shall
be deemed to be adulterated if--
(1) such infant formula does not provide nutrients as
required by subsection (i) of this section,
(2) such infant formula does not meet the quality
factor requirements prescribed by the Secretary under
subsection (b)(1) of this section, or
(3) the processing of such infant formula is not in
compliance with the good manufacturing practices and
the quality control procedures prescribed by the
Secretary under subsection (b)(2) of this section.
(b) Requirements for Quality Factors, Good Manufacturing Practices,
and Retention of Records.
(1) The Secretary shall by regulation establish requirements
for quality factors for infant formulas to the extent possible
consistent with current scientific knowledge, including quality
factor requirements for the nutrients required by subsection
(i) of this section.
Labeling requirements, directions for use. 21 CFR 107.20 (2013).
(c) A ``Use by __'' date, the blank to be filled in with the month
and year selected by the manufacturer, packer, or distributor of the
infant formula 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).
U.S. Department of Agriculture
Poultry Products Inspection Act 21 U.S.C. 451 et seq. (2012)
Definition of misleading. 21 U.S.C. 453(h) (2012).
(h) The term ``misbranded'' shall apply to any poultry product
under one or more of the following circumstances:
(1) if its labeling is false or misleading in any particular.
Use of trade names; false or misleading marking or labeling; misleading
form or size of container. 21 U.S.C. 457 (2012).
(c) No article subject to this chapter shall be sold or offered for
sale by any person in commerce, under any name or other marking or
labeling which is false or misleading, or in any container of a
misleading form or size, but established trade names and other marking
and labeling and containers which are not false or misleading and which
are approved by the Secretary are permitted.
False or misleading labeling or containers. 9 CFR 381.129 (2013).
(c) A calendar date may be shown on labeling when declared in
accordance with the provisions of this paragraph:
(1) The calendar date shall express the month of the year and
the day of the month for all products and also the year in the
case of products hermetically sealed in metal or glass
containers, dried or frozen products, or any other products
that the Administrator finds should be labeled with the year
because the distribution and marketing practices with respect
to such products may cause a label without a year
identification to be misleading.
(2) Immediately adjacent to the calendar date shall be a
phrase explaining the meaning of such date in terms of
``packing'' date, ``sell by'' date, or ``use before'' date,
with or without a further qualifying phrase, e.g., ``For
Maximum Freshness'' or ``For Best Quality'', and such phrases
shall be approved by the Administrator as prescribed in
381.132.
Date of packing and date of processing; contents of cans. 9 CFR
381.126 (2013).
(a) Either the immediate container or the shipping container of all
poultry food products shall be plainly and permanently marked by code
or otherwise with the date of packing. If calendar dating is used, it
must be accompanied by an explanatory statement, as provided in
381.129(c)(2).
(b) The immediate container for dressed poultry shall be marked
with a lot number which shall be the number of the day of the year on
which the poultry was slaughtered or a coded number.
(c) All canned products shall be plainly and permanently marked, by
code or otherwise, on the containers, with the identity of the contents
and date of canning, except that canned products packed in glass
containers are not required to be marked with the date of canning if
such information appears on the shipping container. If calendar dating
is used, it must be accompanied by an explanatory statement, as
provided in 381.129(c)(2).
(d) If any marking is by code, the inspector in charge shall be
informed as to its meaning.
Federal Meat Inspection Act. 21 U.S.C. 601 et seq. (2012)
Labeling, marking, and container requirements. 21 U.S.C. 607 (2012).
(e) If the Secretary has reason to believe that any marking or
labeling or the size or form of any container in use or proposed for
use with respect to any article subject to this subchapter is false or
misleading in any particular, he may direct that such use be withheld
unless the marking, labeling, or container is modified in such manner
as he may prescribe so that it will not be false or misleading.
False or misleading labeling or practices generally; specific
prohibitions and requirements for labels and containers. 9 CFR 317.8
(2013).
(32) A calendar date may be shown on labeling when declared in
accordance with the provisions of this subparagraph:
(i) The calendar date shall express the month of the year and
the day of the month for all products and also the year in the
case of products hermetically sealed in metal or glass
containers, dried or frozen products, or any other products
that the Administrator finds should be labeled with the year
because the distribution and marketing practices with respect
to such products may cause a label without a year
identification to be misleading.
(ii) Immediately adjacent to the calendar date shall be a
phrase explaining the meaning of such date, in terms of
``packing'' date, ``sell by'' date, or ``use before'' date,
with or without a further qualifying phrase, e.g., ``For
Maximum Freshness'' or ``For Best Quality'', and such phrases
shall be approved by the Administrator as prescribed in
317.4.
False or misleading labeling or practices generally; specific
prohibitions and requirements for labels and containers. 9 CFR 317.8
(2013).
(a) No product or any of its wrappers, packaging, or other
containers shall bear any false or misleading marking, label, or other
labeling and no statement, word, picture, design, or device which
conveys any false impression or gives any false indication of origin or
quality or is otherwise false or misleading shall appear in any marking
or other labeling. No product shall be wholly or partly enclosed in any
wrapper, packaging, or other container that is so made, formed, or
filled as to be misleading.
USDA Labeling Approval (Meat and Poultry). 9 CFR 317.4 (2013).
(a) No final labeling shall be used on any product unless the
sketch labeling of such final labeling has been submitted for approval
to the Food Labeling Division, Regulatory Programs, Food Safety and
Inspection Service, and approved by such division, accompanied by FSIS
form, Application for Approval of Labels, Marking, and Devices, except
for generically approved labeling authorized for use in 317.5(b). The
management of the official establishment or establishment certified
under a foreign inspection system, in accordance with part 327 of this
subchapter, must maintain a copy of all labeling used, along with the
product formulation and processing procedure, in accordance with part
320 of this subchapter. Such records shall be made available to any
duly authorized representative of the Secretary upon request.
(b) The Food Labeling Division shall permit submission for approval
of only sketch labeling, as defined in 317.4(d), for all products,
except as provided in 317.5(b)(2)-(9) and except for temporary use of
final labeling as prescribed in paragraph (f) of this section.
(c) All labeling required to be submitted for approval as set forth
in 317.4(a) shall be submitted in duplicate to the Food Labeling
Division, Regulatory Programs, Food Safety and Inspection Service, U.S.
Department of Agriculture, Washington, D.C. 20250. A parent company for
a corporation may submit only one labeling application (in duplicate
form) for a product produced in other establishments that are owned by
the corporation.
(d) ``Sketch'' labeling is a printer's proof or equivalent which
clearly shows all labeling features, size, location, and indication of
final color, as specified in 317.2. FSIS will accept sketches that
are hand drawn, computer generated or other reasonable facsimiles that
clearly reflect and project the final version of the labeling.
Indication of final color may be met by: submission of a color sketch,
submission of a sketch which indicates by descriptive language the
final colors, or submission with the sketch of previously approved
final labeling that indicates the final colors.
(e) Inserts, tags, liners, pasters, and like devices containing
printed or graphic matter and for use on, or to be placed within,
containers and coverings of product shall be submitted for approval in
the same manner as provided for labeling in 317.4(a), except that
such devices which contain no reference to product and bear no
misleading feature shall be used without submission for approval as
prescribed in 317.5(b)(7).
(f)(1) Consistent with the requirements of this section, temporary
approval for the use of a final label or other final labeling that may
otherwise be deemed deficient in some particular may be granted by the
Food Labeling Division. Temporary approvals may be granted for a period
not to exceed 180 calendar days, under the following conditions:
(i) The proposed labeling would not misrepresent the product;
(ii) The use of the labeling would not present any potential
health, safety, or dietary problems to the consumer;
(iii) Denial of the request would create undue economic
hardship; and
(iv) An unfair competitive advantage would not result from
the granting of the temporary approval.
(2) Extensions of temporary approvals may also be granted by the
Food Labeling Division provided that the applicant demonstrates that
new circumstances, meeting the above criteria, have developed since the
original temporary approval was granted.
(g) The inspector-in-charge shall approve meat carcass ink brands
and meat food product ink and burning brands, which comply with parts
312 and 316 of this subchapter.
Egg Products Inspection Act. 21 U.S.C. 1031 et seq. (2012)
False or misleading or use of nonapproved labeling or containers;
determination by Secretary; procedures applicable; appeal. 21 U.S.C.
1036 (2012).
(b) No labeling or container shall be used for egg products at
official plants if it is false or misleading or has not been approved
as required by the regulations of the Secretary. If the Secretary has
reason to believe that any labeling or the size or form of any
container in use or proposed for use with respect to egg products at
any official plant is false or misleading in any particular, he may
direct that such use be withheld unless the labeling or container is
modified in such manner as he may prescribe so that it will not be
false or misleading.
Perishable Agricultural Commodities Act. 7 U.S.C. 499a et seq. (2012)
Unfair conduct. 7 U.S.C. 499b (2012).
(4) For any commission merchant, dealer, or broker to make, for a
fraudulent purpose, any false or misleading statement in connection
with any transaction involving any perishable agricultural commodity
which is received in interstate or foreign commerce by such commission
merchant, or bought or sold, or contracted to be bought, sold, or
consigned, in such commerce by such dealer, or the purchase or sale of
which in such commerce is negotiated by such broker; or to fail or
refuse truly and correctly to account and make full payment promptly in
respect of any transaction in any such commodity to the person with
whom such transaction is had; or to fail, without reasonable cause, to
perform any specification or duty, express or implied, arising out of
any undertaking in connection with any such transaction; or to fail to
maintain the trust as required under section 499e(c) of this title.
Federal Trade Commission
Federal Trade Commission Act. 15 U.S.C. 45 et seq. (2012)
Declaration of unlawfulness; power to prohibit unfair practices;
inapplicability to foreign trade. 15 U.S.C. 45(a) (2012).
(1) Unfair methods of competition in or affecting commerce, and
unfair or deceptive acts or practices in or affecting commerce, are
hereby declared unlawful.
(2) The Commission is hereby empowered and directed to prevent
persons, partnerships, or corporations, except banks, savings and loan
institutions described in section 57a(f)(3) of this title, Federal
credit unions described in section 57a(f)(4) of this title, common
carriers subject to the Acts to regulate commerce, air carriers and
foreign air carriers subject to part A of subtitle VII of title 49, and
persons, partnerships, or corporations insofar as they are subject to
the Packers and Stockyards Act, 1921, as amended [7 U.S.C. 181 et
seq.], except as provided in section 406(b) of said Act [7 U.S.C. 227
(b)], from using unfair methods of competition in or affecting commerce
and unfair or deceptive acts or practices in or affecting commerce.
Fair Packaging and Labeling Act. 15 U.S.C. 1451 et seq. (2012)
Scope of additional regulations. 15 U.S.C. 1454 (2012).
(c) Whenever the promulgating authority determines that regulations
containing prohibitions or requirements other than those prescribed by
section 1453 of this title are necessary to prevent the deception of
consumers or to facilitate value comparisons as to any consumer
commodity, such authority shall promulgate with respect to that
commodity regulations effective . . .
Appendix B: State Requirements in Brief; Supporting Charts for Figures 2 and 3
Supporting Chart for Figure 2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Date Labels Foods for Which Date Is Date Labels Foods for Which Date Is
State No Requirement Required Required State No Requirement Required Required
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama X Nevada X Milk; potentially hazardous
Alaska X Shellfish foods
Arizona X Eggs New Hampshire X Cream; pre-wrapped sandwiches
Arkansas X Shellfish New Jersey X Milk/dairy; shellfish
California X Milk/dairy; shellfish New Mexico X Milk/dairy
Colorado X Eggs New York X
Connecticut X Milk/dairy North Carolina X Shellfish
Delaware X Shellfish North Dakota X Shellfish
Florida X Shellfish; milk/dairy Ohio X Packaged perishable foods;
shellfish
Georgia X Eggs; milk; shellfish; Oklahoma X Eggs; shellfish
prepackaged sandwiches
Hawaii X Milk Oregon X Packaged perishable foods
Idaho X
Illinois X Pennsylvania X Milk/dairy; shellfish
Indiana X Eggs; shellfish Rhode Island X Packaged bakery products;
Iowa X Eggs shellfish
Kansas X Eggs South Carolina X Eggs; shellfish
Kentucky X Milk; shellfish South Dakota X
Louisiana X Eggs Tennessee X
Maine X Shellfish Texas X Shellfish
Maryland X Milk (Grade A) Utah X
Massachusetts X Packaged perishable or semi- Vermont X Shellfish
perishable foods
Michigan X Pre-packaged perishable foods; Virginia X Dairy; shellfish
milk/dairy
Minnesota X Eggs; perishable foods; Washington X Packaged perishable foods
shellfish
Mississippi X Shellfish Washington, D.C. X Potentially hazardous foods,
dairy, meat, poultry, fish,
bread products, eggs, cold
meats, packaged perishable
foods, shellfish etc.
Missouri X West Virginia X Eggs
Montana X Milk/Dairy Wisconsin X Eggs; shellfish
Nebraska X Wyoming X Shellfish
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Supporting Chart for Figure 3
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Past-Date Sales Foods For Which Sale After Date Past-Date Sales Foods For Which Sale After Date
State No Regulation Regulated Is Restricted State No Regulation Regulated Is Restricted
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama X Meat, Class A foods (baby food, Nevada X Potentially hazardous foods
Alaska X infant formula, potentially
hazardous foods)
Arizona X New Hampshire X Pre-wrapped sandwiches
Arkansas X New Jersey X Milk
California X New Mexico X Milk/dairy
Colorado X Eggs New York X
Connecticut X North Carolina X
Delaware X North Dakota X
Florida X Shellfish and milk/dairy Ohio X
Georgia X Eggs, infant formula, Oklahoma X
shellfish, milk, potentially
hazardous foods, pre-packaged
sandwiches
Hawaii X Oregon X Packaged perishable foods
Idaho X
Illinois X Eggs Pennsylvania X Milk
Indiana X Rhode Island X Packaged bakery products
Iowa X
Kansas X South Carolina X
Kentucky X Milk/milk products South Dakota X
Louisiana X Tennessee X
Maine X Texas X
Maryland X Milk Utah X
Massachusetts X All food products (special Vermont X
focus on perishable and semi-
perishable foods)
Michigan X Pre-packaged perishable foods, Virginia X Dairy
meat, milk/dairy
Minnesota X Washington X Perishable packaged foods
Mississippi X Washington, D.C. X Potentially hazardous foods,
dairy, meat, poultry, fish,
bread products, eggs, cold
meats, packaged perishable
foods, etc.
Missouri X West Virginia X
Montana X Milk Wisconsin X Eggs
Nebraska X Wyoming X
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Appendix C: State Date Labeling Regulations in Full
Explanation of Qualifications for Applicable Regulations
This table includes information from all 50 states and the food products for which they regulate date labeling. Though this research is detailed, it
is not complete and not all food products are covered in the following pages. Some food products that are not included in this appendix are:
Reduced-oxygen packaged foods, which are regulated in many states.
Refrigerated, ready-to-eat, potentially hazardous foods
Infant formula, which already requires a ``use by'' date under Federal law \276\.
Salvageable merchandise, which could require further labeling information for foods sold after date
Very specific foods items that are unique to a few states (e.g., fresh-squeezed juices)
In addition, the legal language included herein is excerpted from the laws and thus may be incomplete in some places.
How to Use This Table
The table is divided into four columns:
(1) Column I (Applies to Food Type) specifies the type of food to which the state law applies. ``General'' refers to regulations that
are not associated with a specific food but apply to all food types; otherwise the specific food type will be stated.
(2) Column II (Purpose of Law) provides broad information about the relevant section of the law as applied to the particular food,
specifying whether or not date labeling is required, whether or not sale after the date is restricted (and any exemptions); and whether or
not alteration of date labels is permitted, when relevant. The term ``date labels'' is used generally in this column to include all terms,
such as ``sell by,'' ``use by,'' ``best before,'' etc., even if the law itself may be more specific
(3) Column III (Excerpted Language from the Law) contains excerpts of the exact language from the law or regulation.
(4) Column IV (Legal Citation) contains the citation to the relevant section of state law or regulation.
States with an ``*'' after them have adopted some version of the Open Dating regulation contained in the Uniform Packaging and Labeling
Regulation in NIST Handbook 130, according to the 2013 edition of the Handbook.277
States with no current regulations according to the qualifications assessed in this report contain ``--'' under each column.
** The information contained herein is current as of August 2013.
State Date Labeling Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
I. Applies To Food
Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama
--------------------------------------------------------------------------------------------------------------------------------------------------------
General Definition (date limit) (4)(a)(8) ``Date limit'' means all terms reasonably construed to Ala. Admin. Code r.
mean food is not intended to be used or sold after the date limit, or 420-3-22.01
that food quality is best before the date limit, and includes but is (2013).
not limited to the terms ``Sell By;'' ``Freeze By;'' ``Sell or Freeze
By;'' ``Not to be Sold After;'' ``Best if Used By;'' ``Best if
Purchased By,'' ``Expiration;'' or other similar designations.
Definition (open-date statement) (14) Open-date statement. Terms ``Sell By''; ``Freeze By''; ``Sell Ala. Code 20-1-20
or Freeze By''; ``Not to be Sold After''; ``Best if Used By''; (2013).
``Expiration''; or other terms as defined by rules or regulations; or
a date without additional words shall be considered an open-date
statement
Additional descriptive terms (open- (1) In addition to the terms listed in 20-1-20 (definitions) for Ala. Admin. Code r.
date statement) (14) open date statements, the following list of terms and other 80-1-22-.33
terms with similar import, shall also be included and considered as (2013).
open date statements:
(a) ``For full fresh flavor use by''
(b) ``For best quality purchase and use by date shown''
(c) ``Use/freeze by''
(d) ``Prepare or freeze by''
(e) ``For wholesome great taste, serve before date stamped
below''
(f) ``Best when purchase by date''
(g) ``Best if sold by''
(h) ``Best used by''
(i) ``Product expiration''
(j) ``Expiration date''
(k) ``Best by''
(l) ``Best before''
(m) ``Best when purchase by''
(n) ``Use before''
(o) ``Use by''
(p) ``Full freshness until date shown when stored unopened at 40
or below''
(q) ``Prepare by''
(r) ``Fresh until''
(s) ``Use or freeze by''
(t) ``Sell or use by''
(u) ``Freshness through''
Alteration of date labels not No person shall engage in any of the following activities within Ala. Code 20-1-27
permitted this state: . . . (2013).
(3)a. Obscure, remove, or otherwise render illegible any
information appearing on beverage labels, packages, or containers
related to production information, best before dates, or other
disclosure printed on, affixed to, or appearing on the labels,
packages, or containers.
b. This subdivision shall not apply to any alteration of a
beverage label, package, or container made by, or at the direction
of, either the owner of the trademark rights to the brand that
appears on the beverage label, package, or container or an
authorized manufacturer of the beverage.
c. This subdivision shall not apply to alcoholic beverages as
defined in Section 28-3-1.
d. This subdivision shall not apply to any entity, organization,
or association, including, but not limited to, a nonprofit or other
fund-raising organization that does not operate for a commercial
purpose.
(4)a. Store or transport any beverage product that bears a
labeling that has been obscured, removed, or rendered illegible as
described in subdivision (3).
b. This subdivision shall not apply to any alteration of a
beverage label, package, or container made by, or at the direction
of, either the owner of the trademark rights to the brand that
appears on the beverage label, package, or container or an authorized
manufacturer of the beverage.
Class A Foods Definition (class A foods) (4) Class A foods. Baby food, infant formula, and potentially Ala. Code 20-1-20
hazardous food. (2013).
Date labeling not required Date labeling not required for Class A food products in Alabama No relevant state
(with the exception of infant formula, which is federally law.
regulated).\1\
Sale after date not permitted No person shall engage in any of the following activities within Ala. Code 20-1-27
this state: . . . (2) Sell or offer for sale out-of-date Class A (2013).
foods which include baby food, infant formula, and potentially
hazardous food.
Alteration of date labels not (1) Packages of potentially hazardous foods bearing an open date Ala. Admin. Code r.
permitted (potentially hazardous statement are not to be repacked or relabeled or otherwise altered in 80-1-22-.36
foods) a manner that would change the open date statement originally placed (2013).
on the package. It is not permissible to reprocess products by
freezing, slicing, grinding, cubing, dicing, marinating, chopping, or
other similar methods unless the original open date statement is
maintained on the product label.
Meat Products Date labeling not required Date labeling not required for meat products in Alabama. No relevant state
law.
Sale after date not permitted (4) It is not permissible to freeze, sell, or offer for sale any Ala. Admin. Code r.
ready-to-eat meat product after the expiration of the open-date 80-1-22-.36
statement. It is not permissible to freeze, sell, or offer for sale a (2013).
product having the appearance of a ready-to-eat meat product (e.g.,
smoked sausages and smoked hams) after the expiration of the open-
date statement unless such product bears labeling to include safe
handling statements and proper cooking instructions.
Sale after date not permitted-- (3) Any rule in this chapter to the contrary not withstanding, Ala. Admin. Code r.
exemptions meat products bearing an open-date statement may be frozen and sold 80-1-22-.36
after the original expiration date only if all the following (2013).
stipulations are met:
(a) The product is a fresh or raw meat product that is frozen
prior to the expiration of the open-date statement.
(b) The product is labeled ``Frozen on ___,'' with the month,
day, and year the product is frozen in the blank.
(c) The original open-date statement is maintained on the
product package.
(d) If offered for sale at retail, the product is frozen and
labeled and sold only to a household consumer by the same
establishment that originally offered the product for retail sale.
(e) If offered for sale at wholesale (i.e., warehouse,
manufacturer, or distributor) the product is frozen and labeled and
sold only to the end user (i.e., consumer, restaurant, or hotel).
Provided however that consumer ready packages of fresh or raw meat
can be sold to retail establishments if all other provisions of
this rule are followed and each package is properly labeled.
(f) Products frozen before the expiration of the open-date
statement may not be thawed or further processed in any manner.
(g) All products properly frozen and labeled must also maintain
the safe handling labels as mandated through USDA.
(h) Products not properly labeled, re-labeled or exempted as set
forth in (a) through (h) of this rule shall be deemed date expired
and shall be included in the equivalent number utilized to
determine the applicable class of violation as determined by Rule
No. 80-1-22-.32.
(i) Nothing in this paragraph (3) of Rule 80-1-22-.36 shall
preclude a manufacturer or wholesaler or retailer from having more
stringent requirements for their products. Nothing in this
paragraph is intended to negate the agreement between sellers of
these products concerning guarantees or credit for expired
products.
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Alaska
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish Date labeling required (c) In addition to meeting the requirements of (a) and (b) of this Alaska Admin. Code
section, the operator of a food establishment shall obtain . . . (6) tit. 18, 31.200
molluscan shellfish that are . . . packaged and identified as (2013).
follows:
(A) fresh or frozen shucked molluscan shellfish packaged in a
single-use container with a label that identifies the name,
address, and permit number of the shucker-packer or repacker of the
molluscan shellfish, and either the sell-by date or the date
shucked;
Sale after date not restricted Not restricted for shellfish in Alaska. No relevant state
law.
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Arizona
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs Definition (Expiration date) 13. ``Expiration date'' means the words ``sell by'' or ``buy Ariz. Rev. Stat.
thru'' followed by a date, including the month and day, that is not Ann. 3-701
more than twenty-four days after the eggs were candled and that (2013).
includes the date the eggs were candled.
Date labeling required E. Cases, half cases, cartons or containers marked grade AA or Ariz. Rev. Stat.
grade A shall be marked with an expiration date. Ann. 3-719
F. The expiration date marked on a case, half case or container (2013).
holding fifteen dozen eggs or more shall be plainly and conspicuously
marked in bold-faced type not less than \3/8\" in height on one
outward end of the case or container.
G. The expiration date marked on a carton or container holding
less than fifteen dozen eggs shall be plainly and conspicuously
marked in bold-faced type not less than \1/8\" in height on one end
of the outward top face of each carton and on one outward end or the
outward top of each container.
Sale after date not restricted Not restricted for eggs in Arizona. No relevant state
law.
