[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]




                     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


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]





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                        COMMITTEE ON AGRICULTURE

                  K. MICHAEL CONAWAY, Texas, Chairman

RANDY NEUGEBAUER, Texas,             COLLIN C. PETERSON, Minnesota, 
    Vice Chairman                    Ranking Minority Member
BOB GOODLATTE, Virginia              DAVID SCOTT, Georgia
FRANK D. LUCAS, Oklahoma             JIM COSTA, California
STEVE KING, Iowa                     TIMOTHY J. WALZ, Minnesota
MIKE ROGERS, Alabama                 MARCIA L. FUDGE, Ohio
GLENN THOMPSON, Pennsylvania         JAMES P. McGOVERN, Massachusetts
BOB GIBBS, Ohio                      SUZAN K. DelBENE, Washington
AUSTIN SCOTT, Georgia                FILEMON VELA, Texas
ERIC A. ``RICK'' CRAWFORD, Arkansas  MICHELLE LUJAN GRISHAM, New Mexico
SCOTT DesJARLAIS, Tennessee          ANN M. KUSTER, New Hampshire
CHRISTOPHER P. GIBSON, New York      RICHARD M. NOLAN, Minnesota
VICKY HARTZLER, Missouri             CHERI BUSTOS, Illinois
DAN BENISHEK, Michigan               SEAN PATRICK MALONEY, New York
JEFF DENHAM, California              ANN KIRKPATRICK, Arizona
DOUG LaMALFA, California             PETE AGUILAR, California
RODNEY DAVIS, Illinois               STACEY E. PLASKETT, Virgin Islands
TED S. YOHO, Florida                 ALMA S. ADAMS, North Carolina
JACKIE WALORSKI, Indiana             GWEN GRAHAM, Florida
RICK W. ALLEN, Georgia               BRAD ASHFORD, Nebraska
MIKE BOST, Illinois
DAVID ROUZER, North Carolina
RALPH LEE ABRAHAM, Louisiana
JOHN R. MOOLENAAR, Michigan
DAN NEWHOUSE, Washington
TRENT KELLY, Mississippi

                                 ______

                    Scott C. Graves, Staff Director

                Robert L. Larew, Minority Staff Director

                                  (ii)
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                                  
                             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
 
                     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 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 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 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 
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\ 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. 

          (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\
---------------------------------------------------------------------------
    \2\ The 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)].
---------------------------------------------------------------------------
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. 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).
---------------------------------------------------------------------------
    \3\ See 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).
    \4\ For 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.
---------------------------------------------------------------------------
    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 criminal 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.
---------------------------------------------------------------------------
    \5\ See Medtronic, Inc., 518 U.S. at 485 [116 S. Ct. at 2250]; 
Rice, 331 U.S. at 230.

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.
    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.
    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 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 common-sense 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.
    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 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 food-insecure 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.
    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\
---------------------------------------------------------------------------
    \1\ K.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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 entire diet for the 48 million food-
insecure Americans, if only it could be distributed properly.\5\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \6\ ReFED, ``A Roadmap to Reduce U.S. Food Waste by 20 Percent.'' 
March 2016. www.refed.com.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \7\ United Nations Food and Agriculture Organization, ``Food 
Wastage Footprint: Impacts on Natural Resources'' 2013. http://
www.fao.org/docrep/018/i3347e/i3347e.pdf.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
    \9\ Lipinski, 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \10\ K.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.
---------------------------------------------------------------------------
    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.
Figure 1: EPA's Food Recovery Hierarch


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    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\
---------------------------------------------------------------------------
    \11\ D.C. Love, et al. ``Wasted Seafood in the United States: From 
Net to Plate''. Global Environmental Change 35 (2015) 116-124.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    * 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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \12\ Claire Cummings, Bon Appetit Management Company (Compass 
Subsidiary), e-mail correspondence, January 20, 2016.

   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\
---------------------------------------------------------------------------
    \13\ SeaShare website, About page: https://www.seashare.org/about.

   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\
---------------------------------------------------------------------------
    \14\ Andrew Shakman, CEO, LeanPath, e-mail correspondence, May 21, 
2016.

   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\
---------------------------------------------------------------------------
    \15\ Anna Vinogradova, Senior Manager of Sustainability, Wal-Mart, 
e-mail correspondence, March 17, 2016.

   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\
---------------------------------------------------------------------------
    \16\ WRAP UK, ``Household Food and Drink in the UK 2012'' http://
www.wrap.org.uk/content/household-food-and-drink-waste-uk-2012.
    \17\ Parry, Andrew, ``Reduction in household food & drink waste--
Estimating the influence of WRAP and its partners.'' 2011.
---------------------------------------------------------------------------
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 
individuals 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.
---------------------------------------------------------------------------
    \18\ Food Marketing Institute, ``U.S. Grocery Shoppers Trends 
2014'', p. 135.
---------------------------------------------------------------------------
    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.
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 economic 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 public-private 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:]

 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 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 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 public-private 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. 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/.
---------------------------------------------------------------------------
    * 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.
---------------------------------------------------------------------------
                              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, 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,
        
        
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
            
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:


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          * 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.


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      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.
         
