U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

20–309 PDF 2016

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

(

Printed for the use of the Committee on Agriculture 

agriculture.house.gov 

COMMITTEE ON AGRICULTURE 

K. MICHAEL CONAWAY, Texas, Chairman 

RANDY NEUGEBAUER, Texas, 

Vice Chairman 

BOB GOODLATTE, Virginia 

FRANK D. LUCAS, Oklahoma 

STEVE KING, Iowa 

MIKE ROGERS, Alabama 

GLENN THOMPSON, Pennsylvania 

BOB GIBBS, Ohio 

AUSTIN SCOTT, Georgia 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

SCOTT DESJARLAIS, Tennessee 

CHRISTOPHER P. GIBSON, New York 

VICKY HARTZLER, Missouri 

DAN BENISHEK, Michigan 

JEFF DENHAM, California 

DOUG LAMALFA, California 

RODNEY DAVIS, Illinois 

TED S. YOHO, Florida 

JACKIE WALORSKI, Indiana 

RICK W. ALLEN, Georgia 

MIKE BOST, Illinois 

DAVID ROUZER, North Carolina 

RALPH LEE ABRAHAM, Louisiana 

JOHN R. MOOLENAAR, Michigan 

DAN NEWHOUSE, Washington 

TRENT KELLY, Mississippi 

COLLIN C. PETERSON, Minnesota, Ranking 

Minority Member 

DAVID SCOTT, Georgia 

JIM COSTA, California 

TIMOTHY J. WALZ, Minnesota 

MARCIA L. FUDGE, Ohio 

JAMES P. MCGOVERN, Massachusetts 

SUZAN K. DELBENE, Washington 

FILEMON VELA, Texas 

MICHELLE LUJAN GRISHAM, New Mexico 

ANN M. KUSTER, New Hampshire 

RICHARD M. NOLAN, Minnesota 

CHERI BUSTOS, Illinois 

SEAN PATRICK MALONEY, New York 

ANN KIRKPATRICK, Arizona 

PETE AGUILAR, California 

STACEY E. PLASKETT, Virgin Islands 

ALMA S. ADAMS, North Carolina 

GWEN GRAHAM, Florida 

BRAD ASHFORD, Nebraska 

SCOTT C. GRAVES, Staff Director 

ROBERT L. LAREW, Minority Staff Director 

(II) 

(III)

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

(1)

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 

2

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 commuVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 P:\DOCS\114-52\20309.TXT BRIAN
3

nity 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 

4

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.2The 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)]. 

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) 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

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. 

5

3See 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). 4For 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. 

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). 

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 crimiVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN
6

5See Medtronic, Inc., 518 U.S. at 485 [116 S. Ct. at 2250]; Rice, 331 U.S. at 230.

nal 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. 

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. 

7

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. 

8

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 

9

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 commonsense 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. 

10

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 

11

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 foodinsecure 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. 

12

1K.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. 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. 

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

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

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 

13

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. 6 ReFED, ‘‘A Roadmap to Reduce U.S. Food Waste by 20 Percent.’’ March 2016. 

www.refed.com. 7 United Nations Food and Agriculture Organization, ‘‘Food Wastage Footprint: Impacts on 

Natural Resources’’ 2013. http://www.fao.org/docrep/018/i3347e/i3347e.pdf. 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. 9Lipinski, 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. 10K.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. 

entire diet for the 48 million food-insecure Americans, if only it could be distributed 

properly.5

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

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. 

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

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. 

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. 

14

11D.C. Love, et al. ‘‘Wasted Seafood in the United States: From Net to Plate’’. Global Environmental Change 35 (2015) 116–124. 

* 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. 12 Claire Cummings, Bon Appetit Management Company (Compass Subsidiary), e-mail correspondence, January 20, 2016.

Figure 1: EPA’s Food Recovery Hierarch

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

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. 

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


11452001.eps
15

13SeaShare website, About page: https://www.seashare.org/about. 14 Andrew Shakman, CEO, LeanPath, e-mail correspondence, May 21, 2016. 15 Anna Vinogradova, Senior Manager of Sustainability, Wal-Mart, e-mail correspondence, 

March 17, 2016. 16WRAP UK, ‘‘Household Food and Drink in the UK 2012’’ http://www.wrap.org.uk/content/

household-food-and-drink-waste-uk-2012. 17Parry, Andrew, ‘‘Reduction in household food & drink waste—Estimating the influence of 

WRAP and its partners.’’ 2011. 

• 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

• 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

• 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

• 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

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 indiVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN
16

18Food Marketing Institute, ‘‘U.S. Grocery Shoppers Trends 2014’’, p. 135. 

viduals 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. 

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. 

17

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 ecoVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 P:\DOCS\114-52\20309.TXT BRIAN
18

nomic 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 publicprivate 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:]

19

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 multistakeholder 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 publicprivate 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 

20

* 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. 

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/. 

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, 

21

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,

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:


11452002.eps
22

* 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.

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.

Manufacturers: Reduce inefficiencies in manufacturing processes while collaborating with retailers on Packaging Adjustments and Standardized 

Date Labeling.

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.

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.


11452003.eps 11452004.eps 11452005.eps 11452006.eps 11452007.eps
23

Federal Government: Create jobs and alleviate hunger by retaining and expanding food Donation Tax Incentives, and consider national Standardized Date Labeling legislation.

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.

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.

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.


11452008.eps 11452009.eps 11452010.eps 11452011.eps
24

Food Waste Solutions 

Type Category Priority Food Waste Solutions 

Prevention 1. Packaging, Product, and Portions • Standardized Date Labeling 

• Produce Specifications (Imperfect Produce) 

• Packaging Adjustments 

• Spoilage Prevention Packaging 

• Smaller Plates 

• Trayless Dining 

2. Operational and Supply Chain Efficiency • Waste Tracking & 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 Infrastructure • Donation 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 Processing • In-Vessel 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. 

25

Marginal Food Waste Abatement Cost Curve

* 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)

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.


11452012.eps 11452013.eps
26

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.

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.

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.

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 


11452014.eps 11452015.eps 11452016.eps 11452017.eps
27

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:

28

• 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 highrisk 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


11452018.eps
29

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 emVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN
30

ployee 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.

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. 

31

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 

32

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.

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.

Farmers≥Seek 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.

Manufacturers≥Expand 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.

Restaurants & Foodservice≥Save 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 allyou-can-eat facilities


11452019.eps 11452020.eps 11452021.eps 11452022.eps
33

Grocery Retailers≥Increase 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.

Federal Government≥Cost-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).

State And Local Governments≥Pursue 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.

Foundations≥Provide 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

Investors≥Generate 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. 


11452023.eps 11452024.eps 11452025.eps 11452026.eps 11452027.eps
34

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 

35

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 

36

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 

37

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. 

38

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-aferdman) January 13, 2016

(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 oncestruggling carrot industry, but they also helped both curb waste on the farm and 

sell the Vitamin A-filled vegetables at the supermarkets. 


11452051.eps
39

* Editor’s note: the video has been retained in Committee files. 

