Food Date Labeling, 96205-96207 [2024-27810]

Agencies

• DEPARTMENT OF AGRICULTURE
• Food Safety and Inspection Service
• Food and Drug Administration
• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 89, Number 233 (Wednesday, December 4, 2024)]
[Notices]
[Pages 96205-96207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27810]


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Notices
                                                Federal Register
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Federal Register / Vol. 89, No. 233 / Wednesday, December 4, 2024 / 
Notices

[[Page 96205]]



DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FSIS-2024-0021]


Food Date Labeling

AGENCY: Food Safety and Inspection Service (FSIS), U.S. Department of 
Agriculture (USDA); Food and Drug Administration (FDA), U.S. Department 
of Health and Human Services (HHS).

ACTION: Request for Information.

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SUMMARY: FSIS and FDA (we, the agencies) are seeking public input on 
food date labeling. This Request for Information seeks information on 
industry practices and preferences for date labeling, research results 
on consumer perceptions of date labeling, and any impact date labeling 
may have on food waste.

DATES: Submit comments on or before February 3, 2025.

ADDRESSES: FSIS invites interested persons to submit information. 
Submit comments by one of the following methods:
     Federal eRulemaking Portal: This website allows commenters 
to type short comments directly into the comment field on the web page 
or to attach a file for lengthier comments. Go to https://www.regulations.gov. Follow the online instructions at that site for 
submitting comments.
     Mail: Send to Docket Clerk, U.S. Department of 
Agriculture, Food Safety and Inspection Service, 1400 Independence 
Avenue SW, Mailstop 3758, Washington, DC 20250-3700.
     Hand- or Courier-Delivered Submittals: Deliver to 1400 
Independence Avenue SW, Jamie L. Whitten Building, Room 350-E, 
Washington, DC 20250-3700.
    Instructions: All items submitted by mail or electronic mail must 
include the Agency name and docket number FSIS-2024-0021. Comments 
received in response to this docket will be made available for public 
inspection and posted without change, including any personal 
information, to https://www.regulations.gov.
    Docket: For access to background documents or comments received, 
call 202-720-5046 to schedule a time to visit the FSIS Docket Room at 
1400 Independence Avenue SW, Washington, DC 20250-3700.

FOR FURTHER INFORMATION CONTACT: 
    FSIS: Rachel Edelstein, Assistant Administrator, Office of Policy 
and Program Development; Telephone: (202) 205-0495.
    FDA: Peter Koufopoulos; Deputy Director for Animal Derived Food; 
Human Foods Program; Telephone: (240) 252-9709.

SUPPLEMENTARY INFORMATION: 