         
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      Manufacturers: Reduce inefficiencies in manufacturing processes 
            while collaborating with retailers on Packaging Adjustments 
            and Standardized Date Labeling.
            
            
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      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.
            
            
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      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.
            
            
            
            
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      Federal Government: Create jobs and alleviate hunger by retaining 
            and expanding food Donation Tax Incentives, and consider 
            national Standardized Date Labeling legislation.
            
            
            
            
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      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.
            
            
            
            
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      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.
            
            
            
            
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      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.

                          Food Waste Solutions
------------------------------------------------------------------------
                                                   Priority Food Waste
        Type                  Category                  Solutions
------------------------------------------------------------------------
Prevention           1. Packaging, Product,      Standardized
                      and Portions               Date Labeling
                                                 Produce
                                                 Specifications
                                                 (Imperfect Produce)
                                                 Packaging
                                                 Adjustments
                                                 Spoilage
                                                 Prevention Packaging
                                                 Smaller Plates
                                                 Trayless Dining
                     2. Operational and Supply   Waste Tracking
                      Chain Efficiency           & 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                 Donation
                      Infrastructure             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         In-Vessel
                      Processing                 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.
Marginal Food Waste Abatement Cost Curve 




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          * 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)



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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.




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      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.
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      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.
            
            
            
            
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      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.
            
            
            
            
            
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      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.

------------------------------------------------------------------------
 
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                             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 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:

   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 high-risk 
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



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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 
employee 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.
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 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.



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          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.



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                        FarmersDSeek 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.
            
            
            
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                        ManufacturersDExpand 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.
            
            
            
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                        Restaurants & FoodserviceDSave 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 all-you-can-eat facilities
            
            
            
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                        Grocery RetailersDIncrease 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.
            
            
            
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                        Federal GovernmentDCost-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).
            
            
            
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                        State And Local GovernmentsDPursue 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.



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                        FoundationsDProvide 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
            
            
            
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                        InvestorsDGenerate 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.
    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 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 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 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.
    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-a-
ferdman) January 13, 2016 



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          (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 once-struggling carrot industry, 
but they also helped both curb waste on the farm and sell the Vitamin 
A-filled vegetables at the supermarkets.
How Different Fruits and Vegetables Used To Be


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          http://www.washingtonpost.com/video/c/embed/3ab3e70c-1c3d-
        11e6-82c2-a7dcb313287d.*
---------------------------------------------------------------------------
    * Editor's note: the video has been retained in Committee files.
---------------------------------------------------------------------------
          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 Sun-Times. ``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.
The Baby Carrot Boom
Per Capita Consumption of Carrots in the 12 Years After the Baby Carrot 
        Was Invented
        
        
        
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
          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 bite-sized 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-ceo-of-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.''
    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.
    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:]

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 recent 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



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          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.
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! 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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          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.
    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.
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.
    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 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ Jensen, A., Rabbitt, M., Gregory, C., Singh, A. Household Food 
Insecurity in the United States in 2014. USDA Economic Research 
Service, September 2015.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \3\ Map the Meal Gap looks at food insecurity by county across 
America and the amount of meals missing from food-insecure Americans 
households.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \7\ Weinfield, N.S., Mills, G., Borger, C., Geaing, M., Macaluso, 
T., Montaquila, J., Zedlewski, S. (2014) Hunger In America 2014.
---------------------------------------------------------------------------
    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. 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 potential 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.
    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 Wal-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:]