How Different Fruits and Vegetables Used To Be

http://www.washingtonpost.com/video/c/embed/3ab3e70c-1c3d-11e6-

82c2-a7dcb313287d.* 

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 SunTimes. ‘‘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. 


11452052.eps
40

The Baby Carrot Boom 

Per Capita Consumption of Carrots in the 12 Years After the Baby Carrot Was Invented

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 bitesized 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-ceoof-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.’’


11452053.eps
41

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. 

42

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:]

43

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 reVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN
44

cent 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

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. 


11452028.eps
45

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! 

46

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.

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. 


11452029.eps
47

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. 

48

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. 

49

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 

50

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. 2 Jensen, A., Rabbitt, M., Gregory, C., Singh, A. Household Food Insecurity in the United 

States in 2014. USDA Economic Research Service, September 2015. 3Map the Meal Gap looks at food insecurity by county across America and the amount of 

meals missing from food-insecure Americans households. 

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. 

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. 

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. 

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 

51

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.

7Weinfield, N.S., Mills, G., Borger, C., Geaing, M., Macaluso, T., Montaquila, J., Zedlewski, 

S. (2014) Hunger In America 2014.

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

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. 

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. 

52

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. 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. 

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

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

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 poVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN
53

tential 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. 

54

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 WalVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 P:\DOCS\114-52\20309.TXT BRIAN
55

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:]

56

1Mark 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. 4Kevin 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. 5The Food Recovery Hierarchy, U.S. Envtl. Prot. Agency, https://www.epa.gov/sustainablemanagement-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. 7 ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 12 (2016), http://

www.refed.com/downloads/ReFED_Report_2016.pdf. 

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. 

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. 

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. 

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 

57

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. 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). 11See, 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). 

‘‘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. 

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

Figure 1: State Requiring Date Labels on At Least Some Food Products 

States Requiring Date Labels on At Least Some Food Products


11452030.eps
58

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. 14See, e.g., 105 Mass. Code Regs. 520.119(f) (2016); Or. Rev. Stat. § 616.825 (2016). 15Mont. Admin. R. 32.8.202 (2016). 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. 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_May2016.pdf. 

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

Figure 2: States Regulating Food Sales Past some Label Dates 

States Regulating Food Sales Past Some Label Dates

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 qualitybased methods to determine these dates, including consumer taste tests, literature 

values, product turnover rates, or consumer complaints.16

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 


11452031.eps
59

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_May2016.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.). 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). 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. 24Directive 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. 

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. 

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-toeat 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. 

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. 

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. 

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. 

60

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. 28 H.R. 2029, 114th Cong. § 113(a) (2015) (to be codified at I.R.C. § 170(e)(3)(C)). 29Food 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. 30Food 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. 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). 35See, 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. 

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. 

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. 

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. 

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

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 

61

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). 39Food 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. 40 ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33 (2016), http://

www.refed.com/downloads/ReFED_Report_2016.pdf. 41 About the Conference, Conference for Food Protection, http://www.foodprotect.org/about/

(last visited Apr. 26, 2016). 42FDA 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). 

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. 

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. 

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. 

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. 

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 

62

43Food Recovery Committee, Conference for Food Protection, Comprehensive Guidelines for 

Food Recovery Programs 6 (2000), http://www.foodprotect.org/media/guide/food-recoveryfinal2007.pdf. 44Food Recovery Committee, Conference for Food Protection, Comprehensive Guidelines for 

Food Recovery Programs 6 (2000), http://www.foodprotect.org/media/guide/food-recoveryfinal2007.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. 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), 49See, 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/. 50Serri 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). 

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. 

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

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. 

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 

63

51 ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33 (2016), http://

www.refed.com/downloads/ReFED_Report_2016.pdf. 52 42 U.S.C.A. § 1791(b)(3) (West 2016). 53Mass. Gen. Laws ANN. 94 § 328 (West 2016). 54Or. Rev. Stat. Ann. § 30.890 (West 2016). 55 42 U.S.C.A. § 1791(c)(1) (West 2015). 56 I.R.C. § 170(e)(3)(A)(ii) (2016). 57Feeding America, Food Banks: Hunger’s New Staple: Preliminary Findings 3 (2011),

http://feedingamerica.org/hunger-in-america/hunger-studies/∼/media/hunger-new-staple-execsumm.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. 

have the potential to divert 167,000 tons of food waste per year and provide $36.4 

million per year in economic value.51

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. 

The Emerson Act was enacted to encourage food donations; however, the ‘‘nocharge’’ 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. 

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. 

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 

64

59 ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33 (2016), http://

www.refed.com/downloads/ReFED_Report_2016.pdf. 60Dana Gunders, Nat. Res. Def. Council, Wasted: How America Is Losing Up to 40% of Its 

Food from Farm to Fork to Landfill 8 (2012). 61See, 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). 62See, 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 aver- age $12,000 annually for packing costs). 63Telephone 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). 64See, 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). 65 I.R.C. § 170(e)(3)(B) (2015). 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)). 

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. 

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. 

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

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

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 

65

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. 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. 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. 

the enhanced tax deduction over time to determine if further changes need to be 

made to encourage food donations. 

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.) 

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. 

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 

66

76Dana Gunders, Natural Resources Def. Council, Wasted: How America is Losing Up to 40% 

of its Food From Farm to Fork to Landfill 4 (2012). 

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. 

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. 

67

84% of Consumers At Least Occasionally Discard Food Close To Or Past the 

Date on Its Package

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

One-third of consumers wrongly think that date labels are federally regulated.


11452032.eps 11452033.eps
68

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

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?


11452034.eps 11452035.eps
69

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-labelsand-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

70

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, 


11452036.eps
71

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.

72

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 


11452037.eps
73

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 safety-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 particular meaning across the country and across products; (2) be unambiguous

in the information they convey; and (3) clearly delineate between safetybased and quality-based dates.

» Include ‘‘freeze by’’ dates and freezing information where applicable: 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 extend shelf life.

» Remove or replace quality-based dates on nonperishable, shelf-stable products: Removing ‘‘best before’’ or other quality dates from shelf-stable, 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 useful, 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., ‘‘Maximum 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 information on packages, perhaps through the use of a standard ‘‘safe handling’’ information box, akin to the Nutrition Facts panel.

» 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.


11452038.eps
74

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 standardized, easily understandable consumer-facing dating system; and providing 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 handling.

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

75

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 

76

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 

77

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.

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


11452039.eps
78

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.

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 deVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00082 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN

11452040.eps 11452041.eps
79

ceptive 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. 

80

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 **

* 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 


11452042.eps
81

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

82

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, 

83

‘‘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


11452043.eps
84

Figure 3: States Regulating Food Sales Past Some Label Dates 128–129

Figure 4: States Regulating Date Labeling 130

State Perishable 

Foods 131

Potentially 

Hazardous 

Foods 132

Milk/Dairy Meat/

Poultry Shellfish Eggs Other 

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 


11452044.eps
85

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 prewrapped 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


11452045.eps
86

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 conVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00090 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN
87

sidered 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

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 shelflife 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 shelflife 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, 


11452046.eps
88

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

* ‘‘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.’’


