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Reducing Consumer Food Waste Through the Food Date Labeling Act of 2021

December 17, 2021

This post was written by Food Law and Policy Clinic student, Jack Becker.

On December 7, Representative Chellie Pingree (ME), Representative Dan Newhouse (WA), and Senator Richard Blumenthal (CT) reintroduced the Food Date Labeling Act of 2021 (H.R. 6167/S. 3324) to federally standardize date labels on food products. The Harvard Law School Food Law and Policy Clinic (FLPC) enthusiastically supports this bipartisan legislation, which aims to reduce food waste caused by consumer confusion over date labels.

80 million tons of food are wasted every year, and over 35% of this waste comes from consumers. Consumer food waste is a major strain on the environment (151 million metric tons of CO₂e per year) and the economy ($158 billion wasted per year). Even worse, while consumers waste the equivalent of 50 billion meals annually, 10.5% of American households are food insecure.

FLPC has advocated for a variety of ways to reduce food waste, including federally standardizing date labels. Currently, date labels inconsistently use terms such as “best by,” “best before,” “expires on,” “use by,” and “sell by.” The federal government does not regulate these terms, and state laws present a litany of differing requirements. This creates challenges for businesses, who must comply with different state date labeling laws, and consumers, who may misinterpret labels.

Food frequently ends up in the trash due to misinterpreted date labels. While food labelers often use date labels to indicate quality and flavor, not safety, nearly 85% of consumers at least occasionally throw away food when it passes the labeled date. This means that safe food is discarded at an alarming rate. Millennials, who represent the largest generation in the United States, are especially prone to misinterpreting date labels as indicators of safety and discarding past-date food.

To help prevent misinterpretations, food manufacturer and retailer groups joined forces in 2017 to create an industry-wide date labeling standard. Within two years of the standard’s introduction, 87% of relevant products used the standardized labeling terms (“BEST If Used By” for quality and “USE By” for safety). However, the standardized labels conflict with date labeling requirements in 27 states, making them infeasible for long-term universal adoption. To fix this, FLPC has advocated for a federal solution and policymakers have proposed these solutions.

The Food Date Labeling Act of 2021 establishes a dual date labeling system, which requires food labelers that choose to use date labels to use one of two phrases: “BEST If Used By” to indicate food quality or “USE By” to indicate food safety. This replaces the current date labeling thicket among states and uses terms that many consumers already understand. The same terms were previously chosen by the food industry, and the Food and Drug Administration and the U.S. Department of Agriculture both recommend “Best If Used By” language for quality labels. The bill also includes an education and outreach component to help consumers learn about the updated date labels.

In addition, the bill addresses prohibitions on the sale or donation of past-date food. Twenty states restrict or ban the sale or donation of past-date food, even if the date is related to freshness and the food is still perfectly safe. This leads to unnecessary food waste and prevents food from going to those in need. The Food Date Labeling Act of 2021 preempts state laws that bar the sale or donation of food past the “BEST If Used By” or quality date, while still allowing states to prohibit the past-date sale or donation of foods bearing the “USE By” discard date.

The positive impact of date label standardization could be substantial. Potential annual benefits include: $2.41 billion in net financial benefit, 582,000 tons of food waste diverted, 2.73 million metric tons in reduced CO₂e emissions, and 162 billion gallons of water saved. All of this is possible with a total investment of under $10 million per year from government, philanthropic, and private sources.

FLPC is pleased to support this bipartisan bill, which is a perfect first step in tackling food waste and benefitting consumers, businesses, the environment, and the American economy.

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