  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.
---------------------------------------------------------------------------
    \1\ Mark 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.
    \4\ Kevin 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \5\ The Food Recovery Hierarchy, U.S. Envtl. Prot. Agency, https://
www.epa.gov/sustainable-management-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.
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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.
---------------------------------------------------------------------------
    \7\  ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 12 
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
---------------------------------------------------------------------------
    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 ``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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
    \11\ See, 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).
---------------------------------------------------------------------------
Figure 1: State Requiring Date Labels on At Least Some Food Products
States Requiring Date Labels on At Least Some Food Products
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    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\
---------------------------------------------------------------------------
    \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.
    \14\ See, e.g., 105 Mass. Code Regs. 520.119(f) (2016); Or. Rev. 
Stat.  616.825 (2016).
    \15\ Mont. Admin. R. 32.8.202 (2016).
---------------------------------------------------------------------------
Figure 2: States Regulating Food Sales Past some Label Dates
States Regulating Food Sales Past Some Label Dates
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    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 quality-based methods to 
determine these dates, including consumer taste tests, literature 
values, product turnover rates, or consumer complaints.\16\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \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_May-2016.pdf.
    \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_May-2016.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.).
---------------------------------------------------------------------------
    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-to-eat 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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \24\ 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).
    \25\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33 
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
---------------------------------------------------------------------------
    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.
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \28\ H.R. 2029, 114th Cong.  113(a) (2015) (to be codified at 
I.R.C.  170(e)(3)(C)).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \29\ Food 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.
    \30\ Food 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.
---------------------------------------------------------------------------
    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\
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    \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).
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    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 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.
---------------------------------------------------------------------------
    \35\ See, 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.
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    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.
---------------------------------------------------------------------------
    \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).
    \39\ Food 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \40\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33 
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \41\ About the Conference, Conference for Food Protection, http://
www.foodprotect.org/about/ (last visited Apr. 26, 2016).
    \42\ FDA 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).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \43\ Food Recovery Committee, Conference for Food Protection, 
Comprehensive Guidelines for Food Recovery Programs 6 (2000), http://
www.foodprotect.org/media/guide/food-recovery-final2007.pdf.
    \44\ Food Recovery Committee, Conference for Food Protection, 
Comprehensive Guidelines for Food Recovery Programs 6 (2000), http://
www.foodprotect.org/media/guide/food-recovery-final2007.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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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),
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \49\ See, 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/.
---------------------------------------------------------------------------
    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 have the 
potential to divert 167,000 tons of food waste per year and provide 
$36.4 million per year in economic value.\51\
---------------------------------------------------------------------------
    \50\ Serri 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).
    \51\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33 
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \52\ 42 U.S.C.A.  1791(b)(3) (West 2016).
    \53\ Mass. Gen. Laws ANN. 94  328 (West 2016).
    \54\ Or. Rev. Stat. Ann.  30.890 (West 2016).
    \55\ 42 U.S.C.A.  1791(c)(1) (West 2015).
---------------------------------------------------------------------------
    The Emerson Act was enacted to encourage food donations; however, 
the ``no-charge'' 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.
---------------------------------------------------------------------------
    \56\ I.R.C.  170(e)(3)(A)(ii) (2016).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \57\ Feeding America, Food Banks: Hunger's New Staple: Preliminary 
Findings 3 (2011), 
http://feedingamerica.org/hunger-in-america/hunger-studies//media/
hunger-new-staple-exec-summ.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.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \59\ ReFED, A Roadmap to Reduce U.S. Food Waste by 20 Percent 33 
(2016), http://www.refed.com/downloads/ReFED_Report_2016.pdf.
    \60\ Dana Gunders, Nat. Res. Def. Council, Wasted: How America Is 
Losing Up to 40% of Its Food from Farm to Fork to Landfill 8 (2012).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \61\ See, 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).
    \62\ See, 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 
average $12,000 annually for packing costs).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \63\ Telephone 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).
    \64\ See, 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \65\ I.R.C.  170(e)(3)(B) (2015).
---------------------------------------------------------------------------
    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 the enhanced tax deduction over time 
to determine if further changes need to be made to encourage food 
donations.
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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.)
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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&sectionNum=17053.12.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \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.
    \76\ Dana Gunders, Natural Resources Def. Council, Wasted: How 
America is Losing Up to 40% of its Food From Farm to Fork to Landfill 4 
(2012).
---------------------------------------------------------------------------
                              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.
84% of Consumers At Least Occasionally Discard Food Close To Or Past 
        the Date on Its Package
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
    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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

    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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    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?
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
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-labels-and-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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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, 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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          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 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 safe-
              ty-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 par-
              ticular meaning across the country and across products; 
            (2) be unambiguous
              in the information they convey; and (3) clearly delineate 
            between safety-
              based and quality-based dates.

       Include ``freeze by'' dates and freezing information 
            where applica-
              ble: 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 ex-
              tend shelf life.

       Remove or replace quality-based dates on 
            nonperishable, shelf-sta-
              ble products: Removing ``best before'' or other quality 
            dates from shelf-sta-
              ble, 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 use-
              ful, 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., ``Max-
              imum 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 in-
              formation on packages, perhaps through the use of a 
            standard ``safe han-
              dling'' information box, akin to the Nutrition Facts 
            panel. 
            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
            

       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.

  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 stand-
              ardized, easily understandable consumer-facing dating 
            system; and pro-
              viding 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 han-
              dling.

  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\ 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 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 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.
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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\
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    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.
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            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 deceptive 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.
    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 **
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          * 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 
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\

          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, 
``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\
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Figure 3: States Regulating Food Sales Past Some Label Dates 
        128-129
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        

                                                     Figure 4: States Regulating Date Labeling \130\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Potentially
           State            Perishable Foods   Hazardous Foods     Milk/Dairy       Meat/ Poultry       Shellfish           Eggs              Other
                                  \131\             \132\
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 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 pre-wrapped 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\
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          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 
considered 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\
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    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 shelf-life 
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 shelf-life 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, 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\
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          * ``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.''
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\
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    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 conditions, 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 bacterium 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 safety-based ``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\
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    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 ready-to-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 ready-to-eat category.
    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 facili-
ties . . . 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 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 end-users 
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.
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    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 safety-based 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.

      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 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 resources 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.

   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.

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).

    (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, 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).

    (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 . . .