11452047.eps
89

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

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 condiVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00093 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN

11452048.eps
90

tions, 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 bacVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00094 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN
91

terium 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 safetybased ‘‘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

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 readyto-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 readyto-eat category. 


11452049.eps
92

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 facilities . . . 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 

93

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 endusers 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.

94

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 safetybased 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.


11452050.eps
95

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 

96

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 reVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00100 Fmt 6633 Sfmt 6621 P:\DOCS\114-52\20309.TXT BRIAN
97

sources 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.

98

• 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.

99

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).

100

(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, 

101

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).

102

(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 . . .

103

APPENDIX B: STATE REQUIREMENTS IN BRIEF; SUPPORTING CHARTS FOR FIGURES 2 AND 3

Supporting Chart for Figure 2

State No Requirement Date Labels Required Foods for Which Date Is Required State No Requirement Date Labels Required Foods for Which Date Is Required 

Alabama Alaska 

X 

X Shellfish 

Nevada X Milk; potentially hazardous 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; prepackaged sandwiches Oklahoma X Eggs; shellfish Hawaii Idaho X 

X Milk Oregon X Packaged perishable foods 

Illinois X Pennsylvania X Milk/dairy; shellfish Indiana Iowa 

X X 

Eggs; shellfish Eggs 

Rhode Island X Packaged bakery products; 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-perishable foods Vermont X Shellfish Michigan X Pre-packaged perishable foods; milk/dairy Virginia X Dairy; shellfish Minnesota X Eggs; perishable foods; shellfish Washington X Packaged perishable foods 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

State No Regulation 

Past-Date 

Sales

Regulated 

Foods For Which Sale After Date Is Restricted State No Regulation 

Past-Date 

Sales

Regulated 

Foods For Which Sale After Date Is Restricted 

Alabama Alaska X 

X Meat, Class A foods (baby food, infant formula, potentially 

hazardous foods) 

Nevada X 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, shellfish, milk, potentially hazardous foods, pre-packaged sandwiches Oklahoma X Hawaii Idaho 

X X 

Oregon X Packaged perishable foods 

Illinois X Eggs Pennsylvania X Milk Indiana Iowa 

X X 

Rhode Island X Packaged bakery products 

Kansas X South Carolina X Kentucky X Milk/milk products South Dakota X Louisiana X Tennessee X Maine X Texas X 

104

Supporting Chart for Figure 3—Continued

State No Regulation 

Past-Date 

Sales

Regulated 

Foods For Which Sale After Date Is Restricted State No Regulation 

Past-Date 

Sales

Regulated 

Foods For Which Sale After Date Is Restricted 

Maryland X Milk Utah X Massachusetts X All food products (special focus on perishable and semiperishable foods) Vermont X Michigan X Pre-packaged perishable foods, meat, milk/dairy Virginia X 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. 

105

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 mean food is not intended to be used or sold 

after the date limit, or that food quality is best before the date limit, and includes but is 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. 

Ala. Admin. Code r. 420–3–

22.01 (2013). 

Definition (open-date statement) (14) Open-date statement. Terms ‘‘Sell By’’; ‘‘Freeze By’’; ‘‘Sell or Freeze By’’; ‘‘Not to be Sold After’’; ‘‘Best 

if Used By’’; ‘‘Expiration’’; or other terms as defined by rules or regulations; or a date without additional words shall be considered an open-date statement 

Ala. Code § 20–1–20 (2013). 

Additional descriptive terms (open-date statement) (1) In addition to the terms listed in § 20–1–20 (definitions) for (14) open date statements, the following 

list of terms and other terms with similar import, shall also be included and considered as open date statements: 

Ala. Admin. Code r. 80–1–

22–.33 (2013). 

(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 permitted No person shall engage in any of the following activities within this state: . . . Ala. Code § 20–1–27 (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). 

106

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

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 hazardous food. Ala. Code § 20–1–20 (2013). 

Date labeling not required Date labeling not required for Class A food products in Alabama (with the exception of infant formula, 

which is federally regulated).1

No relevant state law. 

Sale after date not permitted No person shall engage in any of the following activities within this state: . . . (2) Sell or offer for sale 

out-of-date Class A foods which include baby food, infant formula, and potentially hazardous food. 

Ala. Code § 20–1–27 (2013). 

Alteration of date labels not permitted (potentially hazardous foods) (1) Packages of potentially hazardous foods bearing an open date statement are not to be repacked or re- labeled or otherwise altered in a manner that would change the open date statement originally placed 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. 

Ala. Admin. Code r. 80–1–

22–.36 (2013). 

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 ready-to-eat meat product after the expiration 

of the open-date statement. It is not permissible to freeze, sell, or offer for sale a 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. 

Ala. Admin. Code r. 80–1–

22–.36 (2013). 

Sale after date not permitted—exemptions (3) Any rule in this chapter to the contrary not withstanding, meat products bearing an open-date statement may be frozen and sold after the original expiration date only if all the following stipulations are met: Ala. Admin. Code r. 80–1– 22–.36 (2013).

(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.

107

Alaska

Shellfish Date labeling required (c) In addition to meeting the requirements of (a) and (b) of this section, the operator of a food establishment shall obtain . . . (6) molluscan shellfish that are . . . packaged and identified as follows: Alaska Admin. Code tit. 18, 

§ 31.200 (2013).

(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.

Arizona

Eggs Definition (Expiration date) 13. ‘‘Expiration date’’ means the words ‘‘sell by’’ or ‘‘buy thru’’ followed by a date, including the month and 

day, that is not more than twenty-four days after the eggs were candled and that includes the date the eggs were candled. 

Ariz. Rev. Stat. Ann. § 3–

701 (2013). 

Date labeling required E. Cases, half cases, cartons or containers marked grade AA or grade A shall be marked with an expiration date. 

F. The expiration date marked on a case, half case or container 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. 

Ariz. Rev. Stat. Ann. § 3–

719 (2013). 

Sale after date not restricted Not restricted for eggs in Arizona. No relevant state law.

Arkansas *

Shellfish Date labeling required (A) Raw SHUCKED SHELLFISH shall be obtained in nonreturnable packages which bear a legible label 

that identifies the: . . . (2) The ‘‘sell by’’ or ‘‘best used by’’ date for packages with a capacity 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 

Ark. Code Ann. § 007–04–8 

3–202.17 (2013). 

Sale after date not restricted Not restricted for shellfish in Arkansas. No relevant state law.

California

Milk/Dairy Date labeling required (a) At the time of sale to the consumer . . . there shall appear upon the package or container of such 

product the date established by the processor as the date upon which, in order to insure quality, such product is normally removed from the shelf 

Cal. Food & Agric. Code 

§ 36004 (2013). 

Date labeling required (scope of law) (a) Except as otherwise provided in Food and Agricultural Code Section 36004(c), the licensed milk products plant which bottles or packages the following products shall be responsible for affixing the 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. 

Cal. Code Regs. tit. III, 

§ 627 (2013). 