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Arkansas *
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Shellfish Date labeling required (A) Raw SHUCKED SHELLFISH shall be obtained in nonreturnable Ark. Code Ann.
packages which bear a legible label that identifies the: . . . (2) 007-04-8 3-202.17
The ``sell by'' or ``best used by'' date for packages with a capacity (2013).
of less than 1.89 L (\1/2\ gallon) or the date shucked for packages
with a capacity of 1.89 L (\1/2\ gallon) or more
Sale after date not restricted Not restricted for shellfish in Arkansas. No relevant state
law.
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California
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk/Dairy Date labeling required (a) At the time of sale to the consumer . . . there shall appear Cal. Food & Agric.
upon the package or container of such product the date established by Code 36004
the processor as the date upon which, in order to insure quality, (2013).
such product is normally removed from the shelf
Date labeling required (scope of law) (a) Except as otherwise provided in Food and Agricultural Code Cal. Code Regs.
Section 36004(c), the licensed milk products plant which bottles or tit. III, 627
packages the following products shall be responsible for affixing the (2013).
quality assurance date to all containers which are offered for sale
to the consumer by a retail store: market milk, market cream, skim or
non-fat milk, half and half, sour cream, sour cream dressing, low-fat
milk, flavored milk, flavored dairy drink, yogurt, concentrated milk,
concentrated skim milk, acidophilus milk, buttermilk and cultured
buttermilk, cottage cheese, creamed cottage cheese, homogenized
creamed cottage cheese spread, and partially creamed or low-fat
cottage cheese.
(b) The quality assurance date shall be readily identifiable by
the consumer. If a numerical sequence of months and days is used, it
may not be located on the container with other numbers such as
factory license number or lot numbers unless such other numbers are
clearly identified. If the quality assurance date is used with
unidentified code numbers, the date shall be at least the first three
letters of the month followed by the day of the month.
Sale after date not restricted Not restricted for milk in California. No relevant state
law.
Shellfish Date labeling required (a) Raw shucked shellfish shall be obtained in nonreturnable Cal. Health &
packages that bear a legible label that identifies . . . a ``sell Safety Code
by'' date or a ``best if used by'' date for packages with a capacity 114039 (2013).
of less than \1/2\ gallon, or the date shucked for packages with a
capacity of \1/2\ gallon or more.
Sale after date not restricted Not restricted for shellfish in California. No relevant state
law.
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Colorado
--------------------------------------------------------------------------------------------------------------------------------------------------------
General Alteration of date labels not A. When voluntary code date information appears on a retail food 6 Colo. Code Regs.
permitted establishment or manufacturers' label, it shall not be concealed or 1010-2:3-701
altered. (2013).
Eggs Date labeling required 3.2 PACK DATE REQUIREMENTS 8 Colo. Code Regs.
1202-10:3.0
(2013).
Every case, carton, or container of shell eggs at the time of
packing shall have legibly printed thereon, in numerals not less
than \1/8\" in height, the date the eggs are first packed, which
shall be referred to in these rules as the ``pack date.'' The pack
date shall be stated numerically by month and day (e.g., 1/15), or
by the numbered consecutive day of the year (e.g., 123, being the
123rd consecutive day of the year).
Further date labeling optional 3.3 SELL-BY DATE REQUIREMENTS 8 Colo. Code Regs.
(formatting specified if used) 1202-10:3.0
(2013).
Every case, carton, or container of shell eggs may, but need not
have legibly printed thereon, . . . a date by which the eggs must
be sold, which shall be referred to in these rules as the ``sell-by
date.'' The sell-by date shall be no more than 30 days after the
pack date. It shall be stated by month and day using the three-
letter abbreviation of the month followed by the numerical day of
the month (e.g., Jan. 15), and preceded by the term SELL BY or EXP.
Sale after date not permitted 4.1 No shell eggs may be offered for sale or sold to a consumer or 8 Colo. Code Regs.
restaurant more than 45 days after the pack date. 1202-10:4.0
(2013).
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Connecticut *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk/Dairy Date labeling required Each person, handler, firm or corporation shall clearly mark each Conn. Gen. Stat.
container of milk or milk product, cream, yogurt, cream cheese, Ann. 22-197b
cottage cheese, ricotta cheese, soft cheese, eggnog or sour cream (2013).
offered for retail sale with a last sale date. In accordance with the
provisions of chapter 54, the Milk Regulation Board shall adopt
regulations establishing standards and criteria for label type size,
color and wording that is consistent with national standards and said
board may incorporate by reference The Nutritional Education and
Labeling Act, 21 CFR 101.
(b) Products not manufactured, packaged and heat treated in a Conn. Agencies
manner that makes the product safe to store at room temperature shall Regs. 22-133-131
be conspicuously labeled with a last sale date. The last sale date (2013).
shall be shown in contrasting color with the background. The last
sale date shall be expressed as ``sell by'', ``last sale date'' or
``must be sold by''.
Alteration of date labels not (f) Conn. Agencies
permitted Regs. 22-133-123
(2013).
Sale after date not restricted Not restricted for milk in Connecticut. No relevant state
law.
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Delaware
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish Date labeling required (A) Raw shucked shellfish shall be obtained in nonreturnable 4000 Del. Admin.
packages which bear: . . . (2) The ``sell by'' date for packages with Code 3-202.17
a capacity of less than 1.87 L (\1/2\ gallon) or the date shucked for (2013).
packages with a capacity of 1.87 L (\1/2\ gallon) or more.
Sale after date not restricted Not restricted for shellfish in Delaware. No relevant state
law.
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Florida
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish Definition (terminal sale date) (65) Terminal sale date--the last day freshly packed shellfish Fla. Admin. Code
shall be offered for sale; that being no more than 14 calendar days Ann. r. 5L-1.002
subsequent to the date the product was shucked, or for oyster (2013).
shellstock harvested from the Gulf of Mexico, no more than 14 days
subsequent to the date shellstock was harvested.
Date labeling required (1) . . . Containers of fresh shellfish, with a capacity of less Fla. Admin. Code
than 64 ounces, shall further clearly and permanently bear the Ann. r. 5L-1.007
terminal sale date, by the numerical month, day, and last digit of (2013).
the year.
Sale after date not permitted (11) It shall be unlawful for any person, firm, corporation, Fla. Admin. Code
wholesale or retail dealer to sell or offer for sale any fresh Ann. r. 5L-1.007
shellfish after the terminal sale date has expired, or sell or offer (2013).
for sale any fresh, frozen, or previously frozen shellfish not in
compliance with any and all requirements of Chapter 5L-1, F.A.C.
Milk/Dairy Date labeling required (1)(a) All milk and milk products shall be legibly labeled with Fla. Admin. Code
their shelf-life date. The date or date code for frozen desserts and Ann. r. 5D-1.007
other manufactured milk products shall be approved by the department (2013).
and shall indicate the date of manufacture of the product or the last
day the product is to be offered for sale.
Sale after date not permitted (1)(e) No milk or milk products shall be offered for sale as a Fla. Admin. Code
grade A product after the shelf-life expiration date shown on the Ann r. 5D-1.007
container. All milk and milk products offered for sale after the (2013).
shelf-life expiration date will be deemed to be misbranded and
subject to be impounded and made unsalable or otherwise disposed of
by the department, under the provisions of Section 502.231, F.S.
(1)(f) This rule does not apply to containers of milk or milk
products which are not to be sold in the State of Florida.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Georgia
--------------------------------------------------------------------------------------------------------------------------------------------------------
General Definition (expiration date) (35) ``Expiration Date'' is synonymous with Pull Date, Best-By Ga. Comp. R. &
Date, Best Before Date, Use-By Date, and Sell-By Date; and means the Regs. 40-7-1-.02
last date on which the following FOOD products can be sold at retail (2013).
or wholesale:
(a) Prepackaged sandwiches; (b) Eggs, (c) Infant formula,(d)
Shucked oysters,(e) Milk, and (f) POTENTIALLY HAZARDOUS FOOD
Eggs Date labeling required All eggs that are sold, offered for sale or stored for sale at Ga. Comp. R. &
retail or wholesale shall use an Open Date to express the packing Regs. 40-3-1.01
date or the expiration date . . . (d) Manner of Expressing the (2013).
Expiration Date: An Expiration Date shall be the use of an Open Date
(as defined in 40-3-1-.01(b) of these Regulations) preceded by the
abbreviation ``Exp.'' [Example: EXP Jun 10] or the use of an Open
Date (as defined in 40-3-1-.01(b) of these Regulations) preceded by
the term ``Sell By'' [Example: Sell by JUN 10], or ``Not to be Sold
After'' [Example: Not to be Sold After JUN 10]; or ``Best Before''
[Example: Best Before JUN 10] or words of similar import.
Sale after date not permitted (e) Prohibited Acts: The following acts and the causing thereof Ga. Comp. R. &
are hereby prohibited. Regs. 40-3-1-.01
(2013).
1. Eggs are not to be sold or offered for sale at retail or
wholesale after the expiration date.
2. Eggs are not to be sold or offered for sale that do not meet
the U.S. Standards, Grades, and Weight Classes for Shell Eggs Part
56, Subpart C, Paragraphs 56.216 and 56.217 establishedpursuant to
the Federal Agricultural Marketing Act of 1946;
(2)(c) EGGS cannot be offered or held for sale after the Ga. Comp. R. &
EXPIRATION DATE, according to Departmental Rules Chapter 40-3-1- Regs. 40-7-1-.2
.01(e)1. (2013).
Infant formula Date labeling required (2)(a) Infant Formula.\2\ Ga. Comp. R. &
Regs. 40-7-1-.26
(2013).
1. Each and every container of liquid or powdered infant formula
made from two or more ingredients and represented as or intended as
a replacement or supplement for milk, shall conspicuously show in
common and express terms the calendar month and year after which
the product is not to be sold or used for human consumption.
2. The expiration date, or the date after which the product is
not to be sold or used for human consumption, shall be determined
by the manufacturer based on empirical data, or other verifiable
scientific means.
Sale after date not permitted (2) Expiration Dates. It shall be unlawful to sell or offer for Ga. Comp. R. &
sale, at retail or wholesale, the following food items past the Regs. 40-7-1-.26
EXPIRATION DATE stated on the label: (2013).
(a) Infant Formula.
Milk Date labeling required (2) All containers of milk and milk products shall be clearly Ga. Comp. R. &
marked with a Sell By Date with the exception of frozen desserts and Regs. 40-2-3-.01
some shelf stable products where processing codes may be required. (2013).
Sale after date not permitted/ (35) ``Expiration Date'' is synonymous with Pull Date, Best-By Ga. Comp. R. &
Definition (expiration date) Date, Best Before Date, Use-By Date, and Sell-By Date; and means the Regs. 40-7-1-.02
last date on which the following FOOD products can be sold at retail (2013).
or whole-
sale: . . . (e) Milk
Shellfish Date labeling required (8)(c)(a) Raw and frozen shucked molluscan shellfish shall be Ga. Comp. R. &
obtained in nonreturnable packages legibly bearing . . . the ``sell Regs. 40-7-1-.10
by'' date for packages with a capacity of less than l.87 L (\1/2\ (2013).
gallon) or the date shucked for packages with a capacity of l.87 L
(\1/2\ gallon) or more.
Sale after date not permitted/ (35) ``Expiration Date'' is synonymous with Pull Date, Best-By Ga. Comp. R. &
Definition (expiration date) Date, Best Before Date, Use-By Date, and Sell-By Date; and means the Regs. 40-7-1-.02
last date on which the following FOOD products can be sold at retail (2013).
or wholesale: . . . (d) Shucked oysters
Prepackaged Date labeling required (2)(b) Prepackaged Sandwiches. Ga. Comp. R. &
Sandwiches Regs. 40-7-1-.26
(2013).
1. Type A . . . (ii) Type A Sandwiches which are stored,
transported and offered for sale in a non-refrigerated state shall
be labeled with an EXPIRATION DATE not later than two (2) days from
the date of manufacture.
2. Type B Sandwiches.
(i) Type B Sandwiches are those prePACKAGED sandwiches which
are handled and sold as refrigerated sandwiches . . . (iii) The
EXPIRATION DATE for sandwiches shall state the last day of sale
in terms of the month, or its abbreviation, and numerical day of
the month (e.g., 6-6). The expiration day shall be preceded by an
explanatory term, such as ``Expires'', ``Sell-By'', or similar
wording. Other PRODUCT CODES or dating methods are prohibited.
3. Type C Sandwiches.
(i) Type C Sandwiches are those prePACKAGED sandwiches which
are immediately hard frozen after manufacture, [. . .] (iv) The
EXPIRATION DATE, as required in Subparagraphs (ii) and (iii) of
this section, shall meet the criteria as in 40-7-1-
.26(2)(b)2.(iii); and be conspicuously displayed on the front of
the wrapper.
Sale after date not permitted (2) Expiration Dates. It shall be unlawful to sell or offer for Ga. Comp. R. &
sale, at retail or wholesale, the following food items past the Regs. 40-7-1-.26
EXPIRATION DATE stated on the label: [. . .] (b) Prepackaged (2013).
Sandwiches. For the purpose of this section, prePACKAGED sandwiches
shall be classified as Type A, Type B or Type C.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hawaii
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk Date labeling required Every container of processed milk and milk product held in retail Haw. Code R. 11-
and wholesale stores, restaurants, schools, or similar establishments 15-39 (2013).
for sale shall be conspicuously and legibly marked by the milk plant
with the designation of the month and day of the month after which
the milk shall not be sold for human consumption.
Sale after date not restricted Not restricted for milk in Hawaii. No relevant state
law.
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Idaho
--------------------------------------------------------------------------------------------------------------------------------------------------------
---- ---- ---- ----
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Illinois
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs Date labeling optional (d) . . . it shall be allowable to include expiration dates in the Ill. Admin. Code
labeling of consumer-size containers at retail. An expiration date, tit. 8, 65.30
or other similar language as specified by USDA standards, that is not (2013).
later than 30 days from the candling date for Grade A eggs and not
later than the 15 days from the candling date for Grade AA eggs shall
be used.
Sale after date not permitted (d) . . . Eggs with an expiration date marked on the container Ill. Admin. Code
shall not be offered for sale or sold to a consumer after the date tit. 8, 65.30
marked on the container. (2013).
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Indiana
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs Date labeling required Sec. 2. All eggs offered for sale in consumer packages (cases, 370 Ind. Admin.
boxes, baskets, or containers): Code 1-3-2 (2013).
(1) shall be legibly dated (month and day or consecutive day of
the year) the day the eggs were packed;
(2) shall bear an expiration date of not more than thirty (30)
days from date of pack, excluding date of pack; and
(3) may contain a ``BEST BY'', ``BEST IF USED BY'', or ``USE
BY'' date in addition to the expiration date, which shall not
exceed forty-five (45) days from the date of pack, excluding the
date of pack.
Shell eggs labeled AA shall bear in distinctly legible form an
expiration date of no more than ten (10) days from date of pack
excluding date of pack. The expiration date shall be stated as the
month and day, for example, April 3 or 4-3, preceded by the letters
``EXP'' or ``SELL BY''. Quality is best if sold by the expiration
date.
Sale after date not restricted Not restricted for eggs in Indiana. No relevant state
law.
Shellfish Date labeling required Sec. 156 (a) Raw shucked shellfish shall be obtained in 410 Ind. Admin.
nonreturnable packages that bear a legible label that identifies the Code 7-24-156
. . . ``sell by'' date for packages with a capacity of less than one- (2013).
half (\1/2\) gallon or the date shucked for packages with a capacity
of one-half (\1/2\) gallon or more.
Sale after date not restricted Not restricted for shellfish in Indiana. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Iowa
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs Date labeling required (2) Each carton containing eggs for retail sale in Iowa which have Iowa Admin. Code r.
been candled and graded shall be marked with: 21-36.8 (2013).
a. The grade and size of the eggs contained;
b. The date the eggs were packed; and
c. The name and address of the distributor or packer.
Sale after date not restricted Not restricted for eggs in Iowa. No relevant state
law.
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Kansas
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs Date labeling required (a) Each container of eggs shall be labeled with the following Kan. Stat. Ann. 2-
information: . . . (6) the expiration date which shall be preceded by 2509 (2013).
``exp,'' ``sell by,'' ``use by'' or similar language.
Sale after date not restricted Not restricted for eggs in Kansas. No relevant state
law.
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Kentucky
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk/Milk Products Definition (Open date) Section 1. (29) ``Open date'' means the date which shall be 902 Ky. Admin.
affixed on a consumer package or container of Grade A pasteurized Regs. 50:010
milk or milk products subsequent to the date of manufacturing, (2013).
processing or packaging and which represents the period of time that
the product will remain unspoiled and acceptable for consumption when
transported, handled and stored under approved conditions.
Date labeling required Section 1. Open Date Required. No person shall sell or offer for 902 Ky. Admin.
sale any Grade A pasteurized milk or milk product in this state in a Regs. 50:080
consumer package that does not bear the open date as required by this (2013).
administrative regulation.
Sale after date not permitted Section 4. Enforcement. If a product is not sold within the period 902 Ky. Admin.
specified in the open date, the cabinet shall take action to remedy Regs. 50:080
the condition consistent with this administrative regulation by (2013).
removing the product from consumer channels and causing the product
to be returned to the milk plant of origin for destruction.
Shellfish Date labeling required Section 9. (4) The certified shellfish dealer shall assure that 902 Ky. Admin.
each package containing less than sixty-four (64) fluid ounces of Regs. 45:020
fresh or frozen shellfish shall have: (2013).
(b) A ``sell by date'' which provides a reasonable subsequent
shelf-life or the words ``Best if used by'' followed by a date if
the product would be expected to reach the end of its shelf-life.
The date shall consist of the abbreviation for the month and number
of the day of the month. For frozen shellfish, the year shall be
added to the date.
Sale after date not restricted Not restricted for shellfish in Kentucky. No relevant state
law.
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Louisiana
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs Date labeling required B. Each carton or sleeve shall have on each individual container La. Admin. Code
the following: tit. 7, pt. V
929 (2013).
2. the date when packed;
Sale after date not restricted Not restricted for eggs in Louisiana. No relevant state
law.
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Maine
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish Date labeling required A. Each individual package containing fresh or fresh frozen 13-188 Me. Code R.
shucked shellfish meat shall bear a permanent printed label approved 15.21 (2013).
by the Department that is legibly and indelibly marked in accordance
with applicable Federal and state regulations to contain, but not be
limited to, the following . . .
B. The dealer shall also label each individual package containing
less than 64 fluid ounces (1873 ml) of fresh or fresh frozen
shellfish with the following:
1. The words ``SELL BY DATE'' or ``BEST IF USED BY'' followed by
a date when the product would be expected to reach the end of its
shelf life.
2. The date shall consist of the abbreviation for the month and
number of the day of the month; and
3. For fresh frozen shellfish, the year shall be added to the
date.
Sale after date not restricted Not restricted for shellfish in Maine. No relevant state
law.
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Maryland
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk (Grade A) Date labeling required B. A permittee shall conspicuously and legibly mark the cap or non- Md. Code Regs.
glass container of Grade A fluid milk with the words ``Sell by'', 10.15.06.10
followed by the designation of the month and the day of the month (2013).
after which the product may not be sold, delivered, or offered for
sale.
Sale after date not permitted (with A. Except as provided in B of this regulation, a person may not Md. Code Regs.
exemptions) offer Grade A fluid milk for sale beyond the sell-by date. 10.15.06.11
B. The following establishments may use or serve Grade A fluid (2013).
milk up to 4 days beyond the sell-by date:
(1) Food service facilities;
(2) Hospitals;
(3) Schools;
(4) Institutions; and
(5) Places where milk is consumed on the premises.
C. An establishment listed in B of this regulation shall ensure
that Grade A fluid milk is used by the establishment not later than 4
days beyond the sell-by date.
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Massachusetts
--------------------------------------------------------------------------------------------------------------------------------------------------------
General Definition (best if used by date) (C) Definitions . . . 105 Mass. Code
Regs. 520.119
(2013).
Best If Used by Date: A date no later than the expiration of the
estimated shelf life of a food product . . .
Definition (sell by date) (C) Definitions . . . 105 Mass. Code
Regs. 520.119
(2013).
Sell by Date: A recommended last date of retail sale of a food
product which provides for a reasonable subsequent period of home
shelf-life.
Date label required (G)(1) Placement of the Date. A date shall be displayed with the 105 Mass. Code
term ``sell by'' or ``best if used by'' in reasonable proximity to Regs. 520.119
the designated date. (2013).
(2) Such a date shall consist of the common abbreviation for the
calendar month and numerals for the day and year, e.g., Feb. 10,
1980; or numerals for the month, day and year, e.g., 2/10/80, except
that:
(a) Perishable food products need not have the year
identification included in the date, and frozen and long shelf
life foods need not have the day identification included in the
date.
(b) Fresh bakery products may be dated with only the day
designation, e.g., Monday, or an abbreviation thereof, e.g., Mon.
(3) A date shall be accompanied by disclosure of recommended
product storage conditions, if such conditions significantly affect
the validity of such a date.
(4) A date and any recommended storage conditions shall be
printed, stamped, embossed, perforated, or otherwise shown on the
retail package, a label on such package, or a tag attached to such
package in a manner that is easily readable and separate from other
information, graphics, or lettering so as to be clearly visible to
a prospective purchaser.
(5) If a date and recommended storage conditions do not appear
on the principal display panel, the information panel, or on
another conspicuous portion of the individual retail package, a
statement must appear on the principal display or information panel
indicating where such information can be found elsewhere on the
package.
(6) An individual prepackaged food product which is not labeled
in accordance with the provisions of 105 CMR 520.119 shall be
deemed ``mis-branded'' pursuant to M.G.L. c. 94, 187.
Sale after date not permitted (F) Sale of Past Date Food Products. No person shall offer for 105 Mass. Code
sale in the Commonwealth any food product after the expiration of a Regs. 520.119
``sell by date'' or a ``best if used by date'' unless: (2013).
(1) It is wholesome and its sensory physical qualities have not
significantly diminished; and,
(2) It is segregated from food products which are not ``past
date''; and,
(3) It is clearly and conspicuously marked either on the package
or through the use of shelf markers or placecards, as being offered
for sale after the recommended last date of sale or best use.
(K)(1) Exemptions
105 CMR 520.101 through 520.205 do not apply to:
(a) Fresh meat, fresh poultry, fresh fish, fresh fruits, and
fresh vegetables offered for sale unpackaged or in a container
permitting sensory examination.
(b) Salt and crystallized refined sugar.
(c) Food products shipped in bulk form for use solely in the
manufacture of other foods and not for distribution to the consumer
in such bulk form or container.
(d) Individually packaged food products which are prepackaged as
components of a larger food item, if the larger food item is
identified with a date no later than the corresponding date for any
such components.
(e) Food products prepackaged for retail sale with a net weight
of less than 1\1/2\ ounces.
(f) Food products manufactured for sale outside the
Commonwealth, processed for sale outside the Commonwealth, or
stored for sale outside the Commonwealth.
Packaged Perishable Date labeling required (D) Open Dating of Perishable and Semi Perishable Food Products 105 Mass. Code
or Semi-Perishable No person shall sell, offer for sale, or have in his possession Regs. 520.119
Foods with intent to sell, prepackaged perishable or semi-perishable food (2013).
products unless they are identified with a ``sell-by-date'' or a
``best if used by date'' determined by the manufacturer, processor,
packer, repacker, retailer, or other person who had packaged such
food products and displayed in the form specified in 105 CMR 520.119
Sale after date not permitted (F) Sale of Past Date Food Products. No person shall offer for 105 Mass. Code
sale in the Commonwealth any food product after the expiration of a Regs. 520.119
``sell by date'' or a ``best if used by date'' unless: (2013).
(1) It is wholesome and its sensory physical qualities have not
significantly diminished; and,
(2) It is segregated from food products which are not ``past
date''; and,
(3) It is clearly and conspicuously marked either on the package
or through the use of shelf markers or placecards, as being offered
for sale after the recommended last date of sale or best use.
(K1)(1) Exemptions
105 CMR 520.101 through 520.205 do not apply to:
(a) Fresh meat, fresh poultry, fresh fish, fresh fruits, and
fresh vegetables offered for sale unpackaged or in a container
permitting sensory examination.
(b) Salt and crystallized refined sugar.
(c) Food products shipped in bulk form for use solely in the
manufacture of other foods and not for distribution to the consumer
in such bulk form or container.