                                                         Appendix B: State Requirements in Brief; Supporting Charts for Figures 2 and 3
                                                                                  Supporting Chart for Figure 2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                Date Labels         Foods for Which Date Is                                                      Date Labels         Foods for Which Date Is
         State            No  Requirement        Required                   Required                      State            No  Requirement        Required                   Required
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama                                 X                                                        Nevada                                                      X   Milk; potentially hazardous
Alaska                                                      X   Shellfish                                                                                         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;           Oklahoma                                                    X   Eggs; shellfish
                                                                 prepackaged sandwiches
Hawaii                                                      X   Milk                             Oregon                                                      X   Packaged perishable foods
Idaho                                   X
Illinois                                X                                                        Pennsylvania                                                X   Milk/dairy; shellfish
Indiana                                                     X   Eggs; shellfish                  Rhode Island                                                X   Packaged bakery products;
Iowa                                                        X   Eggs                                                                                              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-     Vermont                                                     X   Shellfish
                                                                 perishable foods
Michigan                                                    X   Pre-packaged perishable foods;   Virginia                                                    X   Dairy; shellfish
                                                                 milk/dairy
Minnesota                                                   X   Eggs; perishable foods;          Washington                                                  X   Packaged perishable foods
                                                                 shellfish
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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Past-Date Sales   Foods For Which Sale After Date                                                Past-Date Sales   Foods For Which Sale After Date
         State             No Regulation         Regulated               Is Restricted                    State             No Regulation         Regulated               Is Restricted
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama                                                     X   Meat, Class A foods (baby food,  Nevada                                  X                       Potentially hazardous foods
Alaska                                  X                        infant formula, 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,            Oklahoma                                X
                                                                 shellfish, milk, potentially
                                                                 hazardous foods, pre-packaged
                                                                 sandwiches
Hawaii                                  X                                                        Oregon                                                      X   Packaged perishable foods
Idaho                                   X
Illinois                                                    X   Eggs                             Pennsylvania                                                X   Milk
Indiana                                 X                                                        Rhode Island                                                X   Packaged bakery products
Iowa                                    X
Kansas                                  X                                                        South Carolina                          X
Kentucky                                                    X   Milk/milk products               South Dakota                            X
Louisiana                               X                                                        Tennessee                               X
Maine                                   X                                                        Texas                                   X
Maryland                                                    X   Milk                             Utah                                    X
Massachusetts                                               X   All food products (special       Vermont                                 X
                                                                 focus on perishable and semi-
                                                                 perishable foods)
Michigan                                                    X   Pre-packaged perishable foods,   Virginia                                                    X   Dairy
                                                                 meat, milk/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.
 


                                                             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    Ala. Admin. Code r.
                                                              mean food is not intended to be used or sold after the date limit, or   420-3-22.01
                                                              that food quality is best before the date limit, and includes but is    (2013).
                                                              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.
                      Definition (open-date statement)           (14) Open-date statement. Terms ``Sell By''; ``Freeze By''; ``Sell  Ala. Code  20-1-20
                                                              or Freeze By''; ``Not to be Sold After''; ``Best if Used By'';          (2013).
                                                              ``Expiration''; or other terms as defined by rules or regulations; or
                                                              a date without additional words shall be considered an open-date
                                                              statement
                      Additional descriptive terms (open-        (1) In addition to the terms listed in  20-1-20 (definitions) for  Ala. Admin. Code r.
                       date statement)                        (14) open date statements, the following list of terms and other        80-1-22-.33
                                                              terms with similar import, shall also be included and considered as     (2013).
                                                              open date statements:
 
                                                                   (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              No person shall engage in any of the following activities within    Ala. Code  20-1-27
                       permitted                              this state: . . .                                                       (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).
                                                                 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       Ala. Code  20-1-20
                                                              hazardous food.                                                         (2013).
                      Date labeling not required                 Date labeling not required for Class A food products in Alabama     No relevant state
                                                              (with the exception of infant formula, which is federally               law.
                                                              regulated).\1\
                      Sale after date not permitted              No person shall engage in any of the following activities within    Ala. Code  20-1-27
                                                              this state: . . . (2) Sell or offer for sale out-of-date Class A        (2013).
                                                              foods which include baby food, infant formula, and potentially
                                                              hazardous food.
                      Alteration of date labels not              (1) Packages of potentially hazardous foods bearing an open date    Ala. Admin. Code r.
                       permitted (potentially hazardous       statement are not to be repacked or relabeled or otherwise altered in   80-1-22-.36
                       foods)                                 a manner that would change the open date statement originally placed    (2013).
                                                              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.
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    Ala. Admin. Code r.
                                                              ready-to-eat meat product after the expiration of the open-date         80-1-22-.36
                                                              statement. It is not permissible to freeze, sell, or offer for sale a   (2013).
                                                              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.
                      Sale after date not permitted--            (3) Any rule in this chapter to the contrary not withstanding,      Ala. Admin. Code r.
                       exemptions                             meat products bearing an open-date statement may be frozen and sold     80-1-22-.36
                                                              after the original expiration date only if all the following            (2013).
                                                              stipulations are met:
 
                                                                   (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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Alaska
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish             Date labeling required                     (c) In addition to meeting the requirements of (a) and (b) of this  Alaska Admin. Code
                                                              section, the operator of a food establishment shall obtain . . . (6)    tit. 18,  31.200
                                                              molluscan shellfish that are . . . packaged and identified as           (2013).
                                                              follows:
 