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 packages that bear a legible label that identifies . . . a ‘‘sell by’’ date or a ‘‘best if used by’’ date for packages with a capacity of less than 1⁄2 gallon, or 

the date shucked for packages with a capacity of 1⁄2 gallon or more. 

Cal. Health & Safety Code 

§ 114039 (2013). 

108

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

Sale after date not restricted Not restricted for shellfish in California. No relevant state law.

Colorado

General Alteration of date labels not permitted A. When voluntary code date information appears on a retail food establishment or manufacturers’ label, 

it shall not be concealed or altered. 

6 Colo. Code Regs. § 1010–

2:3–701 (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 (formatting specified if 

used) 

3.3 SELL-BY DATE REQUIREMENTS 8 Colo. Code Regs. § 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 restaurant more than 45 days after the 

pack date. 

8 Colo. Code Regs. § 1202–

10:4.0 (2013).

Connecticut *

Milk/Dairy Date labeling required Each person, handler, firm or corporation shall clearly mark each container of milk or milk product, 

cream, yogurt, cream cheese, cottage cheese, ricotta cheese, soft cheese, eggnog or sour cream 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. 

Conn. Gen. Stat. Ann. § 22–

197b (2013). 

(b) Products not manufactured, packaged and heat treated in a manner that makes the product safe to 

store at room temperature shall be conspicuously labeled with a last sale date. The last sale date 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’’. 

Conn. Agencies Regs. § 22–

133–131 (2013). 

Alteration of date labels not permitted (f) Conn. Agencies Regs. § 22–

133–123 (2013). 

Sale after date not restricted Not restricted for milk in Connecticut. No relevant state law.

Delaware

Shellfish Date labeling required (A) Raw shucked shellfish shall be obtained in nonreturnable packages which bear: . . . (2) 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. 

4000 Del. Admin. Code § 3–

202.17 (2013). 

Sale after date not restricted Not restricted for shellfish in Delaware. No relevant state law.

109

Florida

Shellfish Definition (terminal sale date) (65) Terminal sale date—the last day freshly packed shellfish shall be offered for sale; that being no more 

than 14 calendar days subsequent to the date the product was shucked, or for oyster shellstock harvested from the Gulf of Mexico, no more than 14 days subsequent to the date shellstock was harvested. 

Fla. Admin. Code Ann. r. 

5L–1.002 (2013). 

Date labeling required (1) . . . Containers of fresh shellfish, with a capacity of less than 64 ounces, shall further clearly and permanently bear the terminal sale date, by the numerical month, day, and last digit of the year. Fla. Admin. Code Ann. r. 5L–1.007 (2013). Sale after date not permitted (11) It shall be unlawful for any person, firm, corporation, wholesale or retail dealer to sell or offer for sale 

any fresh shellfish after the terminal sale date has expired, or sell or offer for sale any fresh, frozen, or previously frozen shellfish not in compliance with any and all requirements of Chapter 5L–1, F.A.C. 

Fla. Admin. Code Ann. r. 

5L–1.007 (2013). 

Milk/Dairy Date labeling required (1)(a) All milk and milk products shall be legibly labeled with their shelf-life date. The date or date code 

for frozen desserts and other manufactured milk products shall be approved by the department and shall indicate the date of manufacture of the product or the last day the product is to be offered for sale. 

Fla. Admin. Code Ann. r. 

5D–1.007 (2013). 

Sale after date not permitted (1)(e) No milk or milk products shall be offered for sale as a grade A product after the shelf-life expiration 

date shown on the container. All milk and milk products offered for sale after the 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. 

Fla. Admin. Code Ann r. 

5D–1.007 (2013).

Georgia

General Definition (expiration date) (35) ‘‘Expiration Date’’ is synonymous with Pull Date, Best-By Date, Best Before Date, Use-By Date, and 

Sell-By Date; and means the last date on which the following FOOD products can be sold at retail or wholesale: 

Ga. Comp. R. & Regs. 40–

7–1–.02 (2013). 

(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 retail or wholesale shall use an Open Date to 

express the packing date or the expiration date . . . (d) Manner of Expressing the 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. 

Ga. Comp. R. & Regs. 40–

3–1.01 (2013). 

Sale after date not permitted (e) Prohibited Acts: The following acts and the causing thereof are hereby prohibited. Ga. Comp. R. & 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 EXPIRATION DATE, according to Departmental 

Rules Chapter 40–3–1–.01(e)1. 

Ga. Comp. R. & Regs. 40–

7–1–.2 (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 sale, at retail or wholesale, the following food 

items past the EXPIRATION DATE stated on the label: 

Ga. Comp. R. & Regs. 40–

7–1–.26 (2013). 

110

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

(a) Infant Formula. 

Milk Date labeling required (2) All containers of milk and milk products shall be clearly marked with a Sell By Date with the exception of frozen desserts and some shelf stable products where processing codes may be required. Ga. Comp. R. & Regs. 40– 2–3–.01 (2013). 

Sale after date not permitted/Definition (expiration 

date) 

(35) ‘‘Expiration Date’’ is synonymous with Pull Date, Best-By Date, Best Before Date, Use-By Date, and 

Sell-By Date; and means the last date on which the following FOOD products can be sold at retail or wholesale: . . . (e) Milk 

Ga. Comp. R. & Regs. 40–

7–1–.02 (2013). 

Shellfish Date labeling required (8)(c)(a) Raw and frozen shucked molluscan shellfish shall be obtained in nonreturnable packages legibly

bearing . . . the ‘‘sell by’’ date for packages with a capacity of less than l.87 L (1⁄2 gallon) or the date 

shucked for packages with a capacity of l.87 L (1⁄2 gallon) or more. 

Ga. Comp. R. & Regs. 40–

7–1–.10 (2013). 

Sale after date not permitted/Definition (expiration 

date) 

(35) ‘‘Expiration Date’’ is synonymous with Pull Date, Best-By Date, Best Before Date, Use-By Date, and 

Sell-By Date; and means the last date on which the following FOOD products can be sold at retail or wholesale: . . . (d) Shucked oysters 

Ga. Comp. R. & Regs. 40–

7–1–.02 (2013). 

Prepackaged Sandwiches Date labeling required (2)(b) Prepackaged Sandwiches. Ga. Comp. R. & 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 sale, at retail or wholesale, the following food 

items past the EXPIRATION DATE stated on the label: [. . .] (b) Prepackaged Sandwiches. For the purpose of this section, prePACKAGED sandwiches shall be classified as Type A, Type B or Type C. 

Ga. Comp. R. & Regs. 40–

7–1–.26 (2013).

Hawaii

Milk Date labeling required Every container of processed milk and milk product held in retail and wholesale stores, restaurants, 

schools, or similar establishments 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. 

Haw. Code R. § 11–15–39 

(2013). 

Sale after date not restricted Not restricted for milk in Hawaii. No relevant state law.

Idaho

—— —— —— ——

111

Illinois

Eggs Date labeling optional (d) . . . it shall be allowable to include expiration dates in the labeling of consumer-size containers at retail. An expiration date, or other similar language as specified by USDA standards, that is not 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. 