Background

    USDA and FDA jointly have broad jurisdiction and oversight over the 
U.S. food supply. FSIS and FDA have responsibility for ensuring that 
food labels on products over which they each have jurisdiction are 
truthful and not misleading. This applies to foods produced 
domestically, as well as foods imported from foreign countries. FSIS 
has the authority to regulate the labeling of most meat (including 
Siluriformes fish) and poultry products, and egg products. FDA has 
authority over all other foods, including seafood (except Siluriformes 
fish), game meat and shell eggs. Accordingly, some foods, such as eggs 
and meat, are regulated by both agencies.
    FSIS is responsible for ensuring that meat, poultry, and egg 
products are safe, wholesome, and properly labeled and packaged. The 
Agency administers a regulatory program for meat products under the 
Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 et seq.), for poultry 
products under the Poultry Products Inspection Act (PPIA) (21 U.S.C. 
451 et seq.), and for egg products under the Egg Products Inspection 
Act (EPIA) (21 U.S.C. 1031 et seq.).
    Under the FMIA, PPIA, and EPIA, any meat, poultry, or egg product 
is misbranded if its labeling, including date labeling, is false or 
misleading in any particular (21 U.S.C. 601(n)(1); 21 U.S.C. 453(h)(1); 
21 U.S.C. 1036(b)). In particular, 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 (9 CFR 317.8(a)), 
381.129(b), 590.411(f)(1)).
    For meat, poultry, and egg products under FSIS jurisdiction, dates 
may be voluntarily applied to product labels provided the products are 
labeled in a manner that is truthful and not misleading and in 
compliance with FSIS regulations (see 9 CFR 317.8, 381.129, and 
590.411). To comply, a calendar date, if shown on labeling, must 
express both the month and day of the month. In the case of shelf-
stable (including thermally processed, commercially sterile products) 
and frozen products, the year must also be displayed. Additionally, 
immediately adjacent to the date must be a phrase explaining the 
meaning of that date such as ``Best if Used By.''
    FDA regulates a significant portion of the nation's food supply, 
including fruits, vegetables, dairy (e.g., milk, cheese, yogurt), grain 
(e.g., breads, cereals, rice), packaged foods (e.g., canned foods, 
frozen foods, ready-to-eat foods), shell eggs (i.e., whole eggs that 
are still in the shell), seafood (except Siluriformes fish), infant 
formula, dietary supplements, beverages, and game meat. FDA helps 
ensure that such foods are safe, sanitary, wholesome, and that their 
labeling is truthful and non-misleading. To achieve this, FDA 
administers regulatory programs under various authorities, including 
the Federal Food, Drug, and Cosmetic Act (FD&C Act)(21 U.S.C. 9), the 
Fair Packaging and Labeling Act(FPLA)(15 U.S.C. 39), and the Nutrition 
Labeling and Education Act (NLEA)(21 U.S.C. 9 343-1).\1\
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    \1\ Under section 201(ff) of the FD&C Act, dietary supplements 
are deemed ``food'' for most purposes, and thus the labeling 
requirements that apply to foods generally also apply to dietary 
supplements, with some exceptions (e.g., nutrition labeling).
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    Under section 403(a)(1) of the FD&C Act, a food is misbranded if 
its labeling is false or misleading in any particular (21 U.S.C. 
343(a)). Accordingly, a food would be deemed misbranded under

[[Page 96206]]

section 403(a)(1) of the FD&C Act if it has a date label that is false 
or misleading.
    The FPLA requires specific information (e.g., the net quantity of 
contents) to be provided on the label of consumer commodities, 
including food, to prevent unfair or deceptive packaging and labeling. 
The NLEA, which amended the FD&C Act, requires most foods to bear 
nutrition labeling, among other requirements. Section 403(w) of the 
FD&C Act requires foods (other than a raw agricultural commodity) that 
contain or are a major food allergen to be specifically labeled with 
the name of the allergen source.
    The Dietary Supplement Health and Education Act (DSHEA) amended the 
FD&C Act to define the term ``dietary supplement'' and establish 
requirements for dietary supplements. Under section 201(ff) of the FD&C 
Act, dietary supplements are deemed ``food'' for most purposes, and 
thus the labeling requirements that apply to foods generally also apply 
to dietary supplements, with some exceptions. For example, specific 
nutrition labeling requirements apply to dietary supplements.
    FDA regulates infant formula under the FD&C Act and FDA's 
implementing regulations, which require, among other things, that 
infant formula labels include a ``Use by'' date (21 CFR 107.20(c)). 
Accordingly, infant formula date labeling is outside the scope of this 
Request for Information.