                                                                   (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        Ariz. Rev. Stat.
                                                              thru'' followed by a date, including the month and day, that is not     Ann.  3-701
                                                              more than twenty-four days after the eggs were candled and that         (2013).
                                                              includes the date the eggs were candled.
                      Date labeling required                     E. Cases, half cases, cartons or containers marked grade AA or      Ariz. Rev. Stat.
                                                              grade A shall be marked with an expiration date.                        Ann.  3-719
                                                                 F. The expiration date marked on a case, half case or container      (2013).
                                                              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.
                      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        Ark. Code Ann. 
                                                              packages which bear a legible label that identifies the: . . . (2)      007-04-8 3-202.17
                                                              The ``sell by'' or ``best used by'' date for packages with a capacity   (2013).
                                                              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
                      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    Cal. Food & Agric.
                                                              upon the package or container of such product the date established by   Code  36004
                                                              the processor as the date upon which, in order to insure quality,       (2013).
                                                              such product is normally removed from the shelf
                      Date labeling required (scope of law)      (a) Except as otherwise provided in Food and Agricultural Code      Cal. Code Regs.
                                                              Section 36004(c), the licensed milk products plant which bottles or     tit. III,  627
                                                              packages the following products shall be responsible for affixing the   (2013).
                                                              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.
                      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        Cal. Health &
                                                              packages that bear a legible label that identifies . . . a ``sell       Safety Code 
                                                              by'' date or a ``best if used by'' date for packages with a capacity    114039 (2013).
                                                              of less than \1/2\ gallon, or the date shucked for packages with a
                                                              capacity of \1/2\ gallon or more.
                      Sale after date not restricted         Not restricted for shellfish in California.                             No relevant state
                                                                                                                                      law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Colorado
--------------------------------------------------------------------------------------------------------------------------------------------------------
General               Alteration of date labels not              A. When voluntary code date information appears on a retail food    6 Colo. Code Regs.
                       permitted                              establishment or manufacturers' label, it shall not be concealed or      1010-2:3-701
                                                              altered.                                                                (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             3.3  SELL-BY DATE REQUIREMENTS                                      8 Colo. Code Regs.
                       (formatting specified if used)                                                                                  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     8 Colo. Code Regs.
                                                              restaurant more than 45 days after the pack date.                        1202-10:4.0
                                                                                                                                      (2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Connecticut *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk/Dairy            Date labeling required                     Each person, handler, firm or corporation shall clearly mark each   Conn. Gen. Stat.
                                                              container of milk or milk product, cream, yogurt, cream cheese,         Ann.  22-197b
                                                              cottage cheese, ricotta cheese, soft cheese, eggnog or sour cream       (2013).
                                                              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.
                                                                 (b) Products not manufactured, packaged and heat treated in a       Conn. Agencies
                                                              manner that makes the product safe to store at room temperature shall   Regs.  22-133-131
                                                              be conspicuously labeled with a last sale date. The last sale date      (2013).
                                                              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''.
                      Alteration of date labels not              (f)                                                                 Conn. Agencies
                       permitted                                                                                                      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        4000 Del. Admin.
                                                              packages which bear: . . . (2) The ``sell by'' date for packages with   Code  3-202.17
                                                              a capacity of less than 1.87 L (\1/2\ gallon) or the date shucked for   (2013).
                                                              packages with a capacity of 1.87 L (\1/2\ gallon) or more.
                      Sale after date not restricted         Not restricted for shellfish in Delaware.                               No relevant state
                                                                                                                                      law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Florida
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish             Definition (terminal sale date)            (65) Terminal sale date--the last day freshly packed shellfish      Fla. Admin. Code
                                                              shall be offered for sale; that being no more than 14 calendar days     Ann. r. 5L-1.002
                                                              subsequent to the date the product was shucked, or for oyster           (2013).
                                                              shellstock harvested from the Gulf of Mexico, no more than 14 days
                                                              subsequent to the date shellstock was harvested.
                      Date labeling required                     (1) . . . Containers of fresh shellfish, with a capacity of less    Fla. Admin. Code
                                                              than 64 ounces, shall further clearly and permanently bear the          Ann. r. 5L-1.007
                                                              terminal sale date, by the numerical month, day, and last digit of      (2013).
                                                              the year.
                      Sale after date not permitted              (11) It shall be unlawful for any person, firm, corporation,        Fla. Admin. Code
                                                              wholesale or retail dealer to sell or offer for sale any fresh          Ann. r. 5L-1.007
                                                              shellfish after the terminal sale date has expired, or sell or offer    (2013).
                                                              for sale any fresh, frozen, or previously frozen shellfish not in
                                                              compliance with any and all requirements of Chapter 5L-1, F.A.C.
Milk/Dairy            Date labeling required                     (1)(a) All milk and milk products shall be legibly labeled with     Fla. Admin. Code
                                                              their shelf-life date. The date or date code for frozen desserts and    Ann. r. 5D-1.007
                                                              other manufactured milk products shall be approved by the department    (2013).
                                                              and shall indicate the date of manufacture of the product or the last
                                                              day the product is to be offered for sale.
                      Sale after date not permitted              (1)(e) No milk or milk products shall be offered for sale as a      Fla. Admin. Code
                                                              grade A product after the shelf-life expiration date shown on the       Ann r. 5D-1.007
                                                              container. All milk and milk products offered for sale after the        (2013).
                                                              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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Georgia
--------------------------------------------------------------------------------------------------------------------------------------------------------
General               Definition (expiration date)               (35) ``Expiration Date'' is synonymous with Pull Date, Best-By      Ga. Comp. R. &
                                                              Date, Best Before Date, Use-By Date, and Sell-By Date; and means the    Regs. 40-7-1-.02
                                                              last date on which the following FOOD products can be sold at retail    (2013).
                                                              or wholesale:
                                                                   (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      Ga. Comp. R. &
                                                              retail or wholesale shall use an Open Date to express the packing       Regs. 40-3-1.01
                                                              date or the expiration date . . . (d) Manner of Expressing the          (2013).
                                                              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.
                      Sale after date not permitted              (e) Prohibited Acts: The following acts and the causing thereof     Ga. Comp. R. &
                                                              are hereby prohibited.                                                  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            Ga. Comp. R. &