Ill. Admin. Code tit. 8, 

§ 65.30 (2013). 

Sale after date not permitted (d) . . . Eggs with an expiration date marked on the container shall not be offered for sale or sold to a 

consumer after the date marked on the container. 

Ill. Admin. Code tit. 8, 

§ 65.30 (2013).

Indiana

Eggs Date labeling required Sec. 2. All eggs offered for sale in consumer packages (cases, boxes, baskets, or containers): 370 Ind. Admin. 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 nonreturnable packages that bear a legible label

that identifies the . . . ‘‘sell by’’ date for packages with a capacity of less than one-half (1⁄2) gallon or the 

date shucked for packages with a capacity of one-half (1⁄2) gallon or more. 

410 Ind. Admin. Code 7–

24–156 (2013). 

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 been candled and graded shall be 

marked with: 

Iowa Admin. Code r. 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.

Kansas

Eggs Date labeling required (a) Each container of eggs shall be labeled with the following information: . . . (6) the expiration date 

which shall be preceded by ‘‘exp,’’ ‘‘sell by,’’ ‘‘use by’’ or similar language. 

Kan. Stat. Ann. § 2–2509 

(2013). 

Sale after date not restricted Not restricted for eggs in Kansas. No relevant state law.

Kentucky

Milk/Milk Products Definition (Open date) Section 1. (29) ‘‘Open date’’ means the date which shall be affixed on a consumer package or container of 

Grade A pasteurized milk or milk products subsequent to the date of manufacturing, 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. 

902 Ky. Admin. Regs. 

50:010 (2013). 

Date labeling required Section 1. Open Date Required. No person shall sell or offer for sale any Grade A pasteurized milk or milk 

product in this state in a consumer package that does not bear the open date as required by this administrative regulation. 

902 Ky. Admin. Regs. 

50:080 (2013). 

112

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

Sale after date not permitted Section 4. Enforcement. If a product is not sold within the period specified in the open date, the cabinet 

shall take action to remedy the condition consistent with this administrative regulation by removing the product from consumer channels and causing the product to be returned to the milk plant of origin for destruction. 

902 Ky. Admin. Regs. 

50:080 (2013). 

Shellfish Date labeling required Section 9. (4) The certified shellfish dealer shall assure that each package containing less than sixty-four 

(64) fluid ounces of fresh or frozen shellfish shall have: 

902 Ky. Admin. Regs. 

45:020 (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.

Louisiana

Eggs Date labeling required B. Each carton or sleeve shall have on each individual container the following: La. Admin. Code 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.

Maine

Shellfish Date labeling required A. Each individual package containing fresh or fresh frozen shucked shellfish meat shall bear a permanent printed label approved 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: 

13–188 Me. Code R. § 15.21 

(2013).

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.

Maryland

Milk (Grade A) Date labeling required B. A permittee shall conspicuously and legibly mark the cap or non-glass container of Grade A fluid milk

with the words ‘‘Sell by’’, followed by the designation of the month and the day of the month after which the product may not be sold, delivered, or offered for sale. 

Md. Code Regs. 10.15.06.10 

(2013). 

Sale after date not permitted (with exemptions) A. Except as provided in § B of this regulation, a person may not offer Grade A fluid milk for sale beyond 

the sell-by date. 

B. The following establishments may use or serve Grade A fluid milk up to 4 days beyond the sell-by date: 

Md. Code Regs. 10.15.06.11 

(2013).

(1) Food service facilities; (2) Hospitals; (3) Schools; (4) Institutions; and (5) Places where milk is consumed on the premises.

113

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.

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 term ‘‘sell by’’ or ‘‘best if used by’’ in reasonable proximity to the designated date. 

(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: 

105 Mass. Code Regs. 

520.119 (2013). 

(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 sale in the Commonwealth any food product 

after the expiration of a ‘‘sell by date’’ or a ‘‘best if used by date’’ unless: 

105 Mass. Code Regs. 

520.119 (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 11⁄2 ounces. 

(f) Food products manufactured for sale outside the Commonwealth, processed for sale outside the Commonwealth, or stored for sale outside the Commonwealth. 

114

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

Packaged Perishable or 

Semi-Perishable Foods 

Date labeling required (D) Open Dating of Perishable and Semi Perishable Food Products 

No person shall sell, offer for sale, or have in his possession with intent to sell, prepackaged perishable or 

semi-perishable food 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

105 Mass. Code Regs. 

520.119 (2013). 

Sale after date not permitted (F) Sale of Past Date Food Products. No person shall offer for sale in the Commonwealth any food product 

after the expiration of a ‘‘sell by date’’ or a ‘‘best if used by date’’ unless: 

105 Mass. Code Regs. 

520.119 (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 11⁄2 ounces. 

(f) Food products manufactured for sale outside the Commonwealth, processed for sale outside the Commonwealth, or stored for sale outside the Commonwealth.

Michigan *

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 Perishable 

Foods 

Date labeling required (2) A retail food establishment shall not sell or offer for sale a prepackaged perishable food unless the 

package bears a label with a date identified by month and day, except that bakery products with a 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. 

Mich. Comp. Laws Ann. 

§ 289.8107 (2013). 

Date labeling required (b)(c)(3) The date for prepackaged perishable food may be displayed with or without explanatory terms. If 

explanatory terms are used, the terms shall be limited to one of the following: ‘‘Sell by 

__

’’, ‘‘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. 

Mich. Comp. Laws Ann. 

§ 289.8107 (2013). 

Sale after date not permitted (b)(c)(4) . . . A retail food establishment shall not sell or offer for sale any of the following foods under the 

following circumstances . . . (b) After the date, nonperishable food or 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. 

Mich. Comp. Laws Ann. 

§ 289.8107 (2013). 

115

Milk/Dairy Date labeling required Sec. 69(1) Each processor and manufacturer of milk and milk products sold in this state shall place on 

each container of milk and milk products a recommended last day of sale by month and date. 

(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. 

Mich. Comp. Laws Ann. 

§ 288.539 (2013). 

Sale after date not permitted (with exemptions) Sec. 69(9) Milk and milk products shall not be offered for sale after the sell-by date unless they are advertised to the final consumer in a prominent manner as being beyond the recommended last day of sale. Mich. Comp. Laws Ann. 

§ 288.539 (2013). 

Meat Date labeling not required Not required for meat in Michigan. No relevant state law. 

Sale after date not permitted (with exemptions) (4) A retail food establishment shall not sell or offer for sale any of the following foods under the following 

circumstances: 

Mich. Comp. Laws 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.

Minnesota

General Definition (open date; quality assurance date) Subp. 7. Open date. ‘‘Open date’’ means a date consisting of the name or abbreviation or numerical designation for the month, the 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: 

Minn. R. 1550.1040 (2013).

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 ordinance regarding open dating of 

perishable foods other than sections 31.781 to 31.789. 

Minn. Stat. § 31.786 (2013). 