(d) Individually packaged food products which are prepackaged as
components of a larger food item, if the larger food item is
identified with a date no later than the corresponding date for any
such components.
(e) Food products prepackaged for retail sale with a net weight
of less than 1\1/2\ ounces.
(f) Food products manufactured for sale outside the
Commonwealth, processed for sale outside the Commonwealth, or
stored for sale outside the Commonwealth.
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Michigan *
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General Definition (date) (a) ``Date'' means one of the following: Mich. Comp. Laws
Ann. 289.8107
(2013).
(i) For perishable food, the recommended last day of sale.
(ii) For nonperishable food, the recommended last day of sale or
consumption, if any.
Prepackaged Date labeling required (2) A retail food establishment shall not sell or offer for sale a Mich. Comp. Laws
Perishable Foods prepackaged perishable food unless the package bears a label with a Ann. 289.8107
date identified by month and day, except that bakery products with a (2013).
shelf life of 7 days or less may be dated with a day of the week or
an abbreviation. A retail food establishment may sell or offer for
sale a prepackaged nonperishable food with or without a label that
bears a date.
Date labeling required (b)(c)(3) The date for prepackaged perishable food may be Mich. Comp. Laws
displayed with or without explanatory terms. If explanatory terms are Ann. 289.8107
used, the terms shall be limited to one of the following: ``Sell by (2013).
__'', ``Sell before __'', ``Last date of sale __'', ``Recommended
last date of sale __'', or ``Recommended sale date __''. Other
meaningful terms may be used if specifically approved by the
department.
Sale after date not permitted (b)(c)(4) . . . A retail food establishment shall not sell or Mich. Comp. Laws
offer for sale any of the following foods under the following Ann. 289.8107
circumstances . . . (b) After the date, nonperishable food or (2013).
prepackaged perishable food unless the food is wholesome and sound
and is clearly identified as having passed the date. (c)
Nonperishable food that is no longer wholesome or sound.
Milk/Dairy Date labeling required Sec. 69(1) Each processor and manufacturer of milk and milk Mich. Comp. Laws
products sold in this state shall place on each container of milk and Ann. 288.539
milk products a recommended last day of sale by month and date. (2013).
(2) The sell-by date shall be expressed by the first three letters
of the month followed by the numeral designating the appropriate
calendar day or by expressing the calendar month numerically followed
by a numeral designating the calendar day.
(3) The sell-by date shall appear on that part of the container
that is most likely to be displayed, presented, or shown under
customary display conditions of sale. However, a cup container may
have the sell-by date placed on the bottom.
Sale after date not permitted (with Sec. 69(9) Milk and milk products shall not be offered for sale Mich. Comp. Laws
exemptions) after the sell-by date unless they are advertised to the final Ann. 288.539
consumer in a prominent manner as being beyond the recommended last (2013).
day of sale.
Meat Date labeling not required Not required for meat in Michigan. No relevant state
law.
Sale after date not permitted (with (4) A retail food establishment shall not sell or offer for sale Mich. Comp. Laws
exemptions) any of the following foods under the following circumstances: Ann. 289.8107
(2013).
(a) After the date, meat that has been removed from a federally
inspected retail package.
(9) If the date is the recommended last day of sale, the date
shall be calculated to allow areasonable period for the
subsequent consumption of the food, but shall not allow for a
periodwhich would result in a health nuisance as described in
section 2107.
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Minnesota
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General Definition (open date; quality Subp. 7. Open date. ``Open date'' means a date consisting of the Minn. R. 1550.1040
assurance date) name or abbreviation or numerical designation for the month, the (2013).
numerical designation for the day of the month, and the name or
abbreviation for the day of the week as provided herein, and if
appropriate, the year. An open date may be one of the following:
A. Date of manufacture: the date the product was manufactured or
processed. This date would be used with a statement such as ``Use
within 40 days of date shown'' or other similar phrasing.
B. Date of packaging: the date the product was placed in the
retail package in advance of sale. This date would be used with a
statement such as ``Use within 30 days of date shown'' or other
similar phrasing.
C. Pull date: the recommended last date for retail sale. With
this date use a statement such as ``Not to be sold after date
shown'' or ``Do not sell after date shown'' or ``Last day of sale''
or some equivalent phrasing.
D. Freshness date (quality assurance date): of the last date
which the manufacturer or processor estimates the product will
retain its original freshness or peak quality. With this date use a
statement such as ``For maximum freshness use before date shown''
or other equivalent phrasing.
E. Expiration date: the last date the product can be expected to
perform in a manner equal to consumer expectations. With this date
use a statement such as ``For best results use before the date
shown'' or other equivalent phrasing.
F. Shelf display date: the date used by a retailer to indicate
when an item was put on display.
The purpose of this date, if used, is to aid in the proper rotation
of stock and it would be used by the retailer on those perishable
foods which have short shelf life and which are exempt herein from
open dating.
Subp. 8. Quality assurance date. ``Quality assurance date'' means
any date after which the manufacturer or processor reasonably
determines that the product may, by spoilage, wiltage, drying, or any
other foreseeable and natural phenomenon, lose its palatability or
its desired or nutritive properties. As used in these parts,
``quality assurance date'' signifies a period of time beginning with
the date of manufacture or the date when the food is packed for
retail sale and ending with an open date as defined and explained in
subpart 7.
State preemption of local rules No subordinate unit of government may adopt or enforce any rule or Minn. Stat.
ordinance regarding open dating of perishable foods other than 31.786 (2013).
sections 31.781 to 31.789.
Eggs Date labeling required Subpart 1. Pack date. Consumer grades of eggs must be pack dated Minn. R. 1520.1900
in type not smaller than \1/4\" capitals to indicate the date of (2013).
pack. All cartons and cases must bear a pack date. Retailers who
carton eggs delivered in bulk cases must label the cartons with the
identical pack date on the bulk case.
Subp. 2. Quality assurance date. All consumer grade eggs must
carry a ``quality assurance date'' in addition to the pack date. The
pack date must be a Julian date to not confuse it with the quality
assurance date. The quality assurance date must be spelled out as the
month or number of the month and day, for example, ``2-1'' or ``Feb.
1.'' The quality assurance date must have an explanatory clause, such
as ``Sell by'' or ``Use by,'' the word ``Expires,'' or the
abbreviation ``Exp.''
Sale after date not restricted Nothing contained in sections 31.781 to 31.789 or any rule adopted Minn. Stat.
pursuant hereto shall require the removal from sale of a perishable 31.784 (2013).
food product after the expiration of the quality assurance date on
the product nor imply that after the expiration of the quality
assurance date on the product, the product is not wholesome or safe
for human consumption.
Perishable Foods Definition (perishable food) Subd. 3. ``Perishable food'' means any food intended for human Minn. Stat.
consumption (other than meat and poultry, frozen food, or fresh fruit 31.782 (2013).
or vegetables), which has a quality assurance date.
Date labeling required Every manufacturer or processor of perishable food, except meat, Minn. R. 1550.1060
poultry, frozen food, and fresh fruits and vegetables, as exempt by (2013).
Minnesota Statutes, section 31.782, subdivision 3, and except as
provided for herein, shall place on the package or label or labeling
of such perishable food an open date as described and provided for in
parts 1550.1030 to 1550.1250.
Date labeling required (exemptions) Perishable foods having quality assurance dates of more than 90 Minn. R. 1550.1160
days need not bear open dates. (2013).
Sale after date not restricted Nothing contained in sections 31.781 to 31.789 or any rule adopted Minn. Stat.
pursuant hereto shall require the removal from sale of a perishable 31.784 (2013).
food product after the expiration of the quality assurance date on
the product nor imply that after the expiration of the quality
assurance date on the product, the product is not wholesome or safe
for human consumption.
Shellfish Date labeling required A. Raw shucked shellfish shall be obtained in nonreturnable Minn. R. 4626.0200
packages that bear a legible label that identifies: (2013).
(2) the ``sell by'' date for packages with a capacity of less
than 1.87 liter (\1/2\ gallon) orthe date shucked for packages with
a capacity of 1.87 liter (\1/2\ gallon) or more.
Sale after date not restricted Nothing contained in sections 31.781 to 31.789 or any rule adopted Minn. Stat.
pursuant hereto shall require the removal from sale of a perishable 31.784 (2013).
food product after the expiration of the quality assurance date on
the product nor imply that after the expiration of the quality
assurance date on the product, the product is not wholesome or safe
for human consumption.
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Mississippi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish Date labeling required 100.06 On packages containing sixty-four (64) fluid ounces or 43-46 Miss. Code R.
more shall have on the lid and sidewall or bottom the ``DATE 17 (LexisNexis
SHUCKED'' indicated as the number of the day, month and year or the 2013).
month, day and year.
100.07 On packages of less than sixty-four (64) fluid ounces of
fresh product labeled with the wording ``SELL BY'' followed by a date
expressed as a month, day and year, not to exceed seventeen (17) days
from the date shucked.
Sale after date not restricted Not restricted for shellfish in Mississippi. No relevant state
law.
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Missouri
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---- ---- ---- ----
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Montana
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Milk (Grade A) Definition (pasteurized date) (1)(d) ``Pasteurized date'' is the same date a unit of milk Mont. Admin. R.
completes pasteurization. 32.8.101 (2013).
Definition (``sell-by'' date) (e) A ``sell-by'' date is defined as the 12th consecutive day, Mont. Admin. R.
never to exceed 288 hours, following pasteurization of a unit of 32.8.101 (2013).
milk.
Date labeling required (1) Each container into which grade A pasteurized milk is placed Mont. Admin. R.
for sale for public consumption must be marked with a pasteurized 32.8.203 (2013).
date and a sell-by date.
(a) The sell-by and pasteurized date will be displayed in Arabic
numerals or standard abbreviations for day and month, which shows
the last day the milk may be sold as requiredby ARM 32.8.202.
Sale after date not permitted (1) When 12 days or more have passed following pasteurization of a Mont. Admin. R.
unit of grade A milk, there will be no quantities of that unit of 32.8.202 (2013).
milk sold or otherwise offered for public consumption.
(2) No grade A pasteurized milk may be put in any container marked
with a sell-by date which is more than 12 days after pasteurization
of the milk for sale in Montana.
(3) Unless otherwise agreed upon, the person who offers the milk
for sale to the public is responsible for removing the milk at or
before the expiration of the 12 days.
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Nebraska
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---- ---- ---- ----
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Nevada *
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Milk Date labeling required 1. At the time of sale to the consumer by a retail store of any Nev. Admin. Code
milk or milk product, there must appear upon the package or container 584.4321 (2012).
of the product the date established by the processor as the date on
which, in order to ensure quality, the product is to be removed from
the shelf or similar location or vehicle from which the product is
offered for sale to the consumer. This section does not apply to any
bulk milk shipments of milk or milk products between distributors.
Date labeling required 2. The date respecting assurance of quality must appear at the top Nev. Admin. Code
of the carton or package and must be indelible and in a contrasting 584.4321 (2012).
color to the carton or package in the area where the date is affixed.
The date respecting assurance of quality must be the first three
letters of the month followed by the day of the month. The date must
be of a size commensurate with the size of the container and the
location on the container, but in no case may the letters be less
than \3/16\" in height.
Sale after date not restricted Not restricted for milk in Nevada. No relevant state
law.
Potentially Definition (potentially hazardous 1. ``Potentially hazardous food'' means: Nev. Admin. Code
Hazardous Foods foods) 446.025 (2012).
(a) Food that consists, in whole or in part, of milk, products
made from milk, eggs, meat, poultry, fish, shellfish, edible
crustacea or other ingredients in a form capable of supporting the
rapid and progressive growth of infectious or toxigenic
microorganisms.
(b) Cereals, fruits, vegetables and dairy products, such as
cooked rice, eggs, other than powdered eggs, baked or boiled
potatoes, moist soy protein products, any mixture that includes
garlic in oil, melons that have been cut, sliced or otherwise
breached, whipped butter, products of margarine that contain butter
or raw seed sprouts, that have been declared by the health
authority to be potentially hazardous.
2. The term does not include foods which have a pH level of 4.1 or
below or a value of water activity of 0.85 or less.
Date labeling required 4. Potentially hazardous foods which have been prepared by another Nev. Admin. Code
food establishment or food processing plant to be ready to eat and 446.145 (2012).
packaged in a container for refrigeration must be marked by the
manufacturer to indicate the date by which the food must be sold,
served or frozen
Sale after date not permitted 4. These foods must be discarded if not sold, served or frozen: Nev. Admin. Code
446.145 (2012).
(a) Within 10 calendar days after the original container is Nev. Admin. Code
opened; or 446.145 (2012).
(b) On or before the date by which the food must be sold or
used, as indicated on the container, whichever occurs first.
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New Hampshire
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Cream Date labeling required II. All retail containers of cream sold or offered for sale shall N.H. Rev. Stat Ann.
be conspicuously marked with the date of the last day on which it may 184:30-g (2013).
be sold or offered for sale with a reasonable expectation that the
cream will not be sour, as determined by the manufacturer.
Sale after date not restricted Not restricted for cream in New Hampshire. No relevant state
law.
Prewrapped Definition (expiration date) (a) ``Expiration date'' means the last day of sale, printed or N.H. Code Admin. R.
Sandwiches stamped on a pre-wrapped sandwich label, determined in accordance Agr. 1412.03
with these rules. (2013).
Date labeling required (c) The expiration date for a fresh refrigerated pre-wrapped N.H. Code Admin. R.
sandwich shall be clearly and legibly printed or stamped by the Agr. 1412.04
vendor on the sandwich wrapper label, at the time it is wrapped, by (2013).
stating ``expiration date'' or ``sell by'' followed by the month and
day.
(d) The expiration date for a previously frozen pre-wrapped
sandwich shall be clearly and conspicuously printed or stamped on the
sandwich wrapper label, at the time it is thawed for retail sale, by
stating ``expiration date'' or ``sell by'' followed by the month and
day.
(e) The expiration date for a fresh refrigerated pre-wrapped
sandwich shall be determined by the vendor who makes the pre-wrapped
sandwiches.
Sale after date not permitted The purpose of these rules is to protect public health and safety N.H. Code Admin. R.
by establishing an expiration date on all sandwiches beyond which Agr. 1412.01
each sandwich shall not be sold. These rules implement the procedures (2013).
of the department of agriculture, markets, and food pursuant to RSA
438:26-b, dating pre-wrapped sandwiches.
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New Jersey
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Milk/Dairy Date labeling required Containers of milk, certified milk, Vitamin D milk, homogenized N.J. Stat. Ann.
milk, low fat milk, protein fortified low fat milk, skim milk, 24:10-57.23
protein fortified skim milk, nonfat milk, protein fortified nonfat (2013).
milk, flavored milks and dairy drinks, buttermilk, cultured
buttermilk, yogurt, eggnog, creams, half-and-half and all other fluid
milk products designated by the department shall be marked with the
name and address of the processor or the pasteurizing plant number as
assigned by the department or the state of origin and the name and
address of the distributor. All containers of fluid milk products,
including those mentioned above, intended for sale to consumers,
(except for those products which are sterilized and packaged in
hermetically sealed containers), shall be marked with a legend ``NOT
TO BE SOLD AFTER'', or ``SELL BY'', or any other clearly
understandable legend approved by the department, followed or
accompanied by the first three letters of the month where possible .
. . If two letters are used the letters MR shall mean MARCH and MY
shall mean MAY; JN shall mean JUNE and JL shall mean JULY.
Sale after date not permitted No fluid milk product listed in this section shall be sold or N.J. Stat. Ann.
offered for sale after 11:59 p.m. of the date appearing on the 24:10-57.23
containers so marked. (2013).
(d) No milk product referred to in this regulation shall be sold N.J. Admin. Code
or offered for sale after 11:59 p.m. of the date appearing on the 8:21-10.20 (2013).
package or container. Products delivered prior to the ``shelf-life
expiration date'' may be consumed on the premises beyond the date
appearing thereon.
Shellfish Date labeling required (n)(1) Raw shucked shellfish, packaging and identification N.J. Admin. Code
requirements include the following: . . . 8:24-3.2 (2013).
ii. The ``sell by'' date for packages with a capacity of less
than \1/2\ gallon or the dateshucked for packages with a capacity
of \1/2\ gallon or more.
Sale after date not restricted Not restricted for shellfish in New Jersey. No relevant state
law.
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New Mexico
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk/Dairy Definition (pull date) E. ``Pull date'' means the last day on which a product is to be N.M. Code R.
sold or offered for sale for human consumption. 21.34.5.7 (2013).
Date labeling required A. In addition to other labeling requirements, except as otherwise N.M. Code R.
exempted in this rule, all processors and producer distributors shall 21.34.5.9 (2013).
label each container of one-half (\1/2\) pint or larger of milk, low-
fat milk, non-fat milk, flavored milk, skim milk, half and half and
creams sold or offered for sale with a legible pull date.
B. The length of pull date for pasteurized products shall be
determined by the processor.
C. The length of pull date for raw products shall not exceed five
(5) days including the date of packaging.
Sale after date not permitted Dairy products required to be labeled with a pull date and those N.M. Code R.
dairy products labeled with an optional pull date, except frozen, 21.34.5.16 (2013).
dried, condensed or evaporated products, may not be sold or offered
for sale for human consumption by any person after the pull date.
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New York
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---- ---- ---- ----
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North Carolina
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General Alteration of date labels not A food shall be deemed to be misbranded: . . . N.C. Gen. Stat.
permitted Ann. 106-130
(2013).
(15) If the labeling provided by the manufacturer, packer,
distributor, or retailer on meat, meat products, poultry, or
seafood includes a ``sell-by'' date or other indicator of a last
recommended day of sale, and the date has been removed, obscured,
or altered by any person other than the customer. This subdivision
does not prohibit the removal of a label for the purpose of
repackaging and relabeling a food item so long as the new package
or new label does not bear a ``sell-by'' date or other indicator of
a last recommended day of sale later than the original package.
This subdivision does not prohibit relabeling of meat, meat
products, poultry, or seafood that has had its shelf life extended
through freezing, cooking, or other additional processing that
extends the shelf life of the product.
Shellfish Definition (sell by date) (26) ``SELL BY date'' means a date conspicuously placed on a 15A N.C. Admin.
container or tag by which a consumer is informed of the latest date Code 18A.0301
the product will remain suitable for sale. (2013).
Date labeling required (c) Any container of shucked shellfish which has a capacity of 64 15A N.C. Admin.
fluid ounces or more shall be dated as of the date shucked on both Code 18A.0614
the lid and sidewall or bottom. Any container of shucked shellfish (2013).
which has a capacity of less than 64 fluid ounces shall indicate a
SELL BY date.
Sale after date not restricted Not restricted for shellfish in North Carolina. No relevant state
law.
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North Dakota
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish Date labeling required 1. Raw shucked shellfish shall be obtained in nonreturnable N.D. Admin. Code 33-
packages which bear a legible label that identifies . . . 33-04-03.1 (2013).
(b) The sell by date for packages with a capacity of less than
1.87 L (\1/2\ gallon) or the date shucked for packages with a
capacity of 1.87 L (\1/2\ gallon) or more.
Sale after date not restricted Not restricted for shellfish in North Dakota. No relevant state
law.
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Ohio
--------------------------------------------------------------------------------------------------------------------------------------------------------
General State preemption of local rules (C) To ensure that a uniform system of determining the useful Ohio Rev. Code Ann.
product life of perishable food products for sale within the state is 3715.171 (2013).
established, persons complying with this section and the rules
established pursuant thereto are exempt from any local ordinances or
rules pertaining to the quality assurance period of food products or
the manner in which the quality assurance period and perishability of
food products are to be disclosed.
Definition (quality assurance period) ``Quality assurance period'' means the period of time following Ohio Rev. Code Ann.
the completion of normal manufacturing, processing, and packaging 3715.171 (2013).
procedures during which a food product subjected to normal conditions
of exposure will maintain conformity with all of the characteristics
normally associated with the food product and will provide the
benefits for which the food product is normally purchased. Food
product characteristics include, but are not limited to, taste,
texture, smell, nutritional value, and reaction value with other food
products if used as an ingredient with other food products.
Definition (sale date) ``Sale date'' means the date by which the manufacturer, processor, Ohio Rev. Code Ann.
or packager of a packaged food product recommends that the food 3715.171 (2013).
product be sold for consumption based on the food product's quality
assurance period.
Packaged Perishable Date labeling required (A) Except as provided in division (B) of this section, no person Ohio Rev. Code Ann.
Foods shall knowingly sell or offer to sell in this state any packaged 3715.171 (2013).
perishable food product that has a quality assurance period of thirty
days or less, unless the package is clearly marked by the packager
with its sale date. The sale date shall be legible and understandable
to the consumer. The director of agriculture shall make rules in
accordance with Chapter 119. of the Revised Code establishing the
manner in which the sale date shall be affixed to food products.
(B) The provisions of this section do not apply to fresh fruits
and vegetables or to meat, including poultry, whether packaged or
unpackaged, nor do they apply to packaged perishable food products
when sold or offered for sale at any place of business where less
than one hundred thousand dollars of all products were sold during
the preceding year.
Sale after date not restricted Not restricted for packaged perishable foods in Ohio. No relevant state
law.
Shellfish Date labeling required (F)(iii)(d) The dealer shall assure that each package containing Ohio Admin. Code
less than sixty-four fluid ounces of fresh or frozen shellfish shall 901:3-8-03 (2013).
have: . . .
(ii) A ``Sell by date'' which provides a reasonable subsequent
shelf-life or the words ``Best if used by'' followed by a date when
the product would be expected to reach the end of its shelf-life.
The date shall consist of the abbreviation for the month and number
of the day of the month. For frozen shellfish, the year will be
added to the date.
Sale after date not restricted Not restricted for shellfish in Ohio. No relevant state
law.
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Oklahoma *
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Eggs Date labeling required B. An expiration date shall be used on the container, the date Okla. Stat. tit. 2,
shall be preceded by ``EXP'', ``sell by'', or ``use through''. 10-72 (2013).
Sale after date not restricted Not restricted for eggs in Oklahoma. No relevant state
law.
Shellfish Date labeling required (a) Raw shucked shellfish shall be obtained in nonreturnable Okla. Admin. Code
packages which bear a legible label that identifies the . . . (2) The 310:257-5-15
``sell by'' or ``best if used by'' date for packages with a capacity (2013).
of less than 1.89 L (\1/2\ gallon) or the date shucked for packages
with a capacity of 1.89 L (\1/2\ gallon) or more.
Sale after date not restricted Not restricted for shellfish in Oklahoma. No relevant state
law.
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Oregon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Packaged Perishable Definition (open date) (2) ``Open date'' means a date clearly visible to retail consumers Or. Rev. Stat.
Foods showing the pull date, packing date or other date described in ORS 616.805 (2013).
616.835(2).
Date labeling required No person shall sell or offer for sale at retail any packaged Or. Rev. Stat.
perishable food unless the package bears a clearly marked, printed or 616.815 (2013).
stamped label showing the open date for the perishable food in the
package. Such label shall be so designed and placed as to be clearly
visible to the consumer.
Unless otherwise provided, the following perishable foods shall be Or. Admin. R. 603-
open date labeled with the pull date: 025-0080 (2013).
(1) Processed or cured meat and meat products including wieners,
bologna, luncheon meat, liver sausage, salami, braunschweiger, hams
and ham products, and bacon (tuck or vacuum packed).
(2) Fluid milk and cream products for which a standard of
identity has been established under ORS Chapter 621, cottage
cheeses, yogurts, cheeses with a moisture content of more than 50
percent, sour creams, and party dips.
(3) Bakery products as defined in subsection (2) of ORS 625.010,
pastries, cookies, or crackers having a moisture content of 16
percent or more.
(4) Eggs in shell.
(5) Vegetable, macaroni, or potato salads that use mayonnaise or
other acidic dressing as an ingredient or dressing, puddings,
sandwiches, and other ready-to-eat products.
(6) Fowl, including chickens, fryers, turkeys, ducks, geese, and
other domesticated birds.
(7) Fresh or raw packaged meat products, whether whole, ground,
chopped or fabricated.
(8) Fresh sausage products.
(9) Fresh seafood products.
(10) Fresh fish products (not breaded or precooked).