                                                              EXPIRATION DATE, according to Departmental Rules Chapter 40-3-1-        Regs. 40-7-1-.2
                                                              .01(e)1.                                                                (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     Ga. Comp. R. &
                                                              sale, at retail or wholesale, the following food items past the         Regs. 40-7-1-.26
                                                              EXPIRATION DATE stated on the label:                                    (2013).
                                                                   (a) Infant Formula.
Milk                  Date labeling required                     (2) All containers of milk and milk products shall be clearly       Ga. Comp. R. &
                                                              marked with a Sell By Date with the exception of frozen desserts and    Regs. 40-2-3-.01
                                                              some shelf stable products where processing codes may be required.      (2013).
                      Sale after date not permitted/             (35) ``Expiration Date'' is synonymous with Pull Date, Best-By      Ga. Comp. R. &
                       Definition (expiration date)           Date, Best Before Date, Use-By Date, and Sell-By Date; and means the    Regs. 40-7-1-.02
                                                              last date on which the following FOOD products can be sold at retail    (2013).
                                                              or whole-
                                                               sale: . . . (e) Milk
Shellfish             Date labeling required                     (8)(c)(a) Raw and frozen shucked molluscan shellfish shall be       Ga. Comp. R. &
                                                              obtained in nonreturnable packages legibly bearing . . . the ``sell     Regs. 40-7-1-.10
                                                              by'' date for packages with a capacity of less than l.87 L (\1/2\       (2013).
                                                              gallon) or the date shucked for packages with a capacity of l.87 L
                                                              (\1/2\ gallon) or more.
                      Sale after date not permitted/             (35) ``Expiration Date'' is synonymous with Pull Date, Best-By      Ga. Comp. R. &
                       Definition (expiration date)           Date, Best Before Date, Use-By Date, and Sell-By Date; and means the    Regs. 40-7-1-.02
                                                              last date on which the following FOOD products can be sold at retail    (2013).
                                                              or wholesale: . . . (d) Shucked oysters
Prepackaged           Date labeling required                     (2)(b) Prepackaged Sandwiches.                                      Ga. Comp. R. &
 Sandwiches                                                                                                                           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     Ga. Comp. R. &
                                                              sale, at retail or wholesale, the following food items past the         Regs. 40-7-1-.26
                                                              EXPIRATION DATE stated on the label: [. . .] (b) Prepackaged            (2013).
                                                              Sandwiches. For the purpose of this section, prePACKAGED sandwiches
                                                              shall be classified as Type A, Type B or Type C.
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                                                                         Hawaii
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk                  Date labeling required                     Every container of processed milk and milk product held in retail   Haw. Code R.  11-
                                                              and wholesale stores, restaurants, schools, or similar establishments   15-39 (2013).
                                                              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.
                      Sale after date not restricted         Not restricted for milk in Hawaii.                                      No relevant state
                                                                                                                                      law.
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                                                                          Idaho
--------------------------------------------------------------------------------------------------------------------------------------------------------
----                  ----                                   ----                                                                    ----
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Illinois
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs                  Date labeling optional                     (d) . . . it shall be allowable to include expiration dates in the  Ill. Admin. Code
                                                              labeling of consumer-size containers at retail. An expiration date,     tit. 8,  65.30
                                                              or other similar language as specified by USDA standards, that is not   (2013).
                                                              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.
                      Sale after date not permitted              (d) . . . Eggs with an expiration date marked on the container      Ill. Admin. Code
                                                              shall not be offered for sale or sold to a consumer after the date      tit. 8,  65.30
                                                              marked on the container.                                                (2013).
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                                                                         Indiana
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs                  Date labeling required                     Sec. 2. All eggs offered for sale in consumer packages (cases,      370 Ind. Admin.
                                                              boxes, baskets, or containers):                                         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             410 Ind. Admin.
                                                              nonreturnable packages that bear a legible label that identifies the    Code 7-24-156
                                                              . . . ``sell by'' date for packages with a capacity of less than one-   (2013).
                                                              half (\1/2\) gallon or the date shucked for packages with a capacity
                                                              of one-half (\1/2\) gallon or more.
                      Sale after date not restricted         Not restricted for shellfish in Indiana.                                No relevant state
                                                                                                                                      law.
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                                                                          Iowa
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eggs                  Date labeling required                     (2) Each carton containing eggs for retail sale in Iowa which have  Iowa Admin. Code r.
                                                              been candled and graded shall be marked with:                           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      Kan. Stat. Ann.  2-
                                                              information: . . . (6) the expiration date which shall be preceded by   2509 (2013).
                                                              ``exp,'' ``sell by,'' ``use by'' or similar language.
                      Sale after date not restricted         Not restricted for eggs in Kansas.                                      No relevant state
                                                                                                                                      law.
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                                                                        Kentucky
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk/Milk Products    Definition (Open date)                     Section 1. (29) ``Open date'' means the date which shall be         902 Ky. Admin.
                                                              affixed on a consumer package or container of Grade A pasteurized       Regs. 50:010
                                                              milk or milk products subsequent to the date of manufacturing,          (2013).
                                                              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.
                      Date labeling required                     Section 1. Open Date Required. No person shall sell or offer for    902 Ky. Admin.
                                                              sale any Grade A pasteurized milk or milk product in this state in a    Regs. 50:080
                                                              consumer package that does not bear the open date as required by this   (2013).
                                                              administrative regulation.
                      Sale after date not permitted              Section 4. Enforcement. If a product is not sold within the period  902 Ky. Admin.
                                                              specified in the open date, the cabinet shall take action to remedy     Regs. 50:080
                                                              the condition consistent with this administrative regulation by         (2013).
                                                              removing the product from consumer channels and causing the product
                                                              to be returned to the milk plant of origin for destruction.
Shellfish             Date labeling required                     Section 9. (4) The certified shellfish dealer shall assure that     902 Ky. Admin.
                                                              each package containing less than sixty-four (64) fluid ounces of       Regs. 45:020
                                                              fresh or frozen shellfish shall have:                                   (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    La. Admin. Code
                                                              the following:                                                          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.
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                                                                          Maine
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish             Date labeling required                     A. Each individual package containing fresh or fresh frozen         13-188 Me. Code R.
                                                              shucked shellfish meat shall bear a permanent printed label approved     15.21 (2013).
                                                              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:
 