116

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

Eggs Date labeling required Subpart 1. Pack date. Consumer grades of eggs must be pack dated in type not smaller than 1⁄4′′ capitals 

to indicate the date of 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.’’

Minn. R. 1520.1900 (2013). 

Sale after date not restricted Nothing contained in sections 31.781 to 31.789 or any rule adopted pursuant hereto shall require the removal from sale of a perishable 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. 

Minn. Stat. § 31.784 (2013). 

Perishable Foods Definition (perishable food) Subd. 3. ‘‘Perishable food’’ means any food intended for human consumption (other than meat and poultry, 

frozen food, or fresh fruit or vegetables), which has a quality assurance date. 

Minn. Stat. § 31.782 (2013). 

Date labeling required Every manufacturer or processor of perishable food, except meat, poultry, frozen food, and fresh fruits and 

vegetables, as exempt by 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. 

Minn. R. 1550.1060 (2013). 

Date labeling required (exemptions) Perishable foods having quality assurance dates of more than 90 days need not bear open dates. Minn. R. 1550.1160 (2013). Sale after date not restricted Nothing contained in sections 31.781 to 31.789 or any rule adopted pursuant hereto shall require the removal from sale of a perishable 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. 

Minn. Stat. § 31.784 (2013). 

Shellfish Date labeling required A. Raw shucked shellfish shall be obtained in nonreturnable packages that bear a legible label that identifies: Minn. R. 4626.0200 (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 pursuant hereto shall require the removal from sale of a perishable 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. 

Minn. Stat. § 31.784 (2013).

Mississippi

Shellfish Date labeling required 100.06 On packages containing sixty-four (64) fluid ounces or more shall have on the lid and sidewall or 

bottom the ‘‘DATE SHUCKED’’ indicated as the number of the day, month and year or the 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. 

43–46 Miss. Code R. § 17 

(LexisNexis 2013). 

Sale after date not restricted Not restricted for shellfish in Mississippi. No relevant state law.

Missouri

—— —— —— ——

117

Montana

Milk (Grade A) Definition (pasteurized date) (1)(d) ‘‘Pasteurized date’’ is the same date a unit of milk completes pasteurization. Mont. Admin. R. 32.8.101 

(2013). 

Definition (‘‘sell-by’’ date) (e) A ‘‘sell-by’’ date is defined as the 12th consecutive day, never to exceed 288 hours, following pasteurization of a unit of milk. Mont. Admin. R. 32.8.101 (2013). Date labeling required (1) Each container into which grade A pasteurized milk is placed for sale for public consumption must be

marked with a pasteurized date and a sell-by date. 

Mont. Admin. R. 32.8.203 

(2013). 

(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 unit of grade A milk, there will be no 

quantities of that unit of 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. 

Mont. Admin. R. 32.8.202 

(2013).

Nebraska

—— —— —— ——

Nevada *

Milk Date labeling required 1. At the time of sale to the consumer by a retail store of any milk or milk product, there must appear 

upon the package or container 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. 

Nev. Admin. Code 

§ 584.4321 (2012). 

Date labeling required 2. The date respecting assurance of quality must appear at the top of the carton or package and must be 

indelible and in a contrasting 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. 

Nev. Admin. Code 

§ 584.4321 (2012). 

Sale after date not restricted Not restricted for milk in Nevada. No relevant state law. 

Potentially Hazardous 

Foods 

Definition (potentially hazardous foods) 1. ‘‘Potentially hazardous food’’ means: Nev. Admin. Code § 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 food establishment or food processing

plant to be ready to eat and 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 

Nev. Admin. Code § 446.145 

(2012). 

Sale after date not permitted 4. These foods must be discarded if not sold, served or frozen: Nev. Admin. Code § 446.145 

(2012). 

118

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

(a) Within 10 calendar days after the original container is opened; or (b) On or before the date by which the food must be sold or used, as indicated on the container, whichever occurs first. 

Nev. Admin. Code § 446.145 

(2012).

New Hampshire

Cream Date labeling required II. All retail containers of cream sold or offered for sale shall be conspicuously marked with the date of the 

last day on which it may be sold or offered for sale with a reasonable expectation that the cream will not be sour, as determined by the manufacturer. 

N.H. Rev. Stat Ann. 

§ 184:30–g (2013). 

Sale after date not restricted Not restricted for cream in New Hampshire. No relevant state law. 

Prewrapped Sandwiches Definition (expiration date) (a) ‘‘Expiration date’’ means the last day of sale, printed or stamped on a pre-wrapped sandwich label, determined in accordance with these rules. N.H. Code Admin. R. Agr. 1412.03 (2013). 

Date labeling required (c) The expiration date for a fresh refrigerated pre-wrapped sandwich shall be clearly and legibly printed 

or stamped by the vendor on the sandwich wrapper label, at the time it is wrapped, by 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. 

N.H. Code Admin. R. Agr. 

1412.04 (2013). 

Sale after date not permitted The purpose of these rules is to protect public health and safety by establishing an expiration date on all 

sandwiches beyond which each sandwich shall not be sold. These rules implement the procedures of the department of agriculture, markets, and food pursuant to RSA 438:26–b, dating pre-wrapped sandwiches. 

N.H. Code Admin. R. Agr. 

1412.01 (2013).

New Jersey

Milk/Dairy Date labeling required Containers of milk, certified milk, Vitamin D milk, homogenized milk, low fat milk, protein fortified low 

fat milk, skim milk, protein fortified skim milk, nonfat milk, protein fortified nonfat 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. 

N.J. Stat. Ann. § 24:10–

57.23 (2013). 

Sale after date not permitted No fluid milk product listed in this section shall be sold or offered for sale after 11:59 p.m. of the date appearing on the containers so marked. N.J. Stat. Ann. § 24:10– 57.23 (2013). 

(d) No milk product referred to in this regulation shall be sold or offered for sale after 11:59 p.m. of the 

date appearing on the package or container. Products delivered prior to the ‘‘shelf-life expiration date’’ may be consumed on the premises beyond the date appearing thereon. 

N.J. Admin. Code § 8:21–

10.20 (2013). 

Shellfish Date labeling required (n)(1) Raw shucked shellfish, packaging and identification requirements include the following: . . . N.J. Admin. Code § 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.

119

New Mexico

Milk/Dairy Definition (pull date) E. ‘‘Pull date’’ means the last day on which a product is to be sold or offered for sale for human consumption. N.M. Code R. § 21.34.5.7 (2013). 

Date labeling required A. In addition to other labeling requirements, except as otherwise exempted in this rule, all processors

and producer distributors shall label each container of one-half (1⁄2) pint or larger of milk, low-fat milk, nonfat 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. 

N.M. Code R. § 21.34.5.9 

(2013). 

Sale after date not permitted Dairy products required to be labeled with a pull date and those dairy products labeled with an optional 

pull date, except frozen, dried, condensed or evaporated products, may not be sold or offered for sale for human consumption by any person after the pull date. 

N.M. Code R. § 21.34.5.16 

(2013).