Sale after date not permitted (with (1) No person shall sell or offer for sale at retail any packaged Or. Rev. Stat.
exemptions) perishable food after the expiration of the open pull date appearing 616.825 (2013).
on the label of the package or container unless:
(a) The package has been separated from packages of perishable
food with open pull dates that have not expired;
(b) Each such package or group of packages is clearly identified
in retail display as having an expired open pull date; and
(c) The food is fit for human consumption according to
applicable state and Federal law.
(2) Notwithstanding the provisions of this section, a vendor shall
be allowed the first 8 business hours after the expiration of the
open pull date within which to remove all packages with an expired
pull date.
Alteration of date labels not No person shall: Or. Rev. Stat.
permitted 616.830 (2013).
(1) Alter, deface or remove the open date from any perishable
food retail or shipping package carton, container or wrapper.
(2) Label any perishable food retail or shipping package carton,
container or wrapper in a manner that does not conform to the rules
promulgated pursuant to ORS 616.835.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pennsylvania
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk Date labeling required (a) Label requirement. The cap or nonglass container of 7 Pa. Code 59a.15
pasteurized milk held in retail food stores, restaurants, schools or (2013).
similar food facilities for resale shall be conspicuously and legibly
marked in a contrasting color with the designation of the ``sell-by''
date--the month and day of the month after which the product may not
be sold or offered for sale. The designation may be numerical--such
as ``8-15''--or with the use of an abbreviation for the month, such
as ``AUG 15 or AU 15.'' The words ``Sell by'' or ``Not to be sold
after'' must precede the designation of the date, or the statement
``Not to be sold after the date stamped above'' must appear legibly
on the container. This designation of the date may not exceed 17 days
beginning after midnight on the day on which the milk was
pasteurized.
Sale after date not permitted (c) Prohibition. Pasteurized milk may not be sold or offered for 7 Pa. Code 59a.15
sale if the milk is sold or offered for sale after the sell-by date (2013).
designated on the container.
Shellfish Date labeling required (a) Label requirement. Raw shucked shellfish shall be obtained in 7 Pa. Code 46.246
nonreturnable packages which bear a legible label that identifies the (2013).
following:[.] (2) For packages with a capacity of less than 1.87 L
(\1/2\ gallon): the ``sell by'' or ``best if used by'' date.
Sale after date not restricted Not restricted for shellfish in Pennsylvania. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rhode Island
--------------------------------------------------------------------------------------------------------------------------------------------------------
Packaged Bakery Definition (pull date) (C) `Pull Date' is the final date or day as established by the 31-3-5 R.I. Code R.
Products packer or manufacturer upon which a packaged bakery product may be 21-33-PBP 1.00
sold, except as provided under Chapter 21-33, Section 3 and Section (2013).
R21-33-PBP 6.00 of these rules and regulations.
Definition (packaged bakery product) (A) A `Packaged Bakery Product' is a packaged bakery or bakery- 31-3-5 R.I. Code R.
type product consisting of flour and other ingredients having a 21-33-PBP 1.00
normal shelf life as established by the manufacturer or distributor (2013).
of sixty (60) days or less.
The term shall not include frozen or canned products or foods
which are or may be baked as part of a cooking or preparation
procedure.
Date labeling required All packaged bakery product sold in this state shall have a pull 31-3-5 R.I. Code R.
date in a conspicuous place upon each package in which they are sold 21-33-PBP 2.00
in accordance with these regulations and Chapter 21-33 of Rhode (2013).
Island General Laws of 1956, as amended.
Sale after date not permitted (with Packaged bakery products may be sold after their `Pull Date', 31-3-5 R.I. Code R.
exemptions) provided however, that: 21-33-PBP 6.00
(2013).
(1) Such products are segregated from such products which have
not passed their `Pull Date', and
(2) Shelf markers or placards, or markings on the individual
packages clearly identify such products as being offered for sale
`Past Date'.
The requirements of this section do not apply to any business whose
exclusive purpose is the sale of past-date bakery products.
Shellfish Date labeling required 6.6(d) The dealer shall assure that each package containing less 31-3-9 R.I. Code R.
than 64 fluid ounces of fresh or frozen shellfish shall have: 6.0 (2013).
(i) The shucker-packer's or repacker's license number on the
label; and
(ii) A ``SELL BY DATE'' which provides a reasonable subsequent
shelf-life or the words ``BEST IF USED BY'' followed by a date when
the product would be expected to reach the end of its shelf-life.
The date shall consist of the abbreviation for the month and number
of the day of the month. For frozen shellfish, the year will be
added to the date.
Sale after date not restricted Not restricted for shellfish in Rhode Island. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Carolina
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs Date labeling required (E) . . . On this label must be printed or stamped, legibly in S.C. Code Ann. 39-
letters not less than \1/4\" in size, the date when the eggs were 39-140 (2013).
packed and candled or the expiration date, which may not exceed forty-
five days from the date packed
Sale after date not restricted Not restricted for eggs in South Carolina. No relevant state
law.
Shellfish Date labeling required (2) Packages containing less than sixty-four (64) fluid ounces S.C. Code Ann.
shall include: Regs. 61-47
(2013).
(a) The words ``SELL BY'' or ``BEST IF USED BY'' followed by a
reasonable date when the product would be expected to reach the end
of its shelf life;
(b) The date as a month and day of the month; and
(c) For fresh frozen shellfish, the year shall be added to the
date.
Sale after date not restricted Not restricted for shellfish in South Carolina. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Dakota *
--------------------------------------------------------------------------------------------------------------------------------------------------------
---- ---- ---- ----
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tennessee
--------------------------------------------------------------------------------------------------------------------------------------------------------
---- ---- ---- ----
--------------------------------------------------------------------------------------------------------------------------------------------------------
Texas
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish Date labeling required (d) The dealer shall assure that each package containing less than 25 Tex. Admin. Code
64 fluid ounces of fresh or frozen molluscan shellfish shall have [. 241.66 (2013).
. .] (2) a ``SELL BY DATE'' which provides a reasonable subsequent
shelf life or the words ``BEST IF USED BY'' followed by a date when
the product would be expected to reach the end of its shelf life.
Sale after date not restricted Not restricted for shellfish in Texas. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Utah
--------------------------------------------------------------------------------------------------------------------------------------------------------
---- ---- ---- ----
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vermont
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish Date labeling required R.1. Raw shucked shellfish shall be obtained in nonreturnable 12-5 Vt. Code R.
packages which bear a legible label that identifies the: . . . b. The 30:5-204 (2013).
``sell by'' date for packages with a capacity of less than 1.87 L (\1/
2\ gallon) or the date shucked for packages with a capacity of 1.87 L
(\1/2\gallon) or more.
Sale after date not restricted Not restricted for shellfish in Vermont. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Virginia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dairy Definition (dairy products) ``Dairy product'' means butter, natural or processed cheese, dry 2 VA. Admin. Code
whole milk, nonfat dry milk, dry buttermilk, dry whey, evaporated 5-531-10 (2013).
whole or skim milk, condensed whole milk and condensed plain or
sweetened skim milk.
Date labeling required 4. No person may sell or offer for sale to the final consumer any 2 VA. Admin. Code
dairy product in container or package form that does not bear a 5-531-60 (2013).
``sell by date.''
Sale after date not permitted 5. No person may sell or offer for sale to the final consumer any 2 VA. Admin. Code
dairy product in container or package form after the ``sell by date'' 5-531-60 (2013).
shown on the package.
Alteration of date labels not 6. No person may change, remove, or replace the ``sell by date'' 2 VA. Admin. Code
permitted on any dairy product in container or package form after the ``sell by 5-531-60 (2013).
date'' is initially affixed to the package.
Shellfish Date labeling required A. Raw shucked shellfish shall be obtained in nonreturnable 2 VA. Admin. Code
packages that bear a legible label that identifies the: . . . ``sell 5-585-400 (2013).
by'' or ``best if used by'' date for packages with a capacity of less
than \1/2\ gallon (1.87 L) or the date shucked for packages with a
capacity of \1/2\ gallon (1.87 L) or more.
Sale after date not restricted Not restricted for shellfish in Virginia. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Washington *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Perishable Packaged Definition (pull date) (2) ``Pull date'' means the latest date a packaged food product Wash. Rev. Code
Food Goods shall be offered for sale to the public. Ann. 69.04.900
(2013).
Definition (shelf life) (3) ``Shelf life'' means the length of time during which a Wash. Rev. Code
packaged food product will retain its safe consumption quality if Ann. 69.04.900
stored under proper temperature conditions. (2013).
Definition (perishable packaged food (1) ``Perishable packaged food goods'' means and includes all Wash. Rev. Code
goods) foods and beverages, except alcoholic beverages, frozen foods, fresh Ann. 69.04.900
meat, poultry and fish and a raw agricultural commodity as defined in (2013).
this chapter, intended for human consumption which are canned,
bottled, or packaged other than at the time and point of retail sale,
which have a high risk of spoilage within a period of thirty days,
and as determined by the director of the department of agriculture by
rule and regulation to be perishable.
Date labeling required All perishable packaged food goods with a projected shelf life of Wash. Rev. Code
thirty days or less, which are offered for sale to the public after Ann. 69.04.905
January 1, 1974 shall state on the package the pull date. (2013).
Sale after date not permitted (with Can products be sold after the pull date? Yes, products can be Wash. Admin. Code
exemptions) sold after the pull date has expired if they are still wholesome, not 16-142-130 (2013).
a danger to health and clearly labeled indicating that the pull date
has expired. They must be separated from products that are still
within pull date.
Alteration of date labels not Can pull dates be changed? No, pull dates on perishable packaged Wash. Admin. Code
permitted foods subject to pull dating may not be changed, crossed-out or 16-142-150 (2013).
concealed.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Washington, D.C.
--------------------------------------------------------------------------------------------------------------------------------------------------------
General Definition (pull date) Pull date--the date after which the food may not be sold, unless D.C. Mun. Regs.
isolated and prominently labeled as being beyond the last date on tit. 25-A, 9901
which the food should be sold without a significant risk of spoilage, (2013).
loss of palatability if stored by the consumer after that date and in
the manner which the food can reasonably be expected to be stored.
Potentially Date labeling required 718.1 All pasteurized fluid milk, fresh meat, poultry, fish, D.C. Mun. Regs.
Hazardous Foods, bread products, eggs, butter, cheese, cold meat cuts, mildly tit. 25-A, 718
Dairy, Meat/ processed pasteurized products, and potentially hazardous foods sold (2013).
Poultry, Eggs in food-retail establishments which are pre-wrapped and not intended
to be eaten on the premises of the food establishment shall have
easily understood pull dates prominently displayed on their
containers.
Sale after date not permitted Pull date--the date after which the food may not be sold, unless D.C. Mun. Regs.
isolated and prominently labeled as being beyond the last date on tit. 25-A, 9901
which the food should be sold without a significant risk of spoilage, (2013).
loss of palatability if stored by the consumer after that date and in
the manner which the food can reasonably be expected to be stored.
Alteration of date labels not 718.2 If any food that has a pull date is rewrapped, the new D.C. Mun. Regs.
permitted package shall retain the original pull date and the word tit. 25-A, 718
``REWRAPPED'' shall be prominent displayed on the package. (2013).
Packaged Perishable Date labeling not required Date labeling not required for packaged perishable food in Washington, No relevant state
Food D.C. law.
Sale after date not permitted No person shall sell, trade, or barter any perishable packaged D.C. Mun. Regs.
food beyond the pull date appearing thereon. tit. 25-B, 3606
(2013).
Alteration of date labels not 3606.2 No person shall rewrap or repackage any packaged D.C. Mun. Regs.
permitted perishable food with the intention of placing a pull date on the food tit. 25-B, 3606
that is different from the original pull date. (2013).
Shellfish Date labeling required 2403.5 Each individual package containing less than sixty-four D.C. Mun. Regs.
fluid ounces (64 fl. oz.) of fresh or frozen shellfish shall be tit. 25-B, 2403
labeled with the following information: . . . (b) A ``Sell by'' date (2013).
which provides a reasonable subsequent shelf-life or the words ``Best
if used by'' followed by a date when the product would be expected to
reach the end of its shelf-life.
Sale after date not restricted Not restricted for shellfish in Washington, D.C. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
West Virginia *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs Date labeling required 6.5 Egg producers who own three thousand birds or less shall W. Va. Code R. 61-
denote the expiration date of the eggs on the outside container in 7A-6 (2013).
which the egg cards are transported or on an invoice provided to the
retailer.
Sale after date not restricted Not restricted for eggs in West Virginia. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wisconsin
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs Date labeling required (1)(e) One of the following dates, in addition to the packing date Wis. Admin. Code
under par. (d): Agric. Trade &
Consumer Prot.
88-08 (2013).
1. An expiration date or ``sell by'' date after which the eggs
may not be offered for sale or sold at retail. The expiration date
may not be more than 30 days from the packing date, including the
day on which the eggs were packed. The expiration date or ``sell
by'' date shall be designated by at least the first three letters
of the month and the date within that month. The date shall be
accompanied by a phrase or abbreviation such as ``sell by'' or
``EXP'' which clearly identifies it as an expiration date or ``sell
by'' date.
2. A ``use by'' date consisting of at least the first three
letters of the month, and the date within that month. The date
shall be accompanied by a phrase such as ``use by,'' ``best if used
by'' or ``use before,'' which indicates that the consumer should
use the eggs before that date.
Sale after date not permitted (4)(a) No eggs may be sold as whole eggs at retail after the Wis. Admin. Code
expiration or ``sell by'' date specified for those eggs under subs. Agric. Trade &
(1)(e)1. or (2)(g)1. If otherwise used as human food, the eggs shall Consumer Prot.
meet at least grade B egg standards. 88-08 (2013).
Alteration of date labels not (4)(b) Eggs labeled with dates under subs. (1)(e) or (2)(g) shall Wis. Admin. Code
permitted retain those dates and may not be repackaged or relabeled with any Agric. Trade &
other dates. Consumer Prot.
88-08 (2013).
Shellfish Date labeling required 3-202.17(A) Raw shucked shellfish shall be obtained in Wis. Admin. Code
nonreturnable packages which bear a legible label that identifies Agric. Trade &
the: . . . (2) The ``sell by'' date for packages with a capacity of Consumer Prot.
less than 1.87 L (\1/2\ gallon) or the date shucked for packages with 75, App. (2013).
a capacity of 1.87 L (\1/2\ gallon) or more.
Sale after date not restricted Not restricted for shellfish in Wisconsin. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wyoming
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish Date labeling required (a) Raw shucked shellfish shall be obtained in nonreturnable AGR FSF 3 Wyo. Code
packages which bear a legible label that identifies the: . . . (ii) R. 11 (2013).
The ``sell by'' date for packages with a capacity of less than \1/2\
(2) gallon (1.87 [L]) or the date shucked for packages with a
capacity of \1/2\ (2) gallon (1.87 [L]) or more.
Sale after date not restricted Not restricted for shellfish in Wyoming. No relevant state
law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Endnotes
1. Dana Gunders, Natural Resources Def. Council, Wasted: How America
Is Losing Up to 40% of Its Food from Farm to Fork to Landfill 12
(2012).
2. Jonathan Bloom, American Wasteland xii (Da Capo Lifelong Books,
2011).
3. Gunders, supra note 1, at 13.
4. Food Security in the U.S., U.S. Dep't of Agric. Econ. Research
Serv. (last updated Sept. 4, 2012), http://www.ers.usda.gov/topics/food-
nutrition-assistance/food-security-in-the-us/key-statistics-
graphics.aspx (last visited Apr. 4, 2013).
5. Gunders, supra note 1, at 4. According to another statistic,
redistributing only two percent of food waste could provide the needed
calories/day/person to lift all food-insecure Americans above the
hunger line. Marlene White, American Wasteland: Jonathan Bloom on Why
Food Waste Deserves Our Attention, worldwatch.org (Mar. 14, 2012),
http://blogs.worldwatch.org/nourishingtheplanet/american-wasteland-
jonathan-bloomon-why-food-waste-deserves-our-attention (last visited
July 3, 2013).
6. McKinsey Global Inst., Resource Revolution: Meeting The World's
Energy, Materials, Food, And Water Needs 72 (2011).
7. Jean C. Buzby & Jeffry Hyman, Total and Per Capita Value of Food
Loss in the United States, 37 Food Pol'y 561, 562 (2012).
8 McKinsey Global Inst., supra note 6, at 72.
9. Kevin D. Hall, et al., The Progressive Increase of Food Waste in
America and Its Environmental Impact, 4 PLoS ONE 1, 2(2009), available
at http://www.plosone.org/article/
info%3Adoi%2F10.1371%2Fjournal.pone.0007940.
10. Bloom, supra note 2, at xi.
11. Bloom, supra note 2, at 187.
12. See, e.g., WRAP, Consumer Insight: Date Labels and Storage
Guidance (2011), available at http://www.wrap.org.uk/sites/files/wrap/
Technical_report_dates.pdf; Gunders, supra note 1, at 12-13; Bloom,
supra note 2, at 164-67.
13. Bloom, supra note Error! Bookmark not defined., at 166.
14. Bio Intelligence Serv., Preparatory Study on Food Waste Across
EU 27, at 124-27 (2010).
15. Office of Tech. Assessment, Open Shelf-Life Dating of Food 1
(1979), available at www.princeton.edu/ ota/disk3/1979/7911/7911.PDF
(last visited Dec. 21, 2012). The Office of Technology Assessment was
an office of the United States Congress from 1972 to 1995. Its reports
on technological and scientific issues were widely praised for their
objectivity and authoritative analysis. See Technology Assessment and
Congress, Federation of American Scientists' Office of Technology
Assessment Archive, http://www.fas.org/ota/
technology_assessment_and_congress/ (last visited July 3, 2013).
16. Office of Tech. Assessment, supra note 1, at 1.
17. Id.; see also Inst. of Food Technologists, Open Shelf-life
Dating of Food, 35 Food Tech. 89, 89 (1981).
18. Gerri Ransom, National Advisory Committee on Microbiological
Criteria for Foods, Consideration for Establishing Safety-Based Consume-
By Date Labels for Refrigerated Ready-to-Eat Foods, 68 J. of Food
Protection 1761, 1763 (2005).
19. U.S. Gov't Accountability Office, MWD-75-19, Food Labeling:
Goals, Shortcomings, and Proposed Changes 44 (1975), available at http:/
/www.gao.gov/assets/120/115505.pdf.
20. Id.
21. Ransom, supra note 18, at 1763.
22. See Gov't Accountability Office, supra note 19, at 43. When the
New York State Consumer Protection Board released a book that allowed
consumers to decipher closed dates in the early 1980s, the agency was
inundated with more than 100,000 requests for the publication in the
first year. See Inst. of Food Technologists, supra note 89, at 89.
23. A USDA study from 1973 found that more than 60 retail chains,
comprising about 15,000 food stores nationwide, had implemented open
dating systems. See Gov't Accountability Office, supra note Error!
Bookmark not defined., at 45. While open code dating became more
prevalent in the 1970s, the practice itself can be traced back further.
There is evidence of open dates being used as early as 1917, and in the
1930s Consumer Reports found that consumers had a desire for a more
shopper-friendly date label system. See Theodore P. Labuza & Lynn M.
Szybist, Open Dating of Foods 7 (2001).
24. Id. at 45.
25. Id. at 43.
26. Office of Tech. Assessment, supra note 15, at 1
27. Id. at 5.
28. Id. at 5.
29. Carol Haddix, Congress Made Food Label a Big Deal, Chicago
Tribune, Jan. 12, 1978, at F19, available at ProQuest Historical
Newspapers, Doc. No. 169689062.
30. Gov't Accountability Office, supra note 19, at 48.
31. Id.
32. Id.
33. Id. at 49.
34. See S. 2373, 93d Cong., 1st Sess. (1973) (the one bill that did
eventually pass the Senate). See also Office of Tech. Assessment, supra
note 15, at 3.
35. Select Comm. On Nutrition & Human Needs, 93d Cong., National
Nutrition Policy: Nutrition and the Consumer, Working Paper 11 (Comm.
Print 1974) (prepared by Freeman H. Quimby & Cynthia B. Chapman).
36. See Id.
37. 92 Cong. Rec. S201101-11 (June 16, 1971) (statement of Sen.
Hartke).
38. Food Amendments of 1974: Hearing on S. 2373 and Amendments 962
and 1053, and S. 3012 Before the S. Comm. on Commerce, 93rd Cong. 219
(1974) (statement of Thomas K. Zaucha of the National Association of
Food Chains.)
39. Harvey L. Hensel, Look What Consumerism Has Done Now, 29 Food
Drug Cosm. L.J. 220, 226 (1974).
40. Id. at 227-28 (1974).
41. Gov't Accountability Office, supra note 19, at 44, 47; Inst. of
Food Technologists, supra note 17, at 94-96.
42. Id. at 46-47.
43. Id. at 48.
44. See, e.g., Hensel, supra note 39, at 227 Select Comm. On
Nutrition and Human Needs, supra note 37, at 11.
45. Hensel, supra note 39, at 227 (noting that in 1974 sixteen open
code dating state laws already existed, and also that twenty-three
states were in the process of introducing eighty-four open code dating
bills in the legislative session).
46. Id. at 227-28.
47. Gov't Accountability Office, supra note 19, at 49.
48. H.R. 2897, 106th Cong. (1999).
49. See H.R. 2897, 106th Cong. (1999); H.R. 2611, 107th Cong.
(2001); H.R. 468, 108th Cong. (2003); H.R. 3570, 109th Cong. (2005);
H.R. 4233, 110th Cong. (2005); HR 2087, 111th Cong. (2009).
50. H.R. 2087, 111th Cong. (2009).
51. H.R. 2087, 111th Cong., 6 (2009).
52. H.R. 2087, 111th Cong., 2 (2009); 21 CFR 101.9(j) (2013).
53. H.R. 2087, 111th Cong., 1 (2009).
54. Fact Sheets: Food Product Dating, U.S. Dep't of Agric. Food
Safety & Inspection Serv., http://www.fsis.usda.gov/wps/portal/fsis/
topics/food-safety-education/get-answers/foodsafety-fact-sheets/food-
labeling/food-product-dating/foodproduct-dating (last visited July 3,
2013). The exception to this rule is infant formula, for which the
Federal Government requires a ``use by'' date. See 21 CFR 107.20
(2013).
55. Eastern Research Grp., Inc., Current State of Food Product Open
Dates In The U.S. 1-13 (2003).
56. U.S. Const. art I, 8, cl. 3. Congress shall have the power
``to regulate commerce with foreign nations, among the several states,
and with the Indian Tribes.''
57. See supra notes 26-30 and accompanying text.
58. Food & Drug Admin., About FDA, http://www.fda.gov/AboutFDA/
Transparency/Basics/ucm242648.htm (last visited July 31, 2013). U.S.
Dep't of Agric. Food Safety & Inspection Serv., Food Product Dating,
supra note 54.
59. 21 U.S.C. 301-392 (2012); 21 CFR 1.4 (2012); 21 U.S.C.
343-1 (2012); 15 U.S.C. 1451-1461 (2012); 21 CFR 10.40 (2013); 7
U.S.C. 499 (2012); 21 U.S.C. 2201-52 (2012). See also, U.S. Dep't of
Agric., Food Safety & Inspection Serv., A Guide to Federal Food
Labeling Requirements for Meat and Poultry Products 6 (2007).
60. 21 U.S.C. 451-472 (2012); 21 U.S.C. 601-695 (2012); 21
U.S.C. 1031-1056 (2012); 12 U.S.C. 1141 (2012); 7 CFR 2.79
(a)(1) (2013); 7 CFR 2.53 (2013); 9 CFR 300.2 (2013). See
Regulations & Policies: Regulations for Package Dating, U.S. Dep't of
Agric. Food Safety & Inspection Serv., http://www.fsis.usda.gov/
regulations/Regs_for_Package_Dating/index.asp (last visited Apr. 18,
2013).
61. FDA regulates shell eggs and USDA regulates processed egg
products as well as certified shell eggs under a voluntary grading
program. 21 U.S.C. 1031-1056 (2012); 21 U.S.C. 301-392 (2012).
Under the Egg Products Inspection Act, FDA and USDA share
responsibility over egg products; USDA has a primary role. 63 Fed. Reg.
27502, 27508 (May 19, 1998).
