II 117th CONGRESS 1st Session S. 3324 IN THE SENATE OF THE UNITED STATES December 7, 2021 Mr. Blumenthal introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To establish requirements for quality and discard dates that are, at the option of food labelers, included in food packaging, and for other purposes.

1. Short title This Act may be cited as the Food Date Labeling Act of 2021 . 2. Definitions In this Act: (1) Administering Secretaries The term administering Secretaries means— (A) the Secretary of Agriculture, with respect to any product that is— (i) under the jurisdiction of the Secretary of Agriculture; and (ii) (I) a poultry product (as defined in section 4 of the Poultry Products Inspection Act ( 21 U.S.C. 453 )); (II) a meat food product (as defined in section 1 of the Federal Meat Inspection Act ( 21 U.S.C. 601 )); or (III) an egg product (as defined in section 4 of the Egg Products Inspection Act ( 21 U.S.C. 1033 )); and (B) the Secretary of Health and Human Services, with respect to any product that is— (i) under the jurisdiction of the Secretary of Health and Human Services; and (ii) a food (as defined in section 201 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 321 )). (2) Discard date The term discard date means a date voluntarily printed on food packaging that signifies the end of the estimated period of shelf life under any stated storage conditions, after which the food labeler advises the product not be consumed. (3) Food labeler The term food labeler means the producer, manufacturer, distributor, or retailer that places a date label on food packaging of a product. (4) Quality date The term quality date means a date voluntarily printed on food packaging that is intended to communicate to consumers the date after which— (A) the quality of the product may begin to deteriorate; but (B) the product remains apparently wholesome food (as defined in subsection (b) of the Bill Emerson Good Samaritan Food Donation Act ( 42 U.S.C. 1791(b) )). 3. Quality dates and discard dates (a) Quality dates (1) In general If a food labeler includes a quality date on food packaging, the label shall use the uniform quality date label phrase under paragraph (2). (2) Uniform phrase The uniform quality date label phrase under this paragraph shall be BEST If Used By or, if permissible under subsection (c)(3), the standard abbreviation of BB , unless and until the administering Secretaries, acting jointly, specify through rulemaking another uniform phrase to be used for purposes of complying with paragraph (1). (3) Option of the labeler The decisions on whether to include a quality date on food packaging and which foods should be so labeled shall be at the discretion of the food labeler. (b) Discard dates (1) In general If a food labeler includes a discard date on food packaging, the label shall use the uniform discard date label phrase under paragraph (2). (2) Uniform phrase The uniform discard date label phrase under this paragraph shall be USE By or, if permissible under subsection (c)(3), the standard abbreviation of UB , unless and until the administering Secretaries, acting jointly, specify through rulemaking another uniform phrase to be used for purposes of complying with paragraph (1). (3) Option of the labeler The decisions on whether to include a discard date on food packaging and which foods should be so labeled shall be at the discretion of the food labeler. (c) Quality date and discard date labeling (1) In general The quality date or discard date, as applicable, and immediately adjacent uniform quality date label phrase or discard date label phrase— (A) shall be— (i) in single easy-to-read type style; and (ii) located in a conspicuous place on the package of the food; and (B) may be on the label or, at the discretion of the food labeler, elsewhere on the package. (2) Date format Each quality date and discard date shall be stated in terms of day and month and, as appropriate, year. (3) Abbreviations A food labeler may use a standard abbreviation of BB and UB for the quality date and discard date, respectively, only if the food packaging is too small to include the uniform phrase described in subsection (a)(2) or (b)(2), as applicable. (4) Freeze by A food labeler may add or Freeze By following a quality date or discard date uniform phrase. (d) Education Not later than 1 year after the date of enactment of this Act, the administering Secretaries, acting jointly, shall provide consumer education and outreach on the meaning of quality date and discard date food labels. (e) Effect; preemption (1) Effect on sale or donation of foods Nothing in this Act or an amendment made by this Act prohibits any State or political subdivision of a State from establishing or continuing in effect any requirement that prohibits the sale or donation of foods based on passage of the discard date. (2) Effect on infant formula Nothing in this Act or an amendment made by this Act— (A) applies with respect to infant formula (as defined in section 201 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 321 )); or (B) affects the requirements relating to infant formula under section 412 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 350a ) or any other applicable provision of law. (3) Preemption No State or political subdivision of a State may establish or continue in effect any requirement that— (A) relates to the inclusion in food labeling of a quality date or a discard date that is different from or in addition to, or that is otherwise not identical with, the requirements of this Act and the amendments made by this Act; or (B) prohibits the sale or donation of foods based on passage of the quality date. (4) Enforcement The administering Secretaries, acting jointly and in coordination with the Federal Trade Commission, shall ensure that the uniform quality date label phrase and uniform discard date label phrase are standardized across all food products. (5) Savings Notwithstanding paragraph (3), nothing in this Act, any amendment made by this Act, or any standard or requirement imposed pursuant to this Act preempts, displaces, or supplants any State or Federal common law rights or any State or Federal statute creating a remedy for civil relief, including a remedy for civil damage, or a penalty for criminal conduct. (f) Time temperature indicator labels Nothing in this Act or an amendment made by this Act prohibits or restricts the use of time-temperature indicator labels or similar technology that is in addition to or in lieu of any uniform quality date label phrase under subsection (a)(2) or uniform discard date label phrase under subsection (b)(2). 4. Misbranding (a) FDA violations Section 403 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 343 ) is amended by adding at the end the following: (z) If it is food and its labeling is in violation of section 3 of the Food Date Labeling Act of 2021 . . (b) Poultry products Section 4(h) of the Poultry Products Inspection Act ( 21 U.S.C. 453(h) ) is amended— (1) in paragraph (11), by striking or at the end; (2) in paragraph (12), by striking the period at the end and inserting ; or ; and (3) by adding at the end the following: (13) if its labeling is in violation of section 3 of the Food Date Labeling Act of 2021 . . (c) Meat products Section 1(n) of the Federal Meat Inspection Act ( 21 U.S.C. 601(n) ) is amended— (1) in paragraph (11), by striking or at the end; (2) in paragraph (12), by striking the period at the end and inserting ; or ; and (3) by adding at the end the following: (13) if its labeling is in violation of section 3 of the Food Date Labeling Act of 2021 . . (d) Egg products Section 7(b) of the Egg Products Inspection Act ( 21 U.S.C. 1036(b) ) is amended in the first sentence by inserting or if its labeling is in violation of section 3 of the Food Date Labeling Act of 2021 before the period at the end. 5. Regulations Not later than 2 years after the date of enactment of this Act, the administering Secretaries, acting jointly, shall promulgate final regulations for carrying out this Act and the amendments made by this Act. 6. Delayed applicability This Act and the amendments made by this Act shall apply only with respect to food products that are labeled on or after the date that is 2 years after the date of promulgation of final regulations under section 5.