New York

—— —— —— ——

North Carolina

General Alteration of date labels not permitted A food shall be deemed to be misbranded: . . . N.C. Gen. Stat. 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 container or tag by which a consumer is informed of the latest date the product will remain suitable for sale. 15A N.C. Admin. Code 18A.0301 (2013). 

Date labeling required (c) Any container of shucked shellfish which has a capacity of 64 fluid ounces or more shall be dated as of 

the date shucked on both the lid and sidewall or bottom. Any container of shucked shellfish which has a capacity of less than 64 fluid ounces shall indicate a SELL BY date. 

15A N.C. Admin. Code 

18A.0614 (2013). 

Sale after date not restricted Not restricted for shellfish in North Carolina. No relevant state law.

North Dakota

Shellfish Date labeling required 1. Raw shucked shellfish shall be obtained in nonreturnable packages which bear a legible label that identifies . . . N.D. Admin. Code 33–33– 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.

Ohio

General State preemption of local rules (C) To ensure that a uniform system of determining the useful product life of perishable food products for 

sale within the state is 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. 

Ohio Rev. Code Ann. 

§ 3715.171 (2013). 

120

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

Definition (quality assurance period) ‘‘Quality assurance period’’ means the period of time following the completion of normal manufacturing, 

processing, and packaging 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. 

Ohio Rev. Code Ann. 

§ 3715.171 (2013). 

Definition (sale date) ‘‘Sale date’’ means the date by which the manufacturer, processor, or packager of a packaged food product 

recommends that the food product be sold for consumption based on the food product’s quality assurance period. 

Ohio Rev. Code Ann. 

§ 3715.171 (2013). 

Packaged Perishable 

Foods 

Date labeling required (A) Except as provided in division (B) of this section, no person shall knowingly sell or offer to sell in this 

state any packaged 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. 

Ohio Rev. Code Ann. 

§ 3715.171 (2013). 

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 less than sixty-four fluid ounces of fresh or 

frozen shellfish shall have: . . . 

Ohio Admin. Code 901:3–8–

03 (2013).

(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.

Oklahoma *

Eggs Date labeling required B. An expiration date shall be used on the container, the date shall be preceded by ‘‘EXP’’, ‘‘sell by’’, or 

‘‘use through’’. 

Okla. Stat. tit. 2, § 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 packages which bear a legible label that 

identifies the . . . (2) The ‘‘sell by’’ or ‘‘best if used by’’ date for packages with a capacity 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. 

Okla. Admin. Code 

§ 310:257–5–15 (2013). 

Sale after date not restricted Not restricted for shellfish in Oklahoma. No relevant state law.

Oregon

Packaged Perishable 

Foods 

Definition (open date) (2) ‘‘Open date’’ means a date clearly visible to retail consumers showing the pull date, packing date or 

other date described in ORS 616.835(2). 

Or. Rev. Stat. § 616.805 

(2013). 

Date labeling required No person shall sell or offer for sale at retail any packaged perishable food unless the package bears a

clearly marked, printed or 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. 

Or. Rev. Stat. § 616.815 

(2013). 

Unless otherwise provided, the following perishable foods shall be open date labeled with the pull date: Or. Admin. R. 603–025–

0080 (2013). 

121

(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 exemptions) (1) No person shall sell or offer for sale at retail any packaged perishable food after the expiration of the 

open pull date appearing on the label of the package or container unless: 

Or. Rev. Stat. § 616.825 

(2013).

(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 permitted No person shall: Or. Rev. Stat. § 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 pasteurized milk held in retail food stores, restaurants, schools or 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. 

7 Pa. Code § 59a.15 (2013). 

Sale after date not permitted (c) Prohibition. Pasteurized milk may not be sold or offered for sale if the milk is sold or offered for sale 

after the sell-by date designated on the container. 

7 Pa. Code § 59a.15 (2013). 

Shellfish Date labeling required (a) Label requirement. Raw shucked shellfish shall be obtained in nonreturnable packages which bear a 

legible label that identifies the 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. 

7 Pa. Code § 46.246 (2013). 

Sale after date not restricted Not restricted for shellfish in Pennsylvania. No relevant state law.

122

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

Rhode Island

Packaged Bakery Products Definition (pull date) (C) ‘Pull Date’ is the final date or day as established by the packer or manufacturer upon which a pack- aged bakery product may be sold, except as provided under Chapter 21–33, Section 3 and Section R21–33–

PBP 6.00 of these rules and regulations. 

31–3–5 R.I. Code R. § 21–

33–PBP 1.00 (2013). 

Definition (packaged bakery product) (A) A ‘Packaged Bakery Product’ is a packaged bakery or bakery-type product consisting of flour and other 

ingredients having a normal shelf life as established by the manufacturer or distributor 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. 

31–3–5 R.I. Code R. § 21–

33–PBP 1.00 (2013). 

Date labeling required All packaged bakery product sold in this state shall have a pull date in a conspicuous place upon each 

package in which they are sold in accordance with these regulations and Chapter 21–33 of Rhode Island General Laws of 1956, as amended. 

31–3–5 R.I. Code R. § 21–

33–PBP 2.00 (2013). 

Sale after date not permitted (with exemptions) Packaged bakery products may be sold after their ‘Pull Date’, provided however, that: 31–3–5 R.I. Code R. § 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 pastdate bakery products. 

Shellfish Date labeling required 6.6(d) The dealer shall assure that each package containing less than 64 fluid ounces of fresh or frozen

shellfish shall have: 

31–3–9 R.I. Code R. § 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 letters not less than 1⁄4′′ in size, the date 

when the eggs were packed and candled or the expiration date, which may not exceed forty-five days from the date packed 

S.C. Code Ann. § 39–39–140 

(2013). 

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 shall include: S.C. Code Ann. 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.

123

South Dakota *

—— —— —— ——

Tennessee

—— —— —— ——

Texas

Shellfish Date labeling required (d) The dealer shall assure that each package containing less than 64 fluid ounces of fresh or frozen 

molluscan shellfish shall have [. . .] (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. 

25 Tex. Admin. Code 

§ 241.66 (2013). 

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 packages which bear a legible label that 

identifies the: . . . 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 (1⁄2gallon) or more. 

12–5 Vt. Code R. § 30:5–204 

(2013). 

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 whole milk, nonfat dry milk, dry buttermilk, dry whey, evaporated whole or skim milk, condensed whole milk and condensed plain or sweetened 

skim milk. 

2 VA. Admin. Code § 5–

531–10 (2013). 

Date labeling required 4. No person may sell or offer for sale to the final consumer any dairy product in container or package 

form that does not bear a ‘‘sell by date.’’

2 VA. Admin. Code § 5–

531–60 (2013). 

Sale after date not permitted 5. No person may sell or offer for sale to the final consumer any dairy product in container or package 

form after the ‘‘sell by date’’ shown on the package. 

2 VA. Admin. Code § 5–

531–60 (2013). 

Alteration of date labels not permitted 6. No person may change, remove, or replace the ‘‘sell by date’’ on any dairy product in container or package form after the ‘‘sell by date’’ is initially affixed to the package. 2 VA. Admin. Code § 5– 531–60 (2013). 