62. FDA regulates food safety practices in the production and
harvesting of raw fruits and vegetables under FSMA. 21 U.S.C. 2201-52
(2011). USDA regulates the marketing, inspection, and certification of
fresh fruits and vegetables under the Perishable Agricultural
Commodities Act of 1930 and other legislation. 7 U.S.C. 499 (2012); 7
CFR 51 (2013). See also 7 U.S.C. 1621 (2012).
63. 21 U.S.C. 331(b) (2012). See also 21 U.S.C. 343 (2012).
64. 21 U.S.C. 331(b) (2012).
65. 21 U.S.C. 331(b) (2012). A label may be deemed misleading
under the FD&CA not only if its language makes misleading
representations, but also if the label fails to reveal important
information to the consumer. 21 U.S.C. 321(n) (2012). See also 21
U.S.C. 341 (2012).
66. 21 U.S.C. 607(e) (2012); 9 CFR 317.8 (2013); 21 U.S.C.
453(h) (2012); 9 CFR 381.126(a) (2013); 7 U.S.C. 499b(4) (2012).
The Agricultural Marketing Act of 1946 gives authority to the
Agricultural Marketing Service, another agency within USDA, to regulate
labeling for eggs under the voluntary grading program for eggs. 21
U.S.C. 1036(b) (2012); 7 CFR 56.36 (2013).
67. 21 U.S.C. 463(a) (2012); 21 U.S.C. 607(c) (2012); 21 U.S.C.
1043 (2012). Under the Perishable Agricultural Commodities Act of
1930, USDA may also promulgate regulations. 7 U.S.C. 499(o) (2012).
68. 21 U.S.C. 453(h) (2012); 21 U.S.C. 607(e) (2012); 21 U.S.C.
1036(b) (2012).
69. 21 U.S.C. 457(b) (2012); 21 U.S.C. 607(c) (2012).
70. 21 U.S.C. 1031 (2012).
71. 63 Fed. Reg. 27502, 27507 (May 19, 1998).
72. 15 U.S.C. 45(1) (2012); Fed. Trade Comm'n, About the Federal
Trade Commission, http://www.ftc.gov/ftc/about.shtm (last visited
August 4, 2013).
73. 15 U.S.C. 1454(c) (2012).
74. 15 U.S.C. 1454(c) (2012); Memorandum of Understanding Between
The Federal Trade Commission and The Food and Drug Administration, MOU
225-71-8003 (1971), available at http://www.fda.gov/AboutFDA/
PartnershipsCollaborations/MemorandaofUnderstandingMOUs/DomesticMOUs/
ucm115791.htm.
75. 21 U.S.C. 331(b) (2012). See also 21 U.S.C. 343 (2012). See
also Government Accountability Office, supra note 19, at 49.
76. FDA Basics, Food and Drug Administration, http://www.fda. gov/
AboutFDA/Transparency/Basics/ucm210073.htm (last updated Apr. 13,
2012). See appendix for full law.
77. FDA's infant formula regulation requires that manufacturers set
a ``use by'' date ``on the basis of tests or other information''
showing that the formula will remain of sufficiently high quality
``under the conditions of handling, storage, preparation, and use
prescribed by label directions.'' 21 CFR 107.20 (2012).
78. Toby Milgrom Lebin, The Infant Formula Act of 1980: A Case Study
of Congressional Delegation to the Food and Drug Administration, 42
Food Drug Cosm. L.J. 101-104 (1987); House Subcomm. On Oversight and
Investigations of the Comm. On Interstate and Foreign Commerce, 96th
Cong., 2d Sess., Infant Formula: Our Children Need Better Protection 3
(Comm. Print 96-IFC 42).
79. 21 U.S.C. 350a (1980); Infant Formula Act of 1980, Pub L. No.
96-359, 94. 1190 (codified at 21 U.S.C. 350a, 301, 321 (aa), 331,
374(a) (1980)). See also Toby Milgrom Lebin, The Infant Formula Act of
1980: A Case Study of Congressional Delegation to the Food and Drug
Administration, 42 Food Drug Cosm. L.J. 101-104 (1987); House Subcomm.
On Oversight and Investigations of the Comm. On Interstate and Foreign
Commerce, 96th Cong., 2d Sess., Infant Formula: Our Children Need
Better Protection 3 (Comm. Print 96-IFC 42).
80. 21 U.S.C. 350a (1980); Infant Formula Act of 1980, Pub L. No.
96-359, 94. 1190 (codified at 21 U.S.C. 350a, 301, 321(aa), 331,
374(a) (1980)).
81. 21 CFR 107.20(c) (2013).
82. 21 CFR 107.20 (2013).
83. See U.S. Dep't of Agric. Food Safety & Inspection Serv.,
Requirements for Meat and Poultry Products, supra note 59, at 4. USDA
does explicitly require a ``pack date'' for poultry products in the
form of a closed code or a calendar date. 9 CFR 381.126 (2012). See
also Labeling Compliance Policy Guide on Poultry Food Product Dating,
U.S. Dep't of Agric., Food Safety & Inspection Serv. 2 (2010),
available at http://www.fsis.usda.gov/PDF/
labeling_guide_on_poultry_food_dating.pdf.
84. See U.S. Dep't of Agric., Agric. Mktg. Serv., Ams PY Instruction
No. 910, Shell Eggs Grading Handbook, Section 5 (2012); Agric. Mktg.
Serv., U.S. Dep't of Agric. Egg Carton Labeling (Aug. 15, 2006),
available at http://www.ams.usda.gov/AMSv1.0/
ams.fetchTemplateData.do?template=TemplateN&navID=PYEggCartonLabeling1N
av1-200&rightNav1=PYEggCartonLabeling1
Nav1-200&topNav=&leftNav=
CommodityAreas&page=PYEggCartonLabeling2&resultType=&acct=pgeninfo. For
all egg products certified by USDA, ``all cartons, overwraps, and other
types of consumer packages bearing the USDA grademark require legible
lot numbering on the consumer package'' or a ``pack date.'' Further, if
manufacturers choose to use code dating using terms such as ``use by,''
``use before,'' or ``best before'' on USDA shield eggs, the date
utilized should not exceed 45 from the day the eggs were packed.
However, eggs not packed in USDA facilities do not need to follow the
same rules, instead, ``eggs that are not packed under USDA's grading
program must be labeled and coded in accordance with egg laws in the
state where they are packed and/or sold.'' Id.
85. U.S. Dep't of Agric. Food Safety & Inspection Serv., Food
Product Dating, supra note 54.
86. See id.; 9 CFR 317.8(b)(32)(i) (2013).
87. 9 CFR 317.8(b)(32)(2) (2013).
88. Nat'l Inst. of Standards & Tech., U.S. Dep't of Commerce,
Handbook 130: Uniform Laws and Regulations in the Areas of Legal
Metrology and Engine Fuel Quality 1 (2013), available at http://
www.nist.gov/pml/wmd/pubs/upload/hb130-13-final.pdf.
89. About NCWM, Nat'l Conference on Weights & Measures, http://
www.ncwm.net/about (last visited July 3, 2013).
90. Nat'l Inst. of Standards & Tech., supra note 88, at 149.
91. Id. at 9.
92. Id. The model regulation recommends two options for
implementation--states are advised to either require mandatory open
dating or to allow voluntary open dating that must adhere to the
strictures of the model regulation.
93. Id. at 153-55.
94. Id. at 154-55.
95. See id.
96. Id.
97. Id. at 9-13.
98. Id.
99. FDA Food Code, U.S. Dep't of Health & Human Servs., Food & Drug
Admin., http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/
FoodCode/default.htm (last visited Jan.16, 2013).
100. Id.
101. Id.
102. Id. at 3-202.17, 3-203.11.
103. Id. at 3-501.17, 3-501.18.
104. Id. at 3-502.12.
105. Id. at 3-202.17, \ (A)(2).
106. Id. at 3-501.17, \ (A).
107. Id.
108. Id. at 3-202.17; Ark. Admin. Code 007.04.8-3-202.17; Cal.
Health & Safety Code 114039 (2011); 4000 Del. Admin. Code 3-202.17
(2013); Ga. Comp. R. & Regs. 40-7-1-.10 (2013); 410 Ind. Admin. Code 7-
24-156 (2013); N.J. Admin. Code 8:24-3.2 (2013); N.D. Admin. Code 33-
33-04-03.1 (2013); Okla. Admin. Code 310:257-5-15 (2013); 7 Pa. Code
46.246 (2013); 12-5 Vt. Code R. 30:5-204 (2013); 2 VA. Admin. Code
5-585-400 (2013); Wis. Admin. Code Agric. Trade & Consumer Prot.
75, App. (2013); AGR FSF 3 Wyo. Code R. 11 (2013).
109. 35A Am. Jur. 2d Food 10 (2012). U.S. Const. art 6, cl. 2.
``This Constitution, and the Laws of the United States . . . shall be
the supreme Law of the Land; and the Judges in every state shall be
bound thereby, any Thing in the Constitution or Laws of any state to
the Contrary notwithstanding.''
110. 35A Am. Jur. 2d Food 10 (2012).
111. Theodore P. Labuza & Lynn M. Szybist, Current Practices and
Regulations Regarding Open Dating of Food Products 30 (The Retail Food
Industry Ctr., Working Paper No. 01, 1999).
112. Ga. Comp. R. & Regs. 40-7-1-.02 (2013).
113. Ga. Comp. R. & Regs. 40-7-1-.02 (2013); Ga. Comp. R. & Regs. 40-
7-1-.26 ``Labeling''
114. See Inst. of Food Technologists, supra note 17., at 94.
115. The USDA Food Safety and Inspection Service reports that only
about forty percent of states require date labeling for some food
items, but our research found restrictions in more states. See U.S.
Dep't of Agric. Food Safety & Inspection Serv., Food Product Dating,
supra note 54.
116. 105 Mass. Code Regs. 520.119(F) (2013).
117. Massachusetts has adopted one of the more extreme approaches in
this regard, requiring a ``sell by'' or ``best if used by'' date for
the sale of all perishable and semi-perishable foods. 105 Mass. Code
Regs. 520.119(D) (2013).
118. Md. Code Regs. 10.15.06.10 (2013).
119. Minn. Stat. 31.783 (2013).
120. Minn. R. 1520.1900 (2013).
121. Minn. R. 4626.0200 (2013).
122. Nat'l Inst. of Standards & Tech., supra note 88, at 9-13.
123. Mich. Comp. Laws Ann. 289.8107 (2013).
124. 31-3-5 R.I. Code R. 21-33-PBP 2.00 (2013).
125. N.H. Code Admin. R. Agr 1412.04 (2013), Ga. Comp. R. & Regs. 40-
7-1.26 (2013).
126. Minn. Stat. 31.786 (2013); Ohio Rev. Code Ann. 3715.171
(2013).
127. Current as of August 2013. See appendices for qualifications of
regulations assessed in this report.
128. Current as of August 2013. See appendices for qualifications of
regulations assessed in this report. Note that the type of date after
which sale is restricted varies.
129. Alabama is unique in that it is the only state that does not
affirmatively require the presence of date labels on any foods but then
regulates such date labels once they are applied to foods and in some
cases forbids the sale of foods after those dates. See Ala. Code Ann.
20-1-27 (2013); Ala. Admin. Code r. 420-3-22.03 (2013); Ala. Admin.
Code r. 420-3-22.03 (2013).
130. Current as of August 2013. See appendices for qualifications of
regulations assessed in this report.
131. Note that states define ``perishable foods'' differently, so
this term may include some variety of the other food items listed here,
such as eggs, meat, and dairy.
132. Potentially hazardous foods are generally defined as those
foods that require time/temperature control for safety. However,
different states include various food items within their definitions of
potentially hazardous foods, so this term may include some variety of
the other food items listed here, such as eggs, meat, and dairy.
133. Baltimore, Md. Code 6-505.1 (2009).
134. Telephone interview with representative of N.Y. State Dep't. of
Agric. & Mktg. (Nov. 28, 2011).
135. Dep't of Health & Mental Hygiene, Board of Health, Notice of
Adoption of a Resolution Repealing Articles 111 and 117 of the New York
City Health Code 2 (2010), available at http://www.nyc.gov/html/doh/
downloads/pdf/notice/2010/notice-article-111-117-noa.pdf.
136. Id. at 3.
137. Id.
138. Eastern Research Grp., Inc., supra note 55, at 1-12.
139. Id.
140. See Christine Blank, Good News on Unsaleables?, Supermarket
News (July 19, 2004), http://supermarketnews.com/archive/good-news-
unsaleables.
141. Id.
142. Food Mktg. Inst., The Sustainability Opportunity for Retail and
Wholesale Executives, available at http://www.fmi.org/industry-topics/
sustainability/key-sustainability-tools-andresources/getting-started-
tools (click on ``The Sustainability Opportunities for Retail and
Wholesale Executives'') (last visited July 22, 2013) (indicating that
92% of consumers agree that it is important for the U.S. food industry
``to be more proactive about addressing environmental concerns.'')
143. Aristeidis Theotokis, et al., Effects of Expiration Date-Based
Pricing on Brand Image Perceptions, 88 J. of Retailing 72, 72 (2012)
(highlighting findings of consumer behavior studies showing that
expiration date-based pricing (EDPB) may ``generate positive consumer
evaluations when framed as a cause-related marketing activity to reduce
waste''). See also Michael Tsiros & Carrie M. Heilman, The Effect of
Expiration Dates and Perceived Risk on Purchasing Behavior in Grocery
Store Perishable Categories, 69 J. of Mktg. 114, 115-16 (2005)
(marketing study modeling ``the process by which consumers formulate
perceptions of brand quality after [] exposure to EDPB practice'').
144. Eastern Research Grp., Inc., supra note 55, at 3-6.
145. Eastern Research Grp., Inc., supra note 55, at 3-1.
146. Id. at 3-4.
147. Eastern Research Grp., Inc., supra note 55, at 3-6.
148. Id. at 3-5.
149. Eastern Research Grp., Inc., supra note 55, at 1-6.
150. Telephone Interview with Doug Rauch, former retail executive
(Dec. 3, 2012).
151. Eastern Research Grp., Inc., supra note 55, at 3-2.
152. Labuza & Szybist, Current Practices and Regulations, supranote
55, at 10.
153. Eastern Research Grp., Inc., supra note 55, at 3-2.
154. Eastern Research Grp., Inc., supra note 55, at 3-10.
155. Dan Charles, Don't Fear that Expired Food, NPR (Dec. 26, 2012),
http://www.npr.org/blogs/thesalt/2012/12/26/167819082/dont-fear-that-
expired-food (last visited July 3, 2013).
156. Eastern Research Grp., Inc., supra note 55, at 3-1.
157. Id. at 3-9.
158. Id. at 3-10.
159. Id.
160. The FDA's infant formula guidelines for testing with regard to
nutrient content represent one important exception. See 21 CFR 107.20
(2013).
161. Labuza & Szybist, Current Practices and Regulations, supra note
111, at 40.
162. Eastern Research Grp., Inc., supra note 55, at 3-13.
163. Mary Bender Brandt, et al., Ctr. for Food Safety & Applied
Nutrition, FDA, Prevalence of Food Safety, Quality, and Other Consumer
Statements on Labels of Processed, Packaged Foods, 23 Food Protection
Trends 870, 876 (2003).
164. See Blank, supra note 140.
165. Bender, supra note 163.
166. Directive 2000/13/EC of the European Parliament and the Council
on the approximation of the laws of the Member States, Art. 3 (``E.U.
Food Labeling Directive''). The Directive is implemented in Great
Britain by the Food Labelling Regulations 1996 (FLR). According to the
FLR, ``food ready for delivery to the ultimate consumer or to catering
establishments must carry an `appropriate durability indication,' '' in
the form of either a ``best before'' date or a ``use by'' date. Great
Britain Food Labelling Regulations 1996, 1996 No. 1499 (20)-(22).
167. Id. at 11.
168 Bus. Reference Panel, Better Regulation of `Use by' Date
Labelled Foods: A Business Review 6 (2011). According to the FLR, it is
an offense to sell food after the use-by date. This is unique to the
United Kingdom, and is not required in the E.U. Food Labeling
Directive.
169. See Dep't for Env't, Food & Rural Affairs, Guidance on the
Application of Date Labels to Food (Sept. 2011).
170. Id. at 14. The decision tree explains to manufacturers that ``
`best before' dates relate to food quality, including taste, texture,
aroma and appearance, whilst `use by' dates relate to food safety.''
Thus ``best before'' is appropriate for the vast majority of foods, and
`` `use by' is the required form of date mark for those foods which are
highly perishable from a microbiological point of view and which are in
consequence likely after a relatively short period to present a risk of
food poisoning.'' Id. at 6-7.
171. Id. at 7.
172. Telephone Interview with Dr. Theodore P. Labuza, Professor of
Food Science, Univ. of Minn. (Oct. 10, 2012).
173. Serri Graslie, Willing To Play The Dating Game With Your Food?
Try A Grocery Auction, NPR (Aug. 23, 2012), http://www.npr.org/blogs/
thesalt/2012/08/23/159601015/willing-to-play-the-dating-game-with-your-
food-try-a-grocery-auction. 174 Office of Tech. Assessment, supra note
15, at 21; Labuza & Szybist, Current Practices and Regulations, supra
note 15, at 20.
175. U.S. Dep't of Agric. Food Safety & Inspection Serv., Food
Product Dating, supra note 54.
176. See Eastern Research Grp., Inc., supra note 55, at 4-11.
177. Katherine M. Kosa, et al., Consumer Knowledge and Use of Open
Dates: Results of a Web-Based Survey, 70 J. of Food Protection 1213,
1218 (2007).
178. Id.
179. U.S. Dep't of Agric. Food Safety & Inspection Serv., Food
Product Dating, supra note 54.
180. Food Mktg. Inst., U.S. Grocery Shopper Trends 144 (2011).
Another study found that sixteen percent of consumers typically throw
out milk on its ``sell by'' date. Labuza & Szybist, Open Dating of
Foods, supra note 23, at 92.
181. The report was sponsored by the U.S. Department of Agriculture,
Food Safety and Inspection Service; U.S. Department of Health and Human
Services, Food and Drug Administration, and Centers for Disease Control
and Prevention; U.S. Department of Commerce, National Marine Fisheries
Service; and the U.S. Department of Defense, Veterinary Service
Activity.
182. Ransom, supra note 18, at 1763.
183. Eastern Research Grp., Inc., supra note 55, at 4-11 to -12.
184. Id. at 4-11 to -12; Kosa, et al., supra note 177, at 1218.
185. Shirley J. Van Garde & Margy J. Woodburn, Food Discard
Practices of Householders, 87 J. of the Am. Dietetic Ass'n 322, 329
(1987).
186. Office of Tech. Assessment, supra note 15, at 6.
187. U.S. Dep't of Agric., Food Safety and Inspection Serv., Food
Product Dating, supra note 54.
188. Brandt, et al., supra note 163, at 872.
189. Bus. Reference Panel, supra note 168, at 19.
190. Interview with Dr. Theodore P. Labuza supra note 172; telephone
Interview with Dr. Elliot Ryser, Professor of Food Science & Human
Nutrition, Mich. State Univ. (Nov. 1, 2012). Susceptible populations
include pregnant women, older adults, and those with chronic illnesses
such as AIDS, cancer, and diabetes. See Who's At Risk, FoodSafety.gov,
http://www.foodsafety.gov/poisoning/risk (last visited Sept. 5, 2013).
191. Bus. Reference Panel, supra note 168, at 19.
192. See Labuza & Szybist, Current Practices and Regulations, supra
note 111, at 11-15.
193. Van Garde & Woodburn, supra note 185, at 329.
194. Labuza & Szybist, Current Practices and Regulations, supra note
111, at 19-20.
195. Office of Tech. Assessment, supra note 15, at 21.
196. Bus. Reference Panel, supra note 168, at 1.
197. Kosa, et al., supra note 177, at 1218.
198. Ctr. for Food Safety & Applied Nutrition, Food & Drug Admin. &
Food Safety & Inspection Serv., U.S. Dep't of Agric., Quantitative
Assessment of Relative Risk to Public Health from Foodborne Listeria
monocytogenes Among Selected Categories of Ready-to-Eat Foods viii
(2003) [hereinafter Quantitative Assessment].
199. Id. at viii.
200. Ransom, supra note 18., at 1762.
201. Id. at 1770.
202. Id. at 1761-66.
203. The National Advisory Committee on Microbiological Criteria for
Foods defines ``Safety-Based Date Label (SBDL)'' thusly: ``Labeling
information regarding storage time to control the risk of illness from
psychotropic pathogens. An SBDL may be a day/month/year or the number
of days after purchase or opening and may include other statements such
as `keep refrigerated' or `store below 40 F.' '' Ransom, supra note 18,
at 176-63.
204. Interview with Dr. Theodore P. Labuza, supra note 172. The
National Advisory Committee on Microbiological Criteria for Foods
(NACMCF) has defined Ready-to-Eat products as ``food that is in edible
form without additional preparation to achieve food safety (such as
heating) but may receive additional preparation for palatability or
aesthetic, epicurean, gastronomic, or culinary purposes.'' Ransom,
supra note 18, at 1763.
205. Ransom, supra note 18, at 1765. Cumulatively, these outbreaks
accounted for 487 illnesses, 235 hospitalizations, and 111 fatalities.
Id. Overall, there are approximately 1,600 cases of listeriosis every
year in the U.S. Listeria: Statistics, Ctr. for Disease Control and
Prevention, http://www.cdc.gov/listeria/statistics.html (last visited
Apr. 13, 2013).
206. Ransom, supra note 18, at 1765 (2005) (noting that ready-to-eat
foods were implicated in nine outbreaks and were suspected contributors
in a number of the remaining cases; the only other suspected products
were raw vegetables, shrimp, deli meats, and hot dogs).
207. See Amit Pal, et al., Safety-Based Shelf Life Model for
Frankfurters Based on Time To Detect Listeria monocytogenes with
Initial Inoculum Below Detection Limit, 72 J. Food Protection 1878,
1882-83 (2009) (discussing the benefits of using a Time-Temperature
Integrator tag or a time-temperature data logger to account for
temperature abuse).
208. See generally U.S. Food & Drug Admin., FDA Food Code, supra
note 99.
209. See id. 3.
210. See id. 3-501.17 (requiring that potentially hazardous ready-
to-eat foods be ``clearly marked to indicate the date or day by which
the food shall be consumed on the premises, sold, or discarded'').
211. See Guidance on Labeling of Foods That Need Refrigeration by
Consumers, 62 Fed. Reg. 8248, 8251 (Feb. 24, 1997). See also
Quantitative Assessment, supra note 198, at xv (noting that
``reformulation of products to reduce their ability to support the
growth of Listeria monocytogenes or encouraging consumers to keep
refrigerator temperatures at or below 40 Fahrenheit'' are important
parallel interventions); Ransom, supra note 18, at 1772 (``[T]he impact
of temperature on the risk of listeriosis [is] significantly greater
than the impact of time.'').
212. Quantitative Assessment, supra note 198, at xii.
213. Id. at xiv.
214. Id.
215. Id. at viii.
216. Conn. Agencies Regs. 19-13-B42(m)(1)(F) (2012).
217. Listeriosis (Listeria) and Pregnancy, Centers for Disease
Control and Prevention, http://www.cdc.gov/pregnancy/infections-
listeria.html (last visited Aug. 10, 2013).
218. The need for targeted, tailored interventions is reinforced by
the complexities inherent in implementing any regulatory labeling
scheme. See Ransom, supra note 18, at 1762, 1768.
219. A similarly tailored approach can be seen in the FDA's
regulation of infant formula, which is a discrete category of products
for which specialized labeling regulations have been successfully
implemented at the Federal level. FDA mandates date labels on infant
formulate to ensure product quality--not microbial safety. See 21 CFR
107.20 (2013) (``A `Use by ___' date, the blank to be filled in with
the month and year selected by the manufacturer, packer, or distributor
of the infant formula 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).'').
220. Buzby & Hyman, supra note 7, at 561.
221. Bloom, supra note 2, at xii.
222. Id.
223. Buzby & Hyman, supra note 7, at 566. (stating that per capita
food loss is $390/year, putting the total food loss per family of four
at $1,560/year). Another study, using 2009 USDA price data, calculated
the average annual value of avoidable food loss to be $1,600 for a
family of four. Kumar Venkat, The Climate Change and Economic Impacts
of Food Waste in the United States, 2 Int. J. Food System Dynamics 431,
441 (2011).