                                                                   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.
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                                                                        Maryland
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk (Grade A)        Date labeling required                     B. A permittee shall conspicuously and legibly mark the cap or non- Md. Code Regs.
                                                              glass container of Grade A fluid milk with the words ``Sell by'',       10.15.06.10
                                                              followed by the designation of the month and the day of the month       (2013).
                                                              after which the product may not be sold, delivered, or offered for
                                                              sale.
                      Sale after date not permitted (with        A. Except as provided in  B of this regulation, a person may not   Md. Code Regs.
                       exemptions)                            offer Grade A fluid milk for sale beyond the sell-by date.              10.15.06.11
                                                                 B. The following establishments may use or serve Grade A fluid       (2013).
                                                              milk up to 4 days beyond the sell-by date:
 
                                                                   (1) Food service facilities;
                                                                   (2) Hospitals;
                                                                   (3) Schools;
                                                                   (4) Institutions; and
                                                                   (5) Places where milk is consumed on the premises.
 
                                                                 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.
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                                                                      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    105 Mass. Code
                                                              term ``sell by'' or ``best if used by'' in reasonable proximity to      Regs. 520.119
                                                              the designated date.                                                    (2013).
                                                                 (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:
                                                                    (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      105 Mass. Code
                                                              sale in the Commonwealth any food product after the expiration of a     Regs. 520.119
                                                              ``sell by date'' or a ``best if used by date'' unless:                  (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 1\1/2\ ounces.
                                                                   (f) Food products manufactured for sale outside the
                                                                Commonwealth, processed for sale outside the Commonwealth, or
                                                                stored for sale outside the Commonwealth.
Packaged Perishable   Date labeling required                     (D) Open Dating of Perishable and Semi Perishable Food Products     105 Mass. Code
 or Semi-Perishable                                              No person shall sell, offer for sale, or have in his possession      Regs. 520.119
 Foods                                                        with intent to sell, prepackaged perishable or semi-perishable food     (2013).
                                                              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
                      Sale after date not permitted              (F) Sale of Past Date Food Products. No person shall offer for      105 Mass. Code
                                                              sale in the Commonwealth any food product after the expiration of a     Regs. 520.119
                                                              ``sell by date'' or a ``best if used by date'' unless:                  (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 1\1/2\ 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           Date labeling required                     (2) A retail food establishment shall not sell or offer for sale a  Mich. Comp. Laws
 Perishable Foods                                             prepackaged perishable food unless the package bears a label with a     Ann.  289.8107
                                                              date identified by month and day, except that bakery products with a    (2013).
                                                              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.
                      Date labeling required                     (b)(c)(3) The date for prepackaged perishable food may be           Mich. Comp. Laws
                                                              displayed with or without explanatory terms. If explanatory terms are   Ann.  289.8107
                                                              used, the terms shall be limited to one of the following: ``Sell by     (2013).
                                                              __'', ``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.
                      Sale after date not permitted              (b)(c)(4) . . . A retail food establishment shall not sell or       Mich. Comp. Laws
                                                              offer for sale any of the following foods under the following           Ann.  289.8107
                                                              circumstances . . . (b) After the date, nonperishable food or           (2013).
                                                              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.
Milk/Dairy            Date labeling required                     Sec. 69(1) Each processor and manufacturer of milk and milk         Mich. Comp. Laws
                                                              products sold in this state shall place on each container of milk and   Ann.  288.539
                                                              milk products a recommended last day of sale by month and date.         (2013).
                                                                 (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.
                      Sale after date not permitted (with        Sec. 69(9) Milk and milk products shall not be offered for sale     Mich. Comp. Laws
                       exemptions)                            after the sell-by date unless they are advertised to the final          Ann.  288.539
                                                              consumer in a prominent manner as being beyond the recommended last     (2013).
                                                              day of sale.
Meat                  Date labeling not required             Not required for meat in Michigan.                                      No relevant state
                                                                                                                                      law.
                      Sale after date not permitted (with        (4) A retail food establishment shall not sell or offer for sale    Mich. Comp. Laws
                       exemptions)                            any of the following foods under the following circumstances:           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             Subp. 7. Open date. ``Open date'' means a date consisting of the    Minn. R. 1550.1040
                       assurance date)                        name or abbreviation or numerical designation for the month, the        (2013).
                                                              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:
 