Shellfish Date labeling required A. Raw shucked shellfish shall be obtained in nonreturnable packages that bear a legible label that identifies the: . . . ‘‘sell 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. 

2 VA. Admin. Code § 5–

585–400 (2013). 

Sale after date not restricted Not restricted for shellfish in Virginia. No relevant state law.

Washington *

Perishable Packaged 

Food Goods 

Definition (pull date) (2) ‘‘Pull date’’ means the latest date a packaged food product shall be offered for sale to the public. Wash. Rev. Code Ann. 

§ 69.04.900 (2013). 

Definition (shelf life) (3) ‘‘Shelf life’’ means the length of time during which a packaged food product will retain its safe consumption quality if stored under proper temperature conditions. Wash. Rev. Code Ann. 

§ 69.04.900 (2013). 

Definition (perishable packaged food goods) (1) ‘‘Perishable packaged food goods’’ means and includes all foods and beverages, except alcoholic beverages, frozen foods, fresh meat, poultry and fish and a raw agricultural commodity as defined in 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. 

Wash. Rev. Code Ann. 

§ 69.04.900 (2013). 

124

State Date Labeling Regulations—Continued

I. Applies To Food Type II. Purpose of Law III. Excerpted Language from the Law IV. Legal Citation 

Date labeling required All perishable packaged food goods with a projected shelf life of thirty days or less, which are offered for 

sale to the public after January 1, 1974 shall state on the package the pull date. 

Wash. Rev. Code Ann. 

§ 69.04.905 (2013). 

Sale after date not permitted (with exemptions) Can products be sold after the pull date? Yes, products can be sold after the pull date has expired if they 

are still wholesome, not 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. 

Wash. Admin. Code § 16–

142–130 (2013). 

Alteration of date labels not permitted Can pull dates be changed? No, pull dates on perishable packaged foods subject to pull dating may not be 

changed, crossed-out or concealed. 

Wash. Admin. Code § 16–

142–150 (2013).

Washington, D.C.

General Definition (pull date) Pull date—the date after which the food may not be sold, unless isolated and prominently labeled as being 

beyond the last date on which the food should be sold without a significant risk of spoilage, 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. 

D.C. Mun. Regs. tit. 25–A, 

§ 9901 (2013). 

Potentially Hazardous 

Foods, Dairy, Meat/Poultry, Eggs 

Date labeling required 718.1 All pasteurized fluid milk, fresh meat, poultry, fish, bread products, eggs, butter, cheese, cold meat 

cuts, mildly processed pasteurized products, and potentially hazardous foods sold 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. 

D.C. Mun. Regs. tit. 25–A, 

§ 718 (2013). 

Sale after date not permitted Pull date—the date after which the food may not be sold, unless isolated and prominently labeled as being 

beyond the last date on which the food should be sold without a significant risk of spoilage, 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. 

D.C. Mun. Regs. tit. 25–A, 

§ 9901 (2013). 

Alteration of date labels not permitted 718.2 If any food that has a pull date is rewrapped, the new package shall retain the original pull date 

and the word ‘‘REWRAPPED’’ shall be prominent displayed on the package. 

D.C. Mun. Regs. tit. 25–A, 

§ 718 (2013). 

Packaged Perishable 

Food 

Date labeling not required Date labeling not required for packaged perishable food in Washington, D.C. No relevant state law. Sale after date not permitted No person shall sell, trade, or barter any perishable packaged food beyond the pull date appearing thereon. D.C. Mun. Regs. tit. 25–B, 

§ 3606 (2013). 

Alteration of date labels not permitted 3606.2 No person shall rewrap or repackage any packaged perishable food with the intention of placing a 

pull date on the food that is different from the original pull date. 

D.C. Mun. Regs. tit. 25–B, 

§ 3606 (2013). 

Shellfish Date labeling required 2403.5 Each individual package containing less than sixty-four fluid ounces (64 fl. oz.) of fresh or frozen 

shellfish shall be labeled with the following information: . . . (b) 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. 

D.C. Mun. Regs. tit. 25–B, 

§ 2403 (2013). 

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 denote the expiration date of the eggs on 

the outside container in which the egg cards are transported or on an invoice provided to the retailer. 

W. Va. Code R. § 61–7A–6 

(2013). 

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 under par. (d): Wis. Admin. Code Agric. 

Trade & Consumer Prot. § 88–08 (2013). 

125

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 expiration or ‘‘sell by’’ date specified for those 

eggs under subs. (1)(e)1. or (2)(g)1. If otherwise used as human food, the eggs shall meet at least grade B egg standards. 

Wis. Admin. Code Agric. 

Trade & Consumer Prot. § 88–08 (2013). 

Alteration of date labels not permitted (4)(b) Eggs labeled with dates under subs. (1)(e) or (2)(g) shall retain those dates and may not be repackaged or relabeled with any other dates. Wis. Admin. Code Agric. Trade & Consumer Prot. 

§ 88–08 (2013). 

Shellfish Date labeling required 3–202.17(A) Raw shucked shellfish shall be obtained in nonreturnable packages which bear a legible label

that identifies the: . . . (2) 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. 

Wis. Admin. Code Agric. 

Trade & Consumer Prot. § 75, App. (2013). 

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 packages which bear a legible label that 

identifies the: . . . (ii) 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. 

AGR FSF 3 Wyo. Code R. 

§ 11 (2013). 

Sale after date not restricted Not restricted for shellfish in Wyoming. No relevant state law. 

126

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 SafetyBased 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 twentythree 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. 

127

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=PYEggCartonLabeling1Nav1-200&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). 

128

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. 

129

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 Readyto-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). 

130

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/GiantLandover, 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-foodpastits-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. 

131

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/foodsafety-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. 

132

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 accomVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00136 Fmt 6633 Sfmt 6601 P:\DOCS\114-52\20309.TXT BRIAN
133

plish 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 

134

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. 

135

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. 

136

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 

137

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 

138

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 

139

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 selfactualize, 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 

140

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 doVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00144 Fmt 6633 Sfmt 6601 P:\DOCS\114-52\20309.TXT BRIAN
141

nation 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 

142

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 

143

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 

144

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 

145

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. 

146

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 

147

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 reVerDate 0ct 09 2002 15:04 Aug 03, 2016 Jkt 041481 PO 00000 Frm 00151 Fmt 6633 Sfmt 6601 P:\DOCS\114-52\20309.TXT BRIAN
148

quired 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. 

149

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. 

150

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 privatesector 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 

151

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 

152

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:] 

153

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,

ROBERT BUDWAY, 

President, 

Can Manufacturers Institute. 


11452054.eps
154

ATTACHMENT

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 


11452055.eps
155

1Food 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. 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. 5 Royte, Elizabeth. National Geographic. ‘‘How ‘Ugly’ Fruits and Vegetables Can Help Solve 

World Hunger.’’ March 2016. http://www.nationalgeographic.com/magazine/2016/03/globalfood-waste-statistics/. 

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. 

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 alltoo-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

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. 

156

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.

Æ