224. Bloom, supra note 2, at 187.
225. Bloom, supra note 2, at 187; Gunders, supra note 1, at 12.
226. See Hall, et al., supra note 9, at 2.
227. See Envtl. Prot. Agency, Municipal Solid Waste Generation,
Recycling, and Disposal in the United States: Facts and Figures for
2010, at 6 (2010), available at http://www.epa.gov/osw/nonhaz/municipal/
pubs/msw_2010_rev_factsheet.pdf. 228 Wastes: Reducing Food Waste for
Businesses, Envtl. Prot. Agency, http://www.epa.gov/wastes/conserve/
foodwaste/ (last visited Apr. 18, 2013).
229. See Hall, et al., supra note 9, at 3.
230. WRAP, supra note 12, at 9.
231. Ransom, supra note 18, at 1763.
232. Van Garde & Woodburn, supra note 185, at 324-25.
233. Blank, supra note 140.
234. Raftery Resource Network, Inc., Expired Product Project,
Developed for the Joint Industry Unsaleables Steering Committee of
Grocery Manufacturers of America & Food Marketing Institute 2 (July
2003) available at http://www.gmaonline.org/downloads/research-and-
reports/expiredproducts.pdf.
235. Interview with Doug Rauch, supra note 150; Interview with Jose
Alvarez, former President and CEO of Stop & Shop/Giant-Landover,
Professor, Harvard Bus. Sch., in Allston, MA. (Nov. 9, 2012).
236. Nat'l Inst. of Standards & Tech., supra note 88, at 149.
237. Telephone Interview with Mitzi Baum, Dir. of Food Safety,
Feeding America (Mar. 28, 2013).
238. Examples include Lovin' Spoonful, http://
www.lovinspoonfulsinc.org (last visited July 3, 2013) (food rescue
organization based in Boston); Food Recovery Network, http://
www.foodrecoverynetwork.org (last visited July 3, 2013) (organization
with multiple chapters across college and university campuses in the
United States); and Second Harvest, http://secondharvest.ca (last
visited July 3, 2013) (a large-scale food recovery operation based in
Toronto).
239. See Gunders, supra note 1, at 11; Bloom, supra note 2, at 165;
see also Serri Graslie, Buying Food Past Its Sell-By Date Tough To
Swallow For Greeks, NPR (Oct. 23, 2012), http://www.npr.org/blogs/
thesalt/2012/10/23/163469018/buying-foodpast-its-sell-by-date-tough-to-
swallow-for-greeks?sc=emaf (last visited July 3, 2013) (describing
efforts by the Greek Government to encourage food stores to discount
past-date foods).
240. For example, in eastern Pennsylvania, the Amish legally operate
several stores that sell ``expired'' food at discounted prices. See
Ryan Owens, High Grocery Bills? Get Great Deals on Dated Food, ABC News
(Mar. 3, 2008), http://abcnews.go.com/Business/
story?id=4472941&page=1#.TsNA9Zz6ZWJ (last visited July 3, 2013).
241. See Graslie, supra note 173.
242. Telephone Interview with Mitzi Baum, Dir. of Food Safety, and
Wayne Melichar, Manager of Food Safety, Feeding America (Nov. 20,
2012).
243. Telephone Interview with Jonathan Bloom, author of American
Wasteland (Oct. 4, 2012).
244. Interview with Mitzi Baum, supra note 237.
245. See, e.g., Bill Emerson Good Samaritan Food Donation Act, 42
U.S.C. 1791 (1996).
246. Interview with Mitzi Baum, supra note 237.
247. See Ransom, supra note 18, at 1763.
248. Directive 2000/13/EC, supra note 166.
249. Dep't for Env't, Food & Rural Affairs, supra note 169, at 7.
250. See id.; WRAP, supra note 12, at 10 (noting that ``one study
suggests that, although `display until' dates are understood correctly
by the majority (81%), they are used by some consumers to judge food
quality (20%) and safety (6%)'').
251. Dep't for Env't, Food & Rural Affairs, supra note 169, at 7.
252. See, e.g., interview with Doug Rauch, supra note 150; Bloom,
supra note 2, at 163-67 (discussing the solution proposed by Hilary
Benn and Phil Lempert to obscure sell-by dates).
253. Food Mktg. Inst., The Sustainability Opportunity for Retail and
Wholesale Executives, Improving Supply Chain Practices for Open Dated
Products (2007), available at http://www.fmi.org/forms/store/
ProductFormPublic/search?action=1&Product_productNumber=2202.
254. Notably, USDA regulations currently allow manufacturers to
optionally include this kind of ``qualifying'' language on their date
labels. See 9 CFR 381.129 (2013); 9 CFR 317.8 (2013).
255. See, e.g., 21 CFR 101.93 (2013) (mandating disclaimer for
certain dietary supplement claims).
256. U.S. Dep't of Agric. Food Safety & Inspection Serv., Food
Product Dating, supra note 54.
257. WRAP, Freezing refrigerated food--Labelling decision tree
(2011), available at http://www.wrap.org.uk/sites/files/wrap/
Freezing%20decision%20tree.pdf.
258. FDA's infant formula regulation requires that manufacturers set
a ``use by'' date ``on the basis of tests or other information''
showing that the formula will remain of sufficiently high quality
``under the conditions of handling, storage, preparation, and use
prescribed by label directions.'' 21 CFR 107.20(c) (2013).
259. See U.S. Dep't of Agric., Recommendations of the National
Advisory Committee on Microbiological Criteria for Refrigerated Foods
19 (1990) (recommending that ``KEEP FROZEN'' and ``MUST BE KEPT
REFRIGERATED'' warnings be affixed to food packages and that they be
accompanied by a ``corresponding logo''). See generally Ransom, supra
note 18, at1761.
260. 9 CFR 317.2(l) (2013); 9 CFR 381.125(b) (2013). See also
U.S. Dep't of Agric., Kitchen Companion: Your Safe Food Handbook 10
(2008), available at http://www.fsis.usda.gov/PDF/
Kitchen_Companion.pdf. See also U.S. Dep't of Health & Human Servs.,
Food Safety, Keep Food Safe, available at http://www.foodsafety.gov/
keep/index.html (last visited, July 20, 2013).
261. Id. at 1883; interview with Dr. Theodore P. Labuza, supra note
172.
262. See Pal, et al., supra note 207, at 1883.
263. Interview with Dr. Theodore P. Labuza, supra note 172.
264. Pal, et al., supra note 207, at 1883.
265. See, e.g., Waste Watch: Food Fresh Labels, Insignia
Technologies, http://www.insigniatechnologies.com/portfolio-view/
wastewatch-food-fresh-indicators/ (last visited July 15, 2013); The UWI
Label, UWI Technologies, http://www.uwitechnology.com/pages/label.html
(last visited July 15, 2013).
266. Labuza & Szybist, Current Practices and Regulations, supra note
111, at 27.
267. In the 1970s, FDA had even asserted that it had the ability to
regulate date labels under its existing labeling jurisdiction, without
the need for additional amendments to the FD&C Act. FDA has broad
powers to regulate misbranded food, including misleading labels, under
the FD&CA. 21 U.S.C. 331(b) (2012). See also 21 U.S.C. 343 (2012).
See Gov't Accountability Office, supra note 19, at 49.
268. 21 U.S.C. 321(n) (2012). See also 21 U.S.C. 341 (2012).
269. See Nat'l Inst. of Standards & Tech., supra note 88, at 154-56.
270. Kosa, et al., supra note 177, at 1218; Ransom, supra note 18,
at 1763.
271. Van Garde & Woodburn, supra note 185, at 329.
272. See Fact Sheet: Refrigeration and Food Safety, U.S. Dep't of
Agric., http://www.fsis.usda.gov/wps/portal/fsis/topics/food-safety-
education/get-answers/food-safety-fact-sheets/safe-food-handling/
refrigeration-and-food-safety/CT_Index (last visited August 2, 2013)
(providing guidelines regarding the importance of refrigeration and
types of bacteria in refrigerated foods).
273. Van Garde & Woodburn, supra note 185, at 329.
274. See, e.g., FoodKeeper Guide, FMI, available at http://
www.fmi.org/consumer/foodkeeper (last visited July 3, 2013).
275. See, e.g., U.S. Dep't Agric., Kitchen Companion: Your Safe Food
Handbook 14 (2008), available at http://www.fsis.usda.gov/PDF/
Kitchen_Companion.pdf (outlining different ways to ensure food safety).
See also U.S. Dep't of Health & Human Servs., Food Safety, Keep Food
Safe (last visited, July 20, 2013), available at http://
www.foodsafety.gov/keep/index.html.
276. According to Federal law, infant formula must include a ``use
by'' date. However, states that further regulate this by banning or
restricting past date sales of infant formula are identified in this
appendix. 21 CFR 107.20 (2013).
277. Nat'l Inst. of Standards & Tech., U.S. Dep't of Commerce,
Handbook 130: Uniform Laws and Regulations in the Areas of Legal
Metrology and Engine Fuel Quality 13 (2013).
278. Infant formula is federally regulated and requires a ``use by''
date in all states. 21 CFR 107.20 (2013).
279. Infant formula is federally regulated and requires a ``use by''
date in all states. 21 CFR 107.20 (2013). Georgia's regulations
contain additional language restricting sales after the ``use by''
date.
The Chairman. Well, thank you, and good recovery from my
rudeness.
The chair reminds Members that they will be recognized for
questioning in order of seniority for Members who were here at
the start of the hearing. After that, Members will be
recognized in order of arrival. And I appreciate Members'
understanding. I recognize myself for 5 minutes.
Sitting here listening to you, I suddenly realized that I
was among some early adopters of this issue, not wasting food,
in the sense that as a young MP at Fort Hood, we would race
across Fort Hood with sirens blaring and red lights flashing to
get to the McDonald's at 2 o'clock in the morning to get all
the unsold Big Macs, that we would then take them back to
headquarters and pass them around to our colleagues. So early
on, I was an early adopter. In addition to growing up in a
family where nothing was wasted.
Ms. Aviv, would you talk to us a little about the struggles
or challenges, differences between rural food banks and urban
food banks in the sense of produce, how they get access to it?
We have heard how some of the small retailers in rural America
have a hard time getting produce. Can you talk to us about how
food banks in urban and rural are approaching those challenges
differently?
Ms. Aviv. The challenges facing rural food banks are
different than those of urban food banks. Just transportation
alone is probably one of the biggest challenges. Recently, I
had the opportunity, since I am relatively new to Feeding
America, to go around the country and have listening sessions,
and in the sessions that brought together most of the rural
food banks, the number one challenge that they saw, that they
faced was transportation. In fact, they asked for us to find
donations for replacement of their tires because they have to
travel such far distances.
But it is not only on the side of the distribution of the
food, it is also with regard to the people who are facing
hunger, their ability to be able to get together and come to a
central location to receive the food is also a challenge. I
don't think it is a challenge that we have solved.
Also, because most of the people facing hunger, or more of
them, are in cities and in concentrated areas, there may be an
inclination to want to go to where most of the people are, but
yet the needs in the rural communities are just as great. We
have a balance issue when there are limited resources.
The Chairman. We did have one retailer talk about the idea
of setting up centralized points within the rural communities
where they could take the donated produce there.
Ms. Stasz, you said that we have some 40 different state
rules or regulations with respect to labeling. Would you and
your team be supportive of a Federal preemption of all of those
various state rules and regulations?
Ms. Stasz. Yes, a national standard is really crucial.
Emily did a really good job of pointing out the complexity that
is existing now. As we think about if there is going to be
regulation, then Federal preemption would be really critical to
streamlining that process and reducing consumer confusion. And
we thank Ms. Pingree for all of her work on this really
important issue, and really starting the conversation.
The Chairman. Well, thank you. I do believe the statute of
limitations has run on anything I might have just confessed
too, with respect to my conduct at Fort Hood.
So with that, I will yield back. And I recognize the
Ranking Member for 5 minutes.
Mr. Peterson. Well, thank you, Mr. Chairman.
Do all of you agree that, to get to our goal here, we need
a Federal preemption on state laws? Do any of you disagree with
that? Silence.
The Chairman. It is going to be hard for the stenographers
to write that down.
Ms. Broad Leib. I am happy to agree with that. As we have
discussed, when we started looking at state laws on date
labels, we looked at a handful in New England and they were all
different, and the more we zoomed out and looked across the
country, it is very clear that they are not based on some sort
of standard safety information, so it makes sense to have one
standard that everyone can follow.
Mr. Peterson. Yes, so you would have to have a Federal
preemption in order to accomplish that.
Ms. Broad Leib. Yes.
Mr. Peterson. Right.
Ms. Broad Leib. I think so.
Mr. Peterson. I am a little bit concerned about how this
would work, because we have so many people involved in trying
to use the labeling and marketing of food, and they have the
consumers to the point where they don't know what the heck is
going on. And it just concerns me, like this GMO issue, they
are opposing preemption of that because some people think that
it is a good thing for the states to have these different laws,
which goes completely opposite of what we are talking about
here. And then you have these folks out there doing these
Dietary Guidelines, and trying to push all of that stuff, and
we have a bill that has been introduced that puts the food
police in charge of the Agriculture Committee that are pushing
all kinds of ideology, whatever it might be, it is confusing
the heck out of people. You have people labeling things
natural, and using it to create specialty stores and so forth.
And so I am just concerned that if we pass this bill that says
you are going to have two dates; one is best by, and the other
is expires on. I agree that we need to do this, and that it is
a good thing to do. If we could accomplish it, it would be
probably the best solution to addressing food waste and could
change things.
But in the bill, it says expires on is the date for, not
the quality but, the safety date. I don't think that consumers
would understand what that means. You almost have to say do not
consume after this date to get them to understand. We are
putting so much stuff on this label that, all of these labels,
that I am not sure it is going to break through, and make
sense. So I don't know what you all think about that. Do you
think I am off-base being concerned about all this?
Ms. Broad Leib. I sort of have two answers, and then I will
leave time if others want to jump in. First, in terms of this
question about the information being out there. If you go to
any store right now, even in the states that don't regulate
date labels, like New York, almost every product, particularly
in the center of the store, has a date label on it. Everything
from bottled water to vinegar to canned goods, whatever. I
think what is great about this is not taking information away.
Consumers are used to seeing those, and they want to see them,
it is just trying to make it clear so that they don't see a
million different ones.
You are right that no matter what those labels are,
education is going to be needed. The problem right now is that
because there are so many different labels, it is impossible to
educate anyone about what they mean. I have tried. I would love
to be able to say here is what you should glean from these.
And then last, the term expires on actually was in the
national survey that we did last month that I mentioned. We
checked six different label language, and expires on, 54
percent of people believe that was a safety label. That was
higher than any other one. And they were also the lowest
percentage of people that thought it was a quality indicator.
So again, 54 percent isn't a lot, but it is a start, and with
education it could be built upon that.
Mr. Peterson. Yes. Go ahead.
Ms. Stasz. Just if I may really quickly. I do think you
really hit the nail on the head in that we want to get this
right the first time. Right? We don't want to further
contribute to consumer confusion. We want to make sure that we
are testing consumers to make sure they understand what we are
trying to convey, coordinate with other labeling changes that
are coming down the line, like the Nutrition Facts Panel, and
really have industry flexibility to truncate the phrase, make
sure it fits on small packaging, in order to make sure that we
are harmonizing our standards and our language and conveying
the right information to the consumer.
Mr. Peterson. Well, I would say amen to that. And if you
have read this bill, I am concerned. I agree with the goal, but
I am concerned about the way this thing is structured, that you
are going to get these different agencies involved in this, and
by the time you are done, you are not going to recognize what
you tried to accomplish.
I have seen that with the farm bill. When I passed the farm
bill, by the time we got done with regulations, I didn't
recognize what we had passed. We have to be careful about how
we do this. I agree with what we are trying to accomplish, but
if you get too many agencies involved and allow too much
whatever, you are going to end up potentially with a worse
situation.
I yield back.
The Chairman. The gentleman yields back.
Mr. Kelly, 5 minutes.
Mr. Kelly. Thank you, Mr. Chairman and Ranking Member. And
thank you, members of the panel.
First of all, I just want to say we have a lot of food
pantries. I am from Mississippi and we have a lot of rural
areas, and our food pantries do such a great job, and so any
kind of reduction; second, I very rarely do this and she will
probably kill me, but my wife volunteers for Meals On Wheels
all the time, to take these meals to the elderly or people who
can't travel, and those things. And she never gets recognized.
We have been married for 25 years, and it seems like she is
always behind the scenes, but my wife, Sheila, just does a
great job. And we need more of that because there are a lot of
people who really want to help people and get this food in the
right hands.
As a child growing up, my mother used to go to the stale
bread store in town and would buy up the donuts and things that
we necessarily couldn't afford, or bread or other buns and
those kind of things, and then she would freeze them and we
would eat them all year. And as kids, we didn't know any
different. It was still good food. The things that most people
threw away we got to eat. So I thank you all for doing this.
And, Ms. Stasz, I think I got that right, to what extent is
the industry engaged in coordinating efforts to promote uniform
labeling?
Ms. Stasz. We are very engaged. This is a GMA and FMI board
level initiative right now. We have 25 companies who are
working on this to make sure that we really get this right the
first time. Make sure that the information that we are
conveying to consumers is accurate, and it is the right kind of
information. But this is a really important issue for us and it
is something that we are taking very seriously.
Mr. Kelly. As a follow up on that, when we create things
here, we don't always get the right results because we don't
have the baseline of knowledge that is necessary, we are not
the professionals in every area, and we have such a broad range
of things. So when you guys create the right things for
yourselves, it prevents us from doing the wrong thing. With
good hearts and good minds in trying to do the right thing, but
we sure appreciate your input.
And how do your manufacturers in your organization now work
with different date labeling laws in each state, and what
limitations does it put on you because of these laws?
Ms. Stasz. It is certainly onerous. I mean our member
companies are obviously complying with state law, but it does
tend to create a lot of unintended consequences. Ms. Aviv
really highlighted some of the confusion at the food bank
level, and there are different foods that wind up getting
thrown away unnecessarily.
There is certainly a call for, and a reason for, a national
standard that the industry is working towards to reduce
consumer confusion and prevent some of these unintended
consequences of these laws.
Mr. Kelly. And, Ms. Aviv, to what extent have potential
food donors raised liability concerns to you about a reason to
withhold donations?
Ms. Aviv. Thank you. Congressman, I think that the issue
that we see is lack of knowledge, where people new to this
space who want to help and want to contribute argue that they
can't because they won't be protected, and that it is almost a
one-by-one-by-one education, unless we can create a systematic
way to engage in this kind of work.
I was most recently at a conference organized by Ohio State
University with all of its alumni, and so on, and the alumni
sitting there talking about food insecurity, people sitting at
the front table said that they were reluctant to get involved
in this because there were liabilities. And these were people
who were leaning into this area. So I don't think we should
underestimate the degree to which there are people not engaging
because they think they are not protected.
Mr. Kelly. And the final question for Mr. Oxford. So-called
ugly fruit and vegetables in many cases have less value in the
so-called marketplace. What other opportunities, you talked
about some, but if you can just talk about what opportunities
to the industry exploring to add value to these products.
Mr. Oxford. Well, you mentioned the ugly fruit, and that
has been a growing movement across the industry, one that we
participated in, and a lot of retailers are helping to do that,
and I mentioned the food service side is getting involved with
it as well.
And one of the things you have to keep in mind on that is
how things are positioned in the stores or at the food service
level. And we believe there is great opportunity, and it is a
huge waste. From our standpoint as a grower, we hope every
fruit, stem, and leaf ends up on someone's plate. So just
trying to do anything that we can to make those products
available is what we are trying to do.
Mr. Kelly. And just a final anecdote. My dad, growing up,
he would not eat white corn. He didn't like it. And so my
mother put food coloring in it, and he said this is the best
corn I have ever had. So sometimes our price pointing and other
things make it better.
And I yield back, Mr. Chairman.
The Chairman. The gentleman yields back.
Mr. David Scott, for 5 minutes.
Mr. David Scott of Georgia. Thank you, Mr. Chairman. This
is a real, very serious problem here, and I appreciate you, Mr.
Chairman, for pulling this together.
But there seems to be two fundamental areas here that we
need to address. The first one is how do you change human
behavior. That is the big issue here. The second big one is how
do we address this issue of where the food waste starts on the
farm. And I represent Georgia, and we are the leaders in the
nation, perhaps the world, of growing blueberries. The problem
is that so much of those blueberries are left wasted, rotting
in the fields because we have failed to address the number one
issue that we here in Congress can do to address food shortage,
and that is to make sure our agriculture and our farmers, those
who are producing our crops like blueberries, have the adequate
supply of labor to be able to harvest them. So we have to do
something about that first.
The second point on that is how do we coordinate a better
relationship with that, if it is an oversupply, our farmers
would gladly, at a much reduced cost, rather than see those
crops rot in the field, get them to our food banks, like the
Atlanta Food bank, which is one of the more premiere food banks
with over 75 million pounds of food put out each year. That
takes good management resource allocation.
Now, the other one is how do you get to the real people,
because about 80 percent of the problem, if we solve it at the
first end of helping stop the food shortage of food rotting in
the fields, because they can't get the labor because we failed
to address immigration from an economic agriculture supply
labor standpoint. When we get to the changing of the human
behavior, we have to get into a coordinated partnership with
the media, with television, with radio, to be able to change
human behavior, educate the public.
Now, we did this with smoking, so it can be done. We
changed that human behavior. Many people say you are not going
to be able to change people, but there was a coordinated effort
with the leaders in the media industry to help with the kinds
of public announcements, commercials that we could.
So I would like to get your response to that. First, let's
address, am I right on this labor issue, Mr. Oxford?
Mr. Oxford. Without a doubt, one of the biggest challenges
for us as growers is not having adequate labor to harvest the
crops at times. And when we leave crops in the field, sure, we
can disk them in and use those as nutrients for the soil, but
that really means the crop is not going to its highest and best
use, which is feeding people.
Mr. David Scott of Georgia. Yes. And how about your
ability, am I right in assuming that you would be able to work
with food banks in a much better resource allocation way to be
able to get that food so it gets to the needy people, rather
than rotting in the fields?
Mr. Oxford. Absolutely. And we already do, as I mentioned
in my testimony, supply hundreds of thousands of pounds to food
banks annually ourselves, a product that doesn't meet
specifications for the customers that we have and so forth.
But, distribution is a big part of the equation that has to be
figured out. There are no silver bullets here. It has to be a
collaborative effort from all parts of the supply chain.
Mr. David Scott of Georgia. Right. And now, the reason I
mentioned the human behavior as I looked at this, clearly, 45
percent of food is wasted at the dinner table. And, Mr.
Chairman, it might be helpful if we began to address a way in
which we can coordinate some resources at the Federal level to
help get public service announcements, to get and work with
many of our partners in the media and engage them, much as the
same way we did in changing the human behavior of smoking.
Thank you, Mr. Chairman. I yield back.
The Chairman. The gentleman yields back.
Chris Gibson, 5 minutes.
Mr. Gibson. Thanks, Mr. Chairman. I appreciate this
hearing.
And I just want to come in behind Mr. Scott and concur with
his statements. And I appreciate the Chairman, I know he has
been looking at this too. We have a number of Members on the
Committee who have been concerned about ag labor, serious
issues there. I have introduced a bill on this. I certainly
don't claim that it corners the market on any ideas here. In
fact, I think perhaps at this time, maybe what we should do as
a Committee is just to have a hearing and look into it more.
And I know the Committee is looking at that, and I appreciate
that.
The second is, and I apologize, I was a few minutes late,
but I did learn from the testimony from Ms. Broad Leib, I was
interested to hear your comment, really your analysis of the
Emerson Act, which is, from what I hear from you, very helpful
in its intent, but perhaps needing some refinement, some
amendments. And I thought you were very clear in what could be
done. And I certainly would be supportive of an effort on that
score. I just want to make that comment.
