Op-Ed

Is that milk past its 'sell by' date? Drink it anyway.

My father used to keep food in the refrigerator for days, even weeks after the “best by” date, so long as it looked and smelled OK. My mom, by contrast, went out to buy a new carton of milk as soon as the date passed. Often there would be two containers of milk in our refrigerator: the half-empty one my dad was committed to finishing, and the new one my mom had purchased, out of fear that she might get sick if she drank my dad's past-date milk.

Scenes such as this play out in households across the country. One person dutifully follows best-by, sell-by and use-by date labels on packaged and processed food while another jeers at them. According to one study, more than 90% of consumers report throwing away past-date food because of food safety fears. But the truth is that these dates are not intended to communicate safety information. Instead, they signal a manufacturer's estimate of how long food will taste its best. Sometimes the dates are set based on consumer taste tests, but often they're just a guess.

In 2013, the Harvard Food Law and Policy Clinic and the Natural Resources Defense Council published a report, “The Dating Game,” that tied food waste to date labels, and revealed that the dates are not federally regulated and do not indicate food safety. The Food and Drug Administration, which has the power to regulate date labels, has chosen not to, precisely because they are not related to safety. Food scientists say that not a single food safety outbreak in the U.S. has been traced to a food being consumed past date. (What are outbreaks traced to? Generally, to pathogens that may have contaminated the food during processing, or to “temperature abuse” such as leaving raw chicken in a hot car, or to air exposure that encourages mold. These are not problems that date labels currently address.)

In the absence of federal labeling rules, states have stepped in. The variation in state laws is dramatic, providing further evidence that date labels are not related to safety. New York, for example, does not require dates on any food products. By contrast, Massachusetts requires dates on all perishable and semi-perishable foods and heavily restricts sale or donation after that date. A past-date carton of orange juice would be legal to sell in New York, but just across the border in Massachusetts the same, safe juice would generally wind up in the trash.

Milk is the product with the most inconsistent labeling, state to state. Milk sold in stores is generally pasteurized, a process that kills harmful pathogens and eliminates the risk of food-borne illness, even after the sell-by or use-by date. Although the modern industry standard for milk quality dating is 21 to 24 days after pasteurization (and again, milk will still be safe after that), some states impose much stricter time limitations. Montana, for example, requires that milk bear a date of 12 days after pasteurization. Even worse, Montana bans the sale or donation of milk after that date, which wastes countless gallons of good milk.

Between the lack of knowledge about the meaning of date labels and their lack of uniformity, consumer confusion is pervasive. We need a federal standard. Congress should simplify date labels to two well-defined options: a quality date and, in the very few cases where it's applicable, a safety date. The list for the latter is small — mostly ready-to-eat foods such as deli meats and unpasteurized cheeses that, if they were contaminated before you bought them, could become more risky over time. For all other food products, manufacturers and packagers would have the option of including a quality date. The standard, national format for quality would be “Best if used by ______”; for safety: “Expires on ______.”

Regulating date labels in this way would help consumers make better decisions. It would also be a win for food companies, which struggle to comply with 50 different date labeling laws and lose $1 billion each year from food that “expires” before it is sold. Sen. Richard Blumenthal (D-Conn.) will introduce legislation to standardize date labels in the Senate this month. In the House, Rep. Chellie Pingree (D-Maine) has already introduced a comprehensive food waste bill that includes date-label regulation.

Date label confusion harms consumers and food companies, and it wastes massive amounts of food, which harms the planet. The U.S. wastes 160 billion pounds of food, or nearly 40% of food produced in this country, annually. Twenty-five percent of our freshwater is used to grow food we throw away. What gets tossed out goes into landfills, releasing hazardous methane into an already stressed atmosphere. Making date labels clear and uniform offers a relatively low-cost way to eliminate confusion and save consumers money, and it would make a big dent in the unnecessary waste of wholesome food.

Emily Broad Leib is director of the Harvard Law School Food Law and Policy Clinic and executive producer of the documentary "EXPIRED? Food Waste in America."

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