                                                                   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  Minn. Stat. 
                                                              ordinance regarding open dating of perishable foods other than          31.786 (2013).
                                                              sections 31.781 to 31.789.
Eggs                  Date labeling required                     Subpart 1. Pack date. Consumer grades of eggs must be pack dated    Minn. R. 1520.1900
                                                              in type not smaller than \1/4\" capitals to indicate the date of        (2013).
                                                              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.''
                      Sale after date not restricted             Nothing contained in sections 31.781 to 31.789 or any rule adopted  Minn. Stat. 
                                                              pursuant hereto shall require the removal from sale of a perishable     31.784 (2013).
                                                              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.
Perishable Foods      Definition (perishable food)               Subd. 3. ``Perishable food'' means any food intended for human      Minn. Stat. 
                                                              consumption (other than meat and poultry, frozen food, or fresh fruit   31.782 (2013).
                                                              or vegetables), which has a quality assurance date.
                      Date labeling required                     Every manufacturer or processor of perishable food, except meat,    Minn. R. 1550.1060
                                                              poultry, frozen food, and fresh fruits and vegetables, as exempt by     (2013).
                                                              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.
                      Date labeling required (exemptions)        Perishable foods having quality assurance dates of more than 90     Minn. R. 1550.1160
                                                              days need not bear open dates.                                          (2013).
                      Sale after date not restricted             Nothing contained in sections 31.781 to 31.789 or any rule adopted  Minn. Stat. 
                                                              pursuant hereto shall require the removal from sale of a perishable     31.784 (2013).
                                                              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.
Shellfish             Date labeling required                     A. Raw shucked shellfish shall be obtained in nonreturnable         Minn. R. 4626.0200
                                                              packages that bear a legible label that identifies:                     (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  Minn. Stat. 
                                                              pursuant hereto shall require the removal from sale of a perishable     31.784 (2013).
                                                              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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Mississippi
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish             Date labeling required                     100.06  On packages containing sixty-four (64) fluid ounces or      43-46 Miss. Code R.
                                                              more shall have on the lid and sidewall or bottom the ``DATE             17 (LexisNexis
                                                              SHUCKED'' indicated as the number of the day, month and year or the     2013).
                                                              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.
                      Sale after date not restricted         Not restricted for shellfish in Mississippi.                            No relevant state
                                                                                                                                      law.
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                                                                        Missouri
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                                                                         Montana
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk (Grade A)        Definition (pasteurized date)              (1)(d) ``Pasteurized date'' is the same date a unit of milk         Mont. Admin. R.
                                                              completes pasteurization.                                               32.8.101 (2013).
                      Definition (``sell-by'' date)              (e) A ``sell-by'' date is defined as the 12th consecutive day,      Mont. Admin. R.
                                                              never to exceed 288 hours, following pasteurization of a unit of        32.8.101 (2013).
                                                              milk.
                      Date labeling required                     (1) Each container into which grade A pasteurized milk is placed    Mont. Admin. R.
                                                              for sale for public consumption must be marked with a pasteurized       32.8.203 (2013).
                                                              date and a sell-by date.
                                                                   (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  Mont. Admin. R.
                                                              unit of grade A milk, there will be no quantities of that unit of       32.8.202 (2013).
                                                              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.
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                                                                        Nebraska
--------------------------------------------------------------------------------------------------------------------------------------------------------
----                  ----                                   ----                                                                    ----
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                                                                        Nevada *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk                  Date labeling required                     1. At the time of sale to the consumer by a retail store of any     Nev. Admin. Code 
                                                              milk or milk product, there must appear upon the package or container   584.4321 (2012).
                                                              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.
                      Date labeling required                     2. The date respecting assurance of quality must appear at the top  Nev. Admin. Code 
                                                              of the carton or package and must be indelible and in a contrasting     584.4321 (2012).
                                                              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.
                      Sale after date not restricted         Not restricted for milk in Nevada.                                      No relevant state
                                                                                                                                      law.
Potentially           Definition (potentially hazardous          1. ``Potentially hazardous food'' means:                            Nev. Admin. Code 
 Hazardous Foods       foods)                                                                                                         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  Nev. Admin. Code 
                                                              food establishment or food processing plant to be ready to eat and      446.145 (2012).
                                                              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
                      Sale after date not permitted              4. These foods must be discarded if not sold, served or frozen:     Nev. Admin. Code 