And then third, and this is really the question, I am
curious for the panel, in your experiences, have you seen any
best practices as far as information is concerned, a not-for-
profit that is a clearinghouse in a community where all
restaurants and farmers can provide information about what they
have so there is sort of in a community, there is a place where
people can go and say, ``Well, here is our inventory of all the
perishables and the nonperishables, what is available.'' Has
anybody seen anything like that?
Mr. Fink. Yes, in addition to what Feeding America is doing
with their new platform, there are a few other local start-ups
that are doing it. There is a small company based in Boston
that is doing it for New England right now, that is creating a
platform that has knowledge of tractor trailers that are being
rejected at particular places, and are not going to find their
intent, and then matching those with locations that could use
that. So there are large organizations like Feeding America,
and there is a lot of innovation that is happening at the local
level as well.
Ms. Aviv. I would say that there are lots of efforts by
Feeding America to try and get to the very issue that you have
raised. Obviously, part of the challenge that we face is to
make sure that this whole food labeling issue is not an
unimportant issue, because we want to be sure that the food
that gets picked up is then put in, if it is perishable, it is
put in a refrigerated truck, is transported to a safe place, is
housed in a safe place, before it is distributed, so that even
as we are very encouraged by efforts of small groups to do the
same thing, we want to be sure that we have a safe protected
standard, because if we have stories that come out of somebody
getting food poisoning or something as a result of this, that
might be perceived by the public as the tip of the iceberg,
when, in fact, it was an isolated incident. So we have to
proceed here quite carefully.
Our effort with Starbucks that we are now going to do over
the next 5 years and hundreds and hundreds of stores, will give
us an opportunity to test this effort, because it is a small
amount of food from each store, but they are incentivizing us
through providing us with enough financial support to be able
to purchase refrigerated trucks, so that the food banks can go
by and pick that food up every single day. Multiply that by
every store in the cities, in a variety of cities that have
food left over, we have to make sure that the infrastructure,
or the people that pick it up, are picking it up and carrying
it safely to the place where it then can be distributed to
people who need food.
So it is a logistics and transportation and safety issue.
It is not a lack of will issue.
Ms. Gunders. Just to add to that, there is quite a bit of
innovation on that front. There is a startup in Chicago that
has been training Uber and Lyft drivers in safe food handling
practices, and then allowing restaurants to broadcast via text
to a number of food pantries until someone accepts it, and then
they bring it over very quickly so that it can get to people
quickly.
And I would say that there is a long tail to the food
wasting. There are big organizations and sometimes they have
large quantities, but there is also a lot of small restaurants
and such that have small quantities, but it is still worthwhile
to donate. As Mr. Fink mentioned, really encouraging the
innovation there can serve that sort of long tail.
Mr. Gibson. I thank the panelists. And my time has expired.
Thanks, Mr. Chairman.
The Chairman. The gentleman's time has expired.
Mr. Walz, 5 minutes.
Mr. Walz. Thank you, Mr. Chairman. And thank you, all of
you. This is a critically important topic. Thank you to my
colleague, Ms. Pingree, who I have had the honor and pleasure
of sharing a meal at her home over this. She takes this to
heart, and takes food as an important part of our cultural
life.
Which kind of brings me back to what Mr. Scott and Mr.
Kelly, and you are hearing it up here, are saying, I am, by
training, a cultural geographer. This is an attitude issue as
much as it is a logistics. I think these are important from
labeling and all that, you are really getting at it, but it is
interesting when you hear people up here talk, those of us of a
certain generation, there is a pride in the thriftiness around
food. I come from a family, until I was 12 years old, I thought
head cheese was really cheese that my mom was making. And when
we found out, we still ate it, but it was the idea of that
sense of waste that was probably passed on from a previous
generation where food insecurity was a real threat to them. And
you see this around the world. And so I do think getting at
that because there are some really interesting phenomena here.
We take great pride out in southern Minnesota that we feed and
clothe and fuel the world, and we have the most efficient
producers of food the world has ever seen. And so because of
that, and then working in conjunction with all of you, and, Ms.
Stasz, your organization, you have become so incredibly
efficient at delivering foods from all over the world to our
local grocery store and to our homes that it has changed that
cultural perception. Not that we have gotten lazy or whatever,
we don't have to be as thoughtful about it. And I am amazed
this week of looking at it when I go to shop for bananas, it is
a fine art because I don't want them green because I want to
eat them that night, but when I buy them yellow they are bad
the next day, almost. And it is really that supply chain along
there that we are trying to get at.
So I am curious, Mr. Scott was talking about putting things
out in the public, public awareness and all that, but, Ms.
Gunders, you did this right, and if anything I have learned
from this job, and as a school teacher too, Maslow's hierarchy
of needs, appeal to the bottom of the hierarchy first, how it
impacts their safety, their pocketbook, and things like that,
and then they will eventually self-actualize, this is the right
thing to do, it saves the planet, it saves those types of
things.
Are we getting at the heart of the things that can make a
difference at the bottom of that for people? Is the food
labeling one of those? And then maybe throw it out to each of
you for some of your points on this.
Mr. Fink, you talked about the data, which I think is
incredible what you have been able to do to gather data on
this, but it is very hard. And then maybe the last one to you,
Ms. Aviv, how do USDA food inspectors interact with food banks
and some of these on the large scale, because I have some
fantastic ones in Minnesota that do some really incredible
field-to-plate type of things?
So I know that is very broad and general, but the rest of
the country is maybe catching up where all of you are at, and
there are win-win-wins in this if we get this right. This is
one of those issues that are incredibly positive, economically,
health-wise, reducing government spending on things that all of
us want to see done.
So I will leave my last 2 minutes for you to give us some
points on that. I know it is very generalized, but we have to
get at this.
Ms. Gunders. Yes. So as I mentioned, NRDC has partnered
with the Ad Council on a campaign to try to shift the cultural
paradigm around food waste. It is absolutely correct that if I
walk down the sidewalk right now and I throw half a sandwich on
the sidewalk, people will think I am crazy because I am
littering, but if I throw it in the garbage can, people won't
quite think much of it. And that is really the paradigm that we
are trying to shift.
There was over 12 months of research that went into the
campaign, and found things like people don't know they are
wasting food. If you ask somebody if it is okay, nobody will
say yes, but nobody realizes they themselves are doing it, and
it is kind of flying under the radar. And the other thing is
that it is a byproduct of sort of peoples' good intentions. You
want to host a good dinner party, you want to feed your kids
healthy, fresh food, and there is this byproduct of waste. So
the campaign is trying to create kind of a wake up call that,
yes, this is happening, and then also create a positive message
that this is something people can get onboard to do better, and
trying to shift that culture.
And so we are trying to get at some of the motivations
behind it through really positive messaging and empowering
people to make changes in their kitchens, because a lot of it
is happening right there.
Mr. Fink. I think your question had to do a little bit
about the data and what do we do with it. The intent of ReFED
was actually to comb the data that was out there and to create
this advisory council of the 30 experts from all the different
industries and nonprofits to understand the data, and to create
a roadmap with essentially an action plan of what are all the
areas where food is being wasted, and what are the solutions,
and how can investment be made in one case to accomplish that.
And that is where we came up with the 27 solutions. And there
are investment opportunities for private investors, for
philanthropic organizations like foundations that can make
grants to Feeding America, and other nonprofits, and for
corporations to make investments in their own infrastructure.
So the first step was collecting the data and creating the
roadmap. Now, it is an opportunity for individual organizations
to figure out how they can invest in the solutions.
Mr. Gibson. Well, thank you. Maybe if we get a second
round, I will wait until my time is up to come back around. I
want to explore the economic potential that comes from this,
and how you are already doing that.
The Chairman. The gentleman's time has expired.
Mr. Moolenaar, 5 minutes.
Mr. Moolenaar. Thank you, Mr. Chairman. And I also want to
thank you all for being here.
Just this number of 40 percent is pretty staggering. And I
wonder if most people wouldn't be aware of that, and if there
was one takeaway that you wanted me to be able to communicate
back in my district from each of you, as you have been thinking
about this today, and throughout your work, what would that one
takeaway be that you would want me to be able to communicate?
Because that number is pretty staggering. And then when you
look at the supply chain aspect of it, it becomes a much more
complicated issue in terms of how to resolve. But is there one
thing that you would want me to be able to communicate in my
district? And maybe just go right down the panel.
Ms. Gunders. I think it is that this is very addressable,
and it just takes easy steps to do it. It can be overwhelming
when you think too much about it, but ultimately, if everyone
cares about this and we all think food shouldn't be wasted, it
won't be as much.
Mr. Fink. I would say that most people are not aware of how
much food they waste personally, and that this problem can be
solved starting so much by the consumer, and then the consumer
can push that to restaurants and to retailers.
Mr. Oxford. What I would say is that there is a
misperception with a lot of consumers that if the fruit or the
vegetable doesn't look just absolutely perfect in the store
when they are picking it out, then it can't be good. And that
is simply not true. And so support for and encouragement of
some of the imperfect or the unusual-looking fruits and
vegetables, that those are still very healthful products for
consumers, would be terrific.
Ms. Stasz. And I would say the number one takeaway is the
importance of measurement. Whether you are a business, whether
you are a household, a city, a state, understanding, getting
some numbers behind how much food you are wasting, you
immediately find opportunities to improve. I for one need to
stop buying grapefruits. Right? I just don't eat them. I can
understand how much money I save as soon as I track that every
week. And I think that measurement is far and away the best
practice.
Ms. Aviv. I think there are no silver bullets here. Because
we can't solve all of it, doesn't mean that we shouldn't try
and solve some of it. And one step at a time will get us all
the way there.
One of the great successes, in regard to this area, that we
think is helpful was the passage of the tax legislation that
made the donation of food by small businesses and possibly,
incentivizing them to give. So instead of that food going to
waste, now, because of this charitable tax deduction, they can
donate that. If we can educate our farmers and our small
business people in the communities about this opportunity, we
can save a heck of a lot, and that will be the first step of
many that we can take.
Ms. Broad Leib. And I would say sort of two. First, on date
labels, that for the most part, foods are really indicating
quality to you, and that hopefully you can say you are working
on trying to make them clearer. And I think the other on the
liability. I mentioned the Emerson Act is incredible. I mean it
is an enormous amount of protection, and the biggest challenge
is that businesses don't know about that. And having
Representatives from Congress say to them we have this
legislation, you are really protected, this is a priority for
us, could go miles in getting more people to feel comfortable
donating food.
Mr. Moolenaar. Thank you very much. I appreciate it.
I yield back, Mr. Chairman.
The Chairman. The gentleman yields back.
Ms. Fudge, 5 minutes.
Ms. Fudge. Thank you very much, Mr. Chairman. And thank you
all so much for being here.
Mr. Chairman, let me just take a point of personal
privilege. Today is Congressional Foster Youth Shadow Day, and
today I have a foster student with me. Her name is Regine
Jordan Wells, who was in the system for 5 years, and is now a
student at Cleveland State University. So let's welcome----
The Chairman. Will she stand up and wave at us?
Ms. Fudge. Regine.
The Chairman. There she is. Welcome. Glad you are with us.
Ms. Fudge. Thank you. And now to my questions.
First, let me again thank you all. This has been most
enlightening and very timely. Mr. Chairman, thank you for this
hearing.
Certainly, I do represent the Cities of Cleveland and
Akron, and 20 cities in between. I represent one of the poorest
districts in America, so this is extremely important to me. As
I work closely with my food banks on a fairly regular basis,
and have my staff go on a regular basis to assist and
volunteer.
So it is good, Ms. Aviv, to have you here, as I wanted to
just remind you that earlier this year, Mr. Rodney Davis, my
colleague from Illinois, and I did, in fact, request that the
Appropriations Committee provide an additional $100 million for
the cost of storing, transporting, and distributing food. We
know that refrigerated storage, we know that moving food is
very, very important to making this whole thing work, because a
lot of times if it is difficult for them to donate the food,
they won't do it. And so I just want you to be aware that we
did it, and thank you for your assistance, Feeding America's
assistance in helping us do that. And I am happy that my
colleagues have heard today how important it is to make sure
that we have the transportation and the refrigeration that we
need.
Ms. Broad Leib, we have been talking about the Emerson Act
for some time this morning, but unlike other statutes, there
has never been a Federal agency that really is over this
particular Act. Would it help if, in fact, there was some kind
of guidance by a Federal agency, would that make persons who
come under this Act feel better?
Ms. Broad Leib. I think so. One issue is really that there
is a lack of awareness, which can also be addressed by having
an agency that is really tasked with putting guidance out,
telling people about it, sharing information. And then the
other question, it is intended to be incredibly strong. If you
read it, you can get that, but as an attorney myself, I can
imagine if I were advocating on behalf of a company, looking at
it and saying there are a few terms in here that are unclear.
Apparently wholesome food, what does wholesome really mean? Is
something that is past-date wholesome or not? There are other
questions like that as well. The Act says, for example, that
food has to follow Federal, state, and local quality and
labeling standards, but some of the labeling standards are not
related to safety. So even having an agency be able to say the
allergens certainly are safety-related, that is important to be
on food when it is donated, but if the net weight is wrong,
someone who is going to get this food that is being donated, if
it says it is 3 ounces and it is really 4 ounces, or vice-
versa, that is not an issue.
So there are a bunch of places like that where having an
agency be able to provide clarity and raise awareness would go
a really long way.
Ms. Fudge. I mean I have heard on two occasions today that
there is some role for the Federal Government, and I am happy
to hear that. I am happy to understand that my colleagues would
agree that we don't want to have 40 or 50 different states with
all different rules. And second that, with the Emerson Act,
there should be some, at least, interpretive guidance as to how
it goes. So I thank you for that, and hopefully we can take
care of some of those things.
You talked about labor. I mean you kind of talk around it.
Are you talking about immigration? What are you talking about?
Mr. Oxford. Well, certainly, immigration is a part of the
discourse. And I know that is a tough issue to tackle
politically, but yes, that is a big part of it. It affects our
ability to get the products grown and harvested and to the
marketplace. And simplistically, we can probably either import
labor or import our fruits and vegetables. And that is a tough
pill to swallow sometimes, but yes, it is a big part of it.
Ms. Fudge. Thank you very much.
I yield back, Mr. Chairman.
The Chairman. The gentlelady yields back.
Mr. Yoho, 5 minutes.
Mr. Yoho. Thank you, Mr. Chairman. I appreciate you all
being here.
And today, as you brought out, Ms. Fudge, the Foster Youth
Shadow Program, we have one with us from the great State of
Florida, Ms. Samantha Rodgers. If you would raise your hand up.
She is a young lady doing great things, and congratulations for
being here and sharing with us.
Ms. Broad Leib, I wanted to hit on the Emerson Act. And you
have talked extensively about it. And, to make it further to
incentivize the tax things, and the clarification in laws, the
work that you have done with that, if there is any
recommendations that you can give us on this Committee that we
could help draft that, that would surely facilitate that,
because the incentives and the things that Ms. Aviv brought up,
the tax incentives for people to be able to go ahead and donate
those things, because we see it so often. And I grew up like
Mr. Walz. I was from Minnesota. I have five brothers; four of
them were older, and when we sat down all six of us, it was
like puppies at the dish, and if you are the last one there,
you didn't get anything. So there wasn't any food waste when we
were growing up. And then growing up, I was on food stamps for
a period of time, and we were good misers with that. And then
my mom, she taught us how you saved all your food, and at the
end of the week you had stew, and it was always really good.
So saying that, being in the agricultural sector since I
was about 15 years of age, we have seen a lot of waste. I have
worked at produce markets, I have worked at loading docks, and
then working with the farmers, we have seen the crops left in
the fields. And so any recommendations you can give as far as
things that we can do up here as far as legislation would be
great along those lines.
And then I have had a specific question here for Mr. Fink.
You mentioned consumer education as a crosscutting action to
reducing waste. Have you found any specific best practices in
educating the consumers? And what have you found is the most
effective ways to educate the consumer, not just the consumer,
I wanted to add to that awareness in the industry. I know
industry does a good job, from the grocery stores, the
restaurants, to the farmers, and to the families, and is there
any cooperation with USDA on public service announcements? Yes,
sir.
Mr. Fink. Thank you. The first question on the consumer
side, we are getting a great start with the Ad Council and
NRDC, and a few of the Congressmen mentioned ad campaigns over
the years that have changed behavior, and I believe that this
will do that. It is a start. It needs to be backed-up by
companies providing awareness at supermarkets and at
restaurants. There are chefs who are circling the Hill today
who are interested in food waste, and chefs actually can play a
role in changing peoples' behavior. So it starts with the Ad
Council, but then companies can play a role, and the government
can play a role.
I would also say on the industry side, we have personal
experience, we have a farm, and we collect leftover produce
from the local market. Every day we go and there is a new
person, and they are not doing it the same way. So employee
training is huge. It was one of the things that came out of the
ReFED was not just the consumer training, but employee
training.
Mr. Yoho. Okay, thank you.
Ms. Stasz, you brought up the grapefruit, you buy some, and
I have done that myself, we buy things that sometimes we
shouldn't. And I mean that is just up to us and it is a cost-
benefit analysis there that we have to make. Mr. Oxford, you
brought this up too, the bruised tomato, nobody wants to buy
that, but if you are in the restaurant business that is
different, you can utilize that. And it is kind of like buying
a new car, I don't want the one with the dent in it. And so,
again, if the retail market or the restaurants move to, like on
Wednesdays, it is Brunswick stew, because that is the
leftovers, and those aren't the things that are the shiniest.
Have you guys seen a difference in the handling of food
waste in the rural versus the urban areas? In the grocery
stores, restaurants.
Ms. Stasz. Yes, I will say there are some marked
differences, but overall the general bottom-line there is a
real struggle with infrastructure. So depending upon what kind
of business you are operating and where you are, urban or
rural, your infrastructure options are going to be really
different. Right? So if you are a restaurant and you have small
amounts of pickup, you are going to have to get someone to come
pick up that material really, really frequently if you are in a
city, and then it has to go a really long way away to go to a
composting facility or an anaerobic digestion facility, and you
could lose your environmental benefit by putting it on that
diesel truck.
So, for all businesses, increasing infrastructure options
to make sure we are meeting the 50 percent reduction goal is
going to be really critical.
Mr. Yoho. Okay. Thank you. I yield back.
The Chairman. The gentleman's time has expired.
Mr. McGovern, 5 minutes.
Mr. McGovern. Well, thank you all for being here. This has
been excellent testimony, and it is all common sense, and it is
all doable. It doesn't seem like it is rocket science to be
able to implement a sensible food waste policy in this country.
If I have a suggestion, we should just put you all in a room
where you write the policy and tell us to fund it, and then we
are done, because you represent the vast array of the players
that need to be at the table.
A few weeks ago, I was invited by the Amherst Cinema in
Amherst, Massachusetts, to react to a film they were showing
called Just Eat It. It was about a couple that decided to live
for 6 months on food waste. At the beginning of the film they
thought they couldn't do it, they wouldn't be able to find good
food waste to be able to live on. By the end of the film they
gained 20 pounds because it was so plentiful. And they were
able to eat relatively healthy, but they ended up eating a lot
because they uncovered so much discarded food. They went to
dumpsters in supermarkets and uncovered huge amounts of
discarded food. They went into the supermarkets to try to buy
food, like bananas that were being taken off the shelf, and
they were told by the people at the supermarket they couldn't
sell it to them. And so when they discarded them, they went
into the dumpster and got them. And they had so much food left
over, they had a banquet at the end for all their friends.
The bottom line is, we waste an enormous amount of good,
nutritious, healthy food that not only could feed hungry
people, but, quite frankly, that could be utilized in our
schools and in so many other places, and we need to fix this
problem.
And there is an environmental aspect to this too. Moving
away from landfills, going into digesters and composting and
feeding animals versus the way we are doing it with landfills.
But, I come at this issue primarily from the hunger aspect.
We have close to 50 million people in this country who are
hungry. We should all be ashamed of that. And while what we are
talking about here today is not a substitute for SNAP or WIC or
other food and nutrition programs, clearly, getting good
nutritious food to people who are struggling is really
important.
And so then we get to the infrastructure issues. I was on a
panel with a farmer who, out of the goodness of his heart,
brings his excess produce to the Food Bank of Western
Massachusetts, but he didn't get any incentives. It is hard and
he is a small farmer. I think a lot of people are faced with
this. They don't have the labor force, or they don't have the
refrigerated trucks to do the transporting of the food. And
then even at food banks, there is a limited amount of
refrigeration. You can talk about trying to get it to smaller
stores or whatever, but they have a limited amount of
refrigeration.
In TEFAP we authorized $100 million for transportation and
storage. We never funded at that. It was \1/2\ of that. So at
some point we have to figure out a way to fund this.
And, Ms. Aviv and Mr. Fink, maybe we could talk a little
bit about the infrastructure challenges, especially when it
comes to feeding the hungry in this country, and how do we
piece together the funding? How much does it cost, how do we do
this?
Ms. Aviv. Gosh, I would have to get back to you on how much
does it cost all together. We were hopeful that it would be
funded at $100 million. I couldn't tell you whether $100
million would solve the problem, but it would sure solve more
of a problem that $59 million, and simply because the need is
so great. And with 50 million people, or near 50 million people
facing hunger in the United States, we have a big problem. And
all of the food that we provide, which is well over 3.5 billion
meals, is just a small part of what we are able to provide.
The infrastructure is on two levels. It is what I mentioned
before, the one side is the refrigeration and the
transportation and being able to harvest it and to keep the
food safe. The other side of it are the people who need to
access this. In rural communities, it is much more difficult,
but within the cities it is a problem as well.
Mr. McGovern. Right.
Ms. Aviv. We also have big challenges, when we get
donations, there may be a whole lot of one item, and it may be
nutritious, but not everybody can live on carrots alone. So we
need diversity mixing centers and a variety of things that make
it possible for people to have access to all of this.
Mr. McGovern. Right.
Ms. Aviv. I think that being able to harness more of the
food that is going to waste would go a long way to solving the
problem, but it wouldn't solve the whole problem.
Mr. McGovern. Mr. Fink?
Mr. Fink. Yes, I think that the good news is there really
isn't that much capital needed on the infrastructure side in
the grand scheme for the recovery standpoint, and it is needed,
and we have all talked about a need for information technology
and infrastructure, like refrigerator trucks and refrigerators
at food banks, and places like that. In the grand scheme, that
isn't a huge amount of capital. And you just even think, when
we talk about Uber for food waste, and that is really, when you
look about it, it is sort of infrastructure light in that
perspective.
The other point you mentioned is the environmental aspect
and there is a large need for capital for composting and
anaerobic digestion.
Mr. McGovern. Yes. Yes.
Mr. Fink. And that requires a significant amount of
capital. I guess I will say that the private-sector is very
interested in participating in that capital structure.
Foundations and impact investors are very interested. So there
is the opportunity for public-private partnerships. There needs
to be some signaling from you all of what needs to be done, but
there are very willing investors on the other side.
Mr. McGovern. Thank you. Thank you.
The Chairman. Thank you. The gentleman's time has expired.
I would tell the group that we are working on getting a
screening for our members and staff of Just Eat It and we will
keep everybody posted on that so that all of us can have a
chance to take advantage of watching that experience and seeing
what we can learn from it.
Mr. McGovern. Great.
The Chairman. Mr. Crawford, 5 minutes.
Mr. Crawford. Thank you, Mr. Chairman. And I thank the
panel for being here today.
I want to switch gears a little bit. We had an awful lot of
pushback from schools, superintendents, teachers, parents,
coaches, when the National School Lunch Program rules changed
back, I think it was 2012. It was starting to being implemented
that school year. And the complaint we got from school
districts was just huge amounts of waste, where children were
just not used to the menu items and so they would essentially
turn up their nose at what they had been offered. The standards
aside, the waste was one of the biggest issues. Superintendents
are challenged by trying to take their food budget and cash
flow with general funds. Anybody given any consideration to how
you analyze food waste in schools, and what we might do to help
alleviate that problem? Anybody want to comment on that?
Ms. Broad Leib. I will say one thing briefly. I think there
is really great opportunity in schools, both in the cafeteria
and in the classroom. And a couple of people have alluded to
other places where we have made a lot of progress and social
change, and a lot of that is also things like smoking,
recycling, where we actually talked about them in schools. So
there is a really good opportunity to kind of point this out to
kids.