Food Loss and Waste

    On June 12, 2024, the Biden-Harris Administration released the 
final National Strategy for Reducing Food Loss and Waste and Recycling 
Organics (the National Strategy).\2\ The National Strategy lays out a 
path for the U.S. to meet its national goal of reducing food loss and 
waste by 50 percent by 2030.
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    \2\ https://www.usda.gov/sites/default/files/documents/NATIONAL-STRATEGY-FOR-REDUCING-FOOD-LOSS-AND-WASTE-AND-RECYCLING-ORGANICS.pdf.
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    The U.S. Environmental Protection Agency (EPA) estimates that in 
2019, 66 million tons of wasted food was generated in the food retail, 
food service, and residential sectors, and most of this waste (about 60 
percent) was sent to landfills. An additional 40 million tons of wasted 
food was generated in the food and beverage manufacturing and 
processing sectors.\3\ Wasted food is the single largest category of 
material placed in municipal landfills. Wasted wholesome and safe food 
represents nourishment that could have helped feed families in need. 
Additionally, water, energy, arable land, and labor used to produce 
wasted food could have been used for other purposes. Effectively 
reducing food waste will require cooperation among federal, state, 
tribal, territory, and local governments, food manufacturers, 
agriculture producers, faith-based institutions, environmental 
organizations, communities, and others, all along the entire supply 
chain.
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    \3\ Food: Material-Specific Data [verbar] US EPA.
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    In response to the draft National Strategy for Reducing Food Loss 
and Waste and Recycling Organics, FSIS and FDA received comments 
encouraging an update of the Federal date labeling requirements, 
including standardizing date labeling. Commenters noted that food 
manufacturers use a variety of phrases such as ``Sell By,'' ``Use By,'' 
and ``Best By'' on product labels to describe dates on a voluntary 
basis. According to commenters, the use of different phrases to 
describe dates may cause consumer confusion and lead to the premature 
disposal of wholesome and safe food, because it is past the date 
printed on the package.
    As explained in the final National Strategy, both FSIS and FDA 
recommend that food industry members voluntarily apply the ``Best if 
Used By'' food date label, which notes the date after which quality may 
decline but the product may still be consumed. The ``Best if Used By'' 
label aims to lessen consumer confusion and reduce wasted food.\4\ In 
addition, the ``Best if Used By'' label was the most frequently 
perceived by consumers as communicating quality, among the food date 
labels assessed by researchers at Johns Hopkins Center for a Livable 
Future (CLF), which supports standardizing this label.\5\ Although FSIS 
and FDA encourage the use of the phrase ``Best if Used By'', current 
federal regulations do not prohibit industry from using other date 
labeling phrases, such as ``Sell By'' or ``Use By,'' if they are 
truthful and not misleading. It should be noted that industry groups 
have taken steps to address consumer confusion.\6\ However, the number, 
diversity, and complexity of food products in the marketplace along 
with significant variability in the environmental, storage, and 
distribution conditions of food create challenges for standardization 
of food safety or quality date labels.
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    \4\ See also https://www.fsis.usda.gov/food-safety/safe-food-handling-and-preparation/food-safety-basics/food-product-dating and 
https://www.fda.gov/news-events/fda-voices/working-food-industry-reduce-confusion-over-date-labels.
    \5\ Johns Hopkins Bloomberg School of Public Health. (2019). 
Survey: Misunderstanding Food Date Labels Linked with Higher Food 
Discards--Confusion about when to worry about food safety is 
widespread. https://publichealth.jhu.edu/2019/survey-misunderstanding-food-datelabels-linked-with-higher-food-discards.
    \6\ See https://www.fmi.org/docs/default-source/Industry-Topics-Doc/fact-sheet-product-code-dating-initiative.pdf?sfvrsn=59de6c6e_2.
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    FSIS and FDA are requesting additional information on industry 
practices and barriers for standardizing food date labeling, research 
results on consumer perceptions of food date labeling, and any impact 
date labeling may have on food loss and waste. The information may be 
used to inform future policy decisions, guidance, or consumer education 
campaigns on food date labels intended to help reduce the premature 
discard of wholesome and safe food. Commenters should provide any data, 
studies, or other evidence that supports their response. To help FSIS 
and FDA review comments efficiently, please identify the question to 
which you are responding by its associated category and number (e.g. 
Industry Practices and Preferences for Date Labeling 1).

Questions for Commenters

Industry Practices and Preferences for Date Labeling

    1. Which products contain date labels, and which do not? Why do 
some products contain date labels and others do not?
    2. What standards or criteria do manufacturers and producers 
consider when deciding which food date label phrase to use? Are 
different phrases used for different products or categories of 
products, and if so, why? Are there legal or trade requirements or 
marketing standards that impact which phrases are used (i.e., local or 
state requirements, industry best practice standards, etc.)? If so, 
please describe.
    3. What standards or criteria do manufacturers and producers 
consider when deciding what date to use?
    4. Would a particular product have a different date depending on 
the phrase used (e.g., would the date be the same or different if the 
phrase were ``Best if Used By'' versus ``Use By'' or ``Freeze By'')? If 
so, please explain.
    5. What challenges or limitations do food manufacturers have when 
establishing or changing food date labels?
    6. Are there costs associated with changing the date label phrase 
or date used in addition to the costs associated with any label change? 
If so, please explain what those are. What data are available on the 
use of certain food date label phrases and cost to manufacturers, 
retailers, or consumers?
    7. How do grocery retailers determine that a food item is no longer 
sellable? Do