And then in terms of the cafeterias and the school
lunchrooms, there is still some confusion, like so many things
we talked about around liability protection, so there is
opportunity within even the Emerson Act to really clearly, with
guidance, say to schools here is how this also applies to you.
USDA is doing good work on this. They have put out some
infographics and information about opportunities to have
sharing tables and donate food, but more can be done
definitely.
Ms. Gunders. I would add that the flipside of that, the
more we can do to kind of get kids to eat their fruits and
veggies, the less waste there will be. And so the solutions are
the same. And there has been a lot of documentation of efforts
like the farm-to-table work and marketing produce to kids, and
some of those things that recipes that make the food taste
good, so it is not just sort of veggies out of the can that
look drab, or things like that. That can really help to both
address waste as well as health and fruit and vegetable
consumption. And also the ideas around share tables in schools
is very opportune because you have these kids who are taking a
full carton of milk because they have to take it, and throwing
it straight in the garbage can.
Mr. Crawford. Yes.
Ms. Gunders. And that is just a shame and a huge waste. And
there is real opportunity for guidance along with the funds
that are delivered through the school program to really direct
schools to allow for sharing of that food.
Mr. Crawford. Mr. Oxford?
Mr. Oxford. There is a new program in Texas called Brighter
Bites, and it is a unique partnership between food banks,
schools, and growers and packers, to provide 50 servings of
fresh fruit and vegetables to students in at-risk schools for
free. And this program introduces new products to children at a
very early age, while providing educational materials to their
parents on menu ideas for using them, and so forth. Ninety-
eight percent of the parents reported that their children ate
more fruits and vegetables while participating in the program,
and 74 percent were able to maintain that increased consumption
after the program ended.
So as Ms. Gunders said, trying to increase the consumption
of fruits and vegetables would be a big help.
Mr. Crawford. Yes, ma'am.
Ms. Aviv. Maybe our experience in other areas might be
helpful here. We have a program that focuses on foods to
encourage, and our experience is that, even though we might
think that there are a whole range of foods, grains, and
produce, and proteins that are healthy and good for folks to
eat, it doesn't mean necessarily that they will lean into that
if their life experience was different. And we have learned
from the work that our food banks and pantries have been doing
is that the way in which it is presented, the way in which it
is talked about, the way in which it is approached makes a big
difference. So simply putting it on the plate, if kids have
never seen it before and adults for that matter, won't get us
to where we want to go, but an education effort and
encouragement, presentation makes a big difference. It is also
true for people who walk into supermarkets, when it is
beautifully presented they lean into it and want to do it. We
need to apply it also in this area.
Mr. Crawford. Indeed. Just as an aside in the time I have
left, we actually had a hearing, this was back in my district,
and collected a lot of comments to address the School Nutrition
Program, and one of the most productive comments came from one
of the moms on the panel who suggested that these programs be
implemented on a gradual scale, that is, K-2, as opposed to K-
12, and graduate that into implementation over time so that
children grow into, as you suggest, making healthier food
choices. Do you agree with that?
Ms. Aviv. I am not an expert on whether that is the right
age group, but certainly the notion of encouraging people and
not forcing them, and making it a delightful thing to do rather
than a required thing to do, is likely to succeed. The
particular age I will leave to other experts.
Mr. Crawford. Thank you. I yield back.
The Chairman. The gentleman's time has expired.
The gentlelady from North Carolina, Ms. Adams.
Ms. Adams. Thank you, Mr. Chairman. And thank you all for
being here. It has been really great testimony.
But let me just take a moment to recognize my foster
student from Greensboro, my home, Jamie Warton. If Jamie is
here, if she will stand up.
The Chairman. Jamie, thank you for being here.
Ms. Adams. Thank you.
Next week will be the 1 year anniversary of the Adams
Hunger Initiative that I launched in the Twelfth District in
North Carolina to raise awareness of the high level of hunger
and food insecurity in the communities that I represent. North
Carolina ranks ninth in the nation, and my district, first in
the state in terms of food insecurity. So we have a serious
problem and I have been concerned about that.
But hunger is a consequence of not having a good-paying job
that earns enough food to put on the table and to raise a
family. And as some of you have mentioned today, developing
food recovery as a business model will help local farmers stay
in business, create jobs to help with the additional
transportation and distribution of donated food to those who
need it.
My first question is to the North Carolinian on the panel,
Mr. Oxford. Mr. Oxford, your testimony lays out several ways
that your company and other members of the Produce Marketing
Association are finding innovative ways to reduce food waste
and to maximize the use of leftover produce within our nation's
food system. So what support can both the public- and private-
sector provide to farmers to educate them on opportunities and
incentives to move more food products that are not destined for
market to food banks?
Mr. Oxford. Thank you, Representative Adams, and we
appreciate your support here in Washington, D.C.
We believe there is opportunity for greater education
across the board. Our experience with L&M has been very
positive in working with the Florida Association of Food Banks
and the Feeding America program, and others. And ensuring that
producers understand the options is helpful, but equally
important in reducing food waste is educating consumers. We
have already talked a little bit about some of the things, we
have talked about the need to change behavior that one of your
colleagues mentioned, and I think that is very critical if we
want to make a real difference and move the needle here.
Changing behavior in our sense is, speaking on behalf of
the Produce Marketing Association, beginning that dialogue and
trying to change behaviors starts at a young age. That is where
we learn our habits and our values, and so forth. One of the
things that the Produce Marketing Association has been involved
with, including with the Partnership for a Healthier America
and the White House as well, has been a program called Eat
Brighter, and I should mention Sesame Workshop, which has
provided their assets, their characters, for free to put on the
packaging for fresh produce.
So it is having a collaborative dialogue and getting more
people involved is critical.
Ms. Adams. Thank you.
Ms. Aviv, several universities in North Carolina operate
campus kitchens. These student-run organizations use university
facilities to turn donated food into meals for those who need
it. What Federal laws protect campus kitchens and food donors
from liability? What recommendations would you make to
encourage more farmers and food processors to donate unwanted
food products to food pantries and feeding organizations?
Ms. Aviv. Thanks for your question, and also for all of the
work that you do in this area.
As you know, the Federal Bill Emerson Good Samaritan
Liability Protection Act, which we have talked about some
today, quite a lot, makes it possible to provide protection for
people donating fit and wholesome foods to a nonprofit
organization, and it provides critical assurance of liability
protection to donors. And while there may be some ways in which
it can be strengthened, the big challenge that we face is that
too many people don't know about it, including on campuses. And
the degree to which we systematically educate people about this
is the degree to which I think that we will be able to increase
donations in a meaningful kind of a way.
Ms. Adams. Okay. Would Feeding America support being able
to use funds from the Emergency Food Assistance Program to
directly purchase leftover produce from farmers?
Ms. Aviv. That is a very complicated question because our
experience is that, in fact, the TEFAP purchases right now,
with TEFAP funds, we already do that, that is what we believe,
and that we do it at scale, and that at this point in time, for
us to change that, we are not sure that that would be the right
way to go. But that said, there is an opportunity for us to
take a look at how to do it with smaller donations, because we
do this at scale, and we would be very happy to work with you
and others to look into that.
Ms. Adams. Well, thank you. I would love to do that.
Mr. Chairman, I yield back. My time is up.
The Chairman. The gentlelady's time has expired.
Ms. Lujan Grisham, 5 minutes.
Ms. Lujan Grisham. Thank you, Mr. Chairman. And thanks
again for such a great panel, and highlighting that, we need to
do more so that individuals and families are not so food-
insecure in this country. And I make this statement at every
hearing because until it is resolved, it hurts me every day to
remind all of my colleagues and everyone who comes before this
Committee that New Mexico is still one of the hungriest states
in the country. And every single day I know there are children
in my district and in the state who are some of the hungriest
children in the entire country. And so the work that we do that
leverages, that makes sure that we are encouraging, as you do,
incredible private work, as well as our responsibility to
change a variety of systems so that people really have the
supports that they need to be food-secure, and to have all the
other necessary basic issues addressed in their lives so that
they can be successful.
And I know that this question has been asked, we are
limited in what we can really do and accomplish because for
every donation, there is an issue about getting it picked up
and storing it, and far too much money actually is needed to do
that. And, in fact, I have a bill that says, look, let's put
$100 million in so that we are not asking food banks to decide
between having food available for their families or paying for
the administrative, I am going to call it administrative, or
the other structural issues, which is storing and transporting
this food. So I know that that has been asked, what else can we
do, but maybe the thing to do is, are there any private groups
who are looking at. I hope I convince my colleagues to support
my request to put more money in, to not be borrowing or
leveraging in this way, to be very clear that we need to pay
for transporting and picking up and storing foods. I actually
have a situation in my district where we had to say no to corn
because we let it spoil, because there was no way to go get it
from the farmer who was donating it. There was no way for us to
deal with it. Are there businesses or groups who are now
looking at ways to maybe invest in the transportation and the
storing, and the folks in the Feeding America environment that
I can reach out to until we get this problem resolved, in my
state in particular, in the Southwest region?
Ms. Gunders. Well, I would say there are a number of
burgeoning businesses that are kind of addressing that problem
through a private-sector lens. So, for instance, there is a
company called Imperfect Produce that just started in
California, and in just a few months they have over 3,500
people subscribing to their produce box, that is all kind of
segments of produce. They offer it to people who qualify for
SNAP at a reduced cost. So it is already reduced because it is
imperfect, and then further reduced, and it is delivered to
their door so you don't have the access issues. They don't have
to go to a grocery store that may not be near them, et cetera.
And they are getting basically $20 worth of produce for $5,
also delivered to their door. So there are some private-sector
solutions like that that are coming as well.
Ms. Lujan Grisham. And I love that. Do you think that
private-sector solution, do you--and I will ask them directly,
so thanks for that heads-up. But, the challenges, and not that
they couldn't figure it out in my state, it sounds like I am
diminishing, but when you are not urban, it is much harder to
make those deliveries. And in a state where we have the worst
economy in the country, the folks able to really do that and
successfully manage that business model, it has been really
tricky. Do you see ways for really challenging states, rural,
food deserts, not urban populations. If you are going to
deliver a basket, you are going to drive 100 miles. Do you see
ways and strategies that are being developed with really
challenging environments like mine?
Mr. Fink. Yes. You know, and I would say----
Ms. Lujan Grisham. And I love that idea. Thank you to the
panelists.
Mr. Fink. Yes.
Earlier we talked about modifying the standards for
procurement, and especially in your state, and states nearby,
there is so much that is grown and so much that is coming in
from Mexico that is getting rejected because it doesn't meet
the absolute perfect standard. And there is a real opportunity
for less perfect fruits and vegetables being processed that
they don't have to be shipped and refrigerated, they could be
processed and then be shipped in a different form.
And so, to me, there is a huge opportunity to take a look
at all of the fruits and vegetables that either are left on the
farm or are left somewhere in the supply chain, and do some
value-added processing and then be able to turn them around
into rural communities.
Ms. Lujan Grisham. All right, I appreciate that. And I am
already out of time, but I appreciate these ideas and the
Chairman's continued patience with me. These are really
important to feeding families in my district, Mr. Chairman.
Thank you.
The Chairman. The gentlelady yields back.
I now turn to David Scott for closing comments on behalf of
the Ranking Member.
Mr. David Scott of Georgia. Yes. Well, thank you, Mr.
Chairman. As I said, this is a very, very good hearing, and we
accomplished a lot in this hearing. I hope we can take that
away. I am particularly concerned, Mr. Chairman, I hope we have
registered the point that we really have to get our farmers,
get our agribusiness community to get before this Congress and
share what is happening, and I really think because of our
failure to deal with the immigration issue, from a labor
economics issue, as it impacts food waste, which we see here,
because they can't get the labor in the fields to get the food
in the first place. And that is something we can do something
about.
And also, Mr. Chairman, as I mentioned, we need to
coordinate a whole lot better with our food banks, and have
this food wasting there when it could be beneficial to our food
banks.
So the pieces of this are right out there. We just have to
reach out and grab it.
And finally, changing that human behavior. And, Mr.
Chairman, you mentioned to me a very good thing there when you
whispered in my ear something that you all had a saying in the
Army. If we took that to some television people and radio
people, we could turn that into what, you could grab hold and
educate people. Would you share that with us?
The Chairman. Well, you are going through the mess line,
and the mess sergeant would say take what you want but eat what
you take.
Mr. David Scott of Georgia. Take what you want but eat what
you take. That could be a great commercial. That could be a
great deal. And who better to get on television to say that
than you. We say that across the country.
But seriously, Mr. Chairman, we have to change that human
behavior. And, hopefully, we have touched things on that.
I thank the panel. I appreciate your coming.
The Chairman. I too want to thank our panel. And I thank
the gentleman for his comments.
I want to thank our foster kids in the room. Thank you all
for being here today. I hope this has been instructive and not
just bored you to death. But we are talking about good stuff,
and one of the more rare bipartisan exchanges we have had
today, because I don't think we could find too many people who
are in favor of food waste. It is a rare individual who would
argue that case.
I would also like to get into the record the fact that
several of you mentioned the tax deduction and how important
that was. You gave credit in the much-maligned omnibus bill
that many of us on our side of the aisle just got beat to death
because we were supportive of it, but it was actually in the
tax bill, both of those were negotiated together, the same
thing. So I appreciate you, those of us who were criticized for
passing the omnibus bill. There were some nuggets of good
things in there.
I am also encouraged that we are trainable. Look how
quickly we adapted to sneezing into our elbows. As soon as Elmo
started doing it on Sesame Street, that blew up and we all now
do that as a matter of course.
We faced water restrictions in west Texas because of the
drought. We asked people to turn their faucets off while they
brushed their teeth. That became a habit and water use has
dropped. It didn't change anybody's lives, but it helped a
little bit at a time, every single day we went on.
I want to re-announce that at 1:30 in this space we will
have the Food Waste Fair. While we have booths manned by a lot
of folks coming around to show the good work that has been
going on, and to begin to highlight that. I do think their role
for public service announcements and other things, they help
people become more cognizant of it and just sensitive to the
idea that we don't throw things away.
One of those other sayings from my early youth that I am
haunted by though is my mother would say, ``You need to be a
member of the clean plate club.'' Well, that had mixed
messages, because today, I eat too much and I am overweight,
but as a child, my mother wasn't interested in us wasting food.
So all these kind of things that we can be better at, and I am
encouraged by that.
I thank all six of you for coming here today, sharing. Ms.
Gunders, you get the prize for coming the furthest from San
Francisco, but we do appreciate all the work that you do. It is
a collaborative work, and there are only winners in this deal.
And this is something we should be able to get our arms around
as we move forward.
Again, I thank our witnesses for being here today.
Under the rules of the Committee, the record of today's
hearing will remain open for 10 calendar days to receive
additional material and supplementary written responses from
the witnesses to any questions posed by a Member.
This hearing of the Committee on Agriculture is adjourned.
Thank you.
[Whereupon, at 11:57 a.m., the Committee was adjourned.]
[Material submitted for inclusion in the record follows:]
Submitted Letter by Robert Budway, President, Can Manufacturers
Institute
May 25, 2016
House Committee on Agriculture,
Washington, D.C.
RE: Written Testimony of the Can Manufacturers Institute for the House
Agriculture Committee Hearing On Food Waste from Field to
Table, May 25, 2016.
The Can Manufacturers Institute (CMI) appreciates this opportunity
to provide comments to the House Agriculture Committee pertaining to
the public hearing: Food Waste from Field to Table.
CMI is the national trade association of the metal can
manufacturing industry and its suppliers in the United States. The can
industry accounts for the annual domestic production of approximately
124 billion food, beverage and other metal cans; which employs more
than 20,000 people with plants in 33 states and Puerto Rico; and
generates about $13.3 billion in direct economic activity. Our members
are committed to providing safe, nutritious and refreshing canned food
and beverages to consumers.
Cans help waste less food, save families and individuals time and
money, and reduce their impact on the environment. In fact, Americans
throw away approximately 15 to 20 percent of the fresh fruits and
vegetables they purchase every year. And the amount of food waste rises
to 40 percent for All foods. Cans are a part of the solution.
Fresh fruits and vegetables are picked and canned within hours,
providing safe, nutritious, quality foods for families and individuals
to use all year long. This process not only prevents spoilage, but also
eliminates food waste as any product that isn't canned is kept on the
farm to feed the livestock and/or as fertilizer for crops. Canned food
portion sizes are also just right for both individuals and families,
and most recipes are designed around these sizes. The products packed
in cans never require refrigeration, saving significant energy for
producers, shippers, retailers and consumers.
As for food waste, in general, the canned foods purchased today are
good for at least 1 year. It's important to remember that ``best by''
or ``use by'' dates on canned food have nothing to do with food safety,
but rather food quality and when a product may pass its peak of taste.
And, the metal can itself is 100 percent recyclable and 80 to 90
percent of all steel ever produced is still in use.
CMI appreciates the opportunity to submit comments in regards to
the food waste issue. If you have any questions, please contact me at
[Redacted] or at [Redacted].
Sincerely,
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Robert Budway,
President,
Can Manufacturers Institute.
attachment
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Submitted Statement by Jay Vroom, President and Chief Executive
Officer, CropLife America
Chairman Conaway, Ranking Member Peterson, and Members of the
Committee, thank you for the opportunity to submit written testimony as
part of the Committee's hearing on food waste. I'm Jay Vroom, President
and CEO of CropLife America, the trade association representing the
crop protection industry in the U.S. I proudly come from a long line of
farmers and maintain ties with my family's farm in Illinois.
The problem of food waste is astronomic: the United Nations Food
and Agricultural Organization estimates that saving just \1/4\ of the
food currently lost or wasted worldwide would be enough to feed 870
million hungry people.\1\ This past September, the U.S. Department of
Agriculture and the Environmental Protection Agency (EPA) announced our
country's first-ever national food waste reduction goal, calling for a
50 percent reduction by 2030.\2\ Reducing this much waste will take
engagement from stakeholders across the food production system,
including growers.
---------------------------------------------------------------------------
\1\ Food and Agricultural Organization of the United Nations. SAVE
FOOD: Global Initiative on Food Loss and Waste Reduction: Key facts on
food loss and waste you should know!
(http://www.fao.org/save-food/resources/keyfindings/en/).
\2\ U.S. Department of Agriculture. News Release: USDA and EPA Join
with Private Sector, Charitable Organizations to Set Nation's First
Food Waste Reduction Goals. (http://www.usda.gov/wps/portal/usda/
usdahome?contentid=2015/09/0257.xml&navid=NEWS_
RELEASE&navtype=RT&parentnav=LATEST_RELEASES&edeployment_action=retrieve
content) September 16, 2015.
---------------------------------------------------------------------------
As you examine where waste occurs, I encourage you to look at the
farm level, listen to the growers and their needs, and consider the
importance of crop protection products and biotechnology tools in
decreasing food waste. Waste can be prevented starting from the field
and continuing all the way to the consumer's home. An all-too-common
occurrence throughout the food waste dialogue is the absence of the
farmer's voice. As we build and improve systems that reduce food waste,
it is imperative that we hear from growers and support their efforts to
reduce food and crop loss. Growers are the ideal sources of information
regarding what tools they need to fight threats to their crops and
reduce food waste.
Globally, annual food loss and waste stands at: 30% for cereals;
40-50% for root crops, fruits and vegetables; 20% for oil seeds, meat
and dairy; and 35% for fish.\3\ Notably, most food waste estimates do
not include the amount of potential food loss, or crop loss, from
produce that has not yet been harvested. For example, in a 2006 study,
scientists from the Institute for Plant Diseases in Bonn, Germany
estimated that pests alone could potentially cause the loss of \1/2\ of
the world's wheat crops.\4\
---------------------------------------------------------------------------
\3\ UN FAO, Key facts on food loss and waste you should know!
(http://www.fao.org/save-food/resources/keyfindings/en/).
\4\ Institute for Plant Diseases, Rheinische Friedrich-Wilhelms-
Universitaet Bonn. Crop losses to pests. (http://
journals.cambridge.org/action/
displayAbstract?fromPage=online&aid=431724&
fileId=S0021859605005708) The Journal of Agricultural Science, Volume
144, Issue 01. February 2006, pp. 31-43.
---------------------------------------------------------------------------
From the beginning of the growing process, farmers deal with crop
loss due to a multitude of factors, including weeds and other pests.
After crops are harvested, in both storage and in transport to grocery
stores or production facilities, mold and rot can damage and degrade
food, decreasing the length of its shelf life. Mold and rot continue to
threaten food until it is finally preserved or consumed, making it all
the more important for farmers to grow fruits and vegetables that are
as robust as possible. Thankfully, farmers and others in the food
production chain are successfully managing many of these threats
through the use of modern agricultural technologies. And that fact
means that were it not for farmers and the science-based technologies
that they use, food waste today could be even worse than it is!
The crop protection industry's mission is to reduce food waste and
crop loss starting from the first planting of a seed. Both conventional
and organic growers use crop protection products to prevent insects,
disease, mold and fungus from destroying food in the field, in storage,
and in transport to grocery stores. Crop protection products and other
technological advancements including biotechnology also help prevent
food loss during the processing and packaging stages of food
production. Additional technologies in the commercial development
pipeline will further help farmers reduce food loss beyond the farm,
such as the development of more robust root systems that resist
drought, and soil health research.
When examining the issue of food waste, we also must consider the
resources used to produce food, including water, land, energy, labor
and capital. This past March, National Geographic reported that,
``Globally, a year's production of uneaten food guzzles as much water
as the entire annual flow of the Volga, Europe's most voluminous
river.'' \5\ On the farm, many of our nation's highly advanced
agricultural methods have led to increased efficiency, preventing
resource waste. Precision agriculture technologies allow growers to use
inputs and resources more effectively, increasing productivity in an
eco-conscious way.
---------------------------------------------------------------------------
\5\ Royte, Elizabeth. National Geographic. ``How `Ugly' Fruits and
Vegetables Can Help Solve World Hunger.'' March 2016. http://
www.nationalgeographic.com/magazine/2016/03/global-food-waste-
statistics/.
---------------------------------------------------------------------------
Today, we ask you to ensure our nation's growers continue to have
access to vital and necessary crop protection products. They are
elemental to preventing crop loss and reducing further resource waste
throughout the food production system. We are concerned that recent
steps taken by the EPA, in regards to efforts to change pesticide
policy abruptly, are in reaction to misinformed political activism and
are not based in sound science. It is of the utmost importance that
regulatory decisions balance risks and benefits using solid data.
The successful reduction of food and crop loss, and therefore
resource waste, in agriculture requires commitment from all
stakeholders in the food production system. The pesticide industry
continues to work on solutions to help farmers prevent loss and use
resources more efficiently and sustainably. By doing our part at the
beginning of the food production chain, along with farmers, we can
increase the likelihood that nutritious food reaches your family's
kitchen table.
We are now starting up a project at CropLife Foundation to do more
research on the role of modern technologies in reducing food waste--and
also to help advance innovation that will bring even more solutions. On
behalf of CropLife America and our member companies, I'd like to thank
you for giving your time and attention to the serious issue of food
waste. We look forward to working collaboratively to address this
issue.
______
Submitted Question
Response from Emily M. Broad Leib, J.D., Assistant Clinical Professor
of Law and Director, Food Law and Policy Clinic, Harvard Law
School
Question Submitted by Hon. Ted S. Yoho, a Representative in Congress
from Florida
Question. The EPA food recovery hierarchy shows a continuum of
preferred efficiency in food production. In the meat sector, we use
advanced meat recovery techniques to ensure we capture the greatest
amount of protein possible which might otherwise end up in rendering, a
use much farther down on the EPA's hierarchy. How important is it to be
efficient in the manufacturing link of the food chain with technologies
such as advanced meat recovery?
Answer. Dear Representative Yoho,
Thank you for your interest in reducing food waste and recovering
more food along the supply chain, and thank you for your question. I am
not personally knowledgeable about meat recovery techniques, but agree
that we should make sure to follow the EPA Food Recovery Hierarchy when
making decisions about where to invest so that we keep food at the
highest level on the hierarchy. Methods like Advanced Meat Recovery
Systems, if done safely and in accordance with FSIS Directive 7160.3,
is a promising place for investment of resources. Investments can and
should be made to find similar areas that could also reduce loss in
food trimming or processing of other food products.
Best,
Emily Broad Leib.
[all]