[[Page 96207]]

the considerations differ depending on the food item? Do the 
considerations take into account the phrase and/or date on the label, 
and if so, how?

Research on Consumer Perception of Date Labeling

    8. What studies or data are available on consumer understanding of 
current date labeling on food that FSIS and FDA regulate, and why are 
these studies or data important for FSIS and FDA to consider? Are there 
data and studies that demonstrate that consumers are confused by date 
labels and believe the dates determine whether food is safe? Are there 
any available studies or data on whether and how consumers consider 
food date labels when grocery shopping or when deciding to discard food 
at the home?
    9. What data are available on the most effective ways for 
presenting food date labels on food items so that consumers can easily 
access and clearly understand the information?
    10. What studies exist on the factors that should be considered in 
a national education campaign aimed at reducing consumer confusion 
about date labels? Please explain your reasoning as to why a study 
should be considered.

Food Loss and Waste Research

    11. What studies detailing the effects of date labeling on food 
waste should FSIS and FDA consider and why?
    12. What factors do firms (e.g., manufacturers, retailers, food 
banks) and individuals consider when determining which food items to 
donate or discard? Specifically, do firms or individuals use food date 
labels to inform decisions to donate or discard food items? Please 
provide supporting studies or data.
    13. What estimates are available concerning the value of food that 
is discarded due to date labels, including any studies regarding the 
value discarded due to confusion of date labels?

Additional Public Notification

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

USDA Non-Discrimination Statement

    In accordance with Federal civil rights law and USDA civil rights 
regulations and policies, USDA, its Mission Areas, agencies, staff 
offices, employees, and institutions participating in or administering 
USDA programs are prohibited from discriminating based on race, color, 
national origin, religion, sex, gender identity (including gender 
expression), sexual orientation, disability, age, marital status, 
family/parental status, income derived from a public assistance 
program, political beliefs, or reprisal or retaliation for prior civil 
rights activity, in any program or activity conducted or funded by USDA 
(not all bases apply to all programs). Remedies and complaint filing 
deadlines vary by program or incident. Program information may be made 
available in languages other than English. Persons with disabilities 
who require alternative means of communication to obtain program 
information (e.g., Braille, large print, audiotape, American Sign 
Language) should contact the responsible Mission Area, agency, or staff 
office; the USDA TARGET Center at (202) 720-2600 (voice and TTY); or 
the Federal Relay Service at (800) 877-8339.
    To file a program discrimination complaint, a complainant should 
complete Form AD-3027, USDA Program Discrimination Complaint Form, 
which can be obtained online at https://www.usda.gov/forms/electronic-forms, from any USDA office, by calling (866) 632-9992, or by writing a 
letter addressed to USDA. The letter must contain the complainant's 
name, address, telephone number, and a written description of the 
alleged discriminatory action in sufficient detail to inform the 
Assistant Secretary for Civil Rights (ASCR) about the nature and date 
of an alleged civil rights violation. The completed AD-3027 form or 
letter must be submitted to USDA by:
    (1) Mail: U.S. Department of Agriculture, Office of the Assistant 
Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 
20250-9410; or
    (2) Fax: (833) 256-1665 or (202) 690-7442; or
    (3) Email: [email protected].
    USDA is an equal opportunity provider, employer, and lender.

    Done at Washington, DC.
Paul Kiecker,
Administrator.
Kimberlee Trzeciak,
Deputy Commissioner for Policy, Legislation, and International Affairs, 
Food and Drug Administration.
[FR Doc. 2024-27810 Filed 12-3-24; 8:45 am]
BILLING CODE 3410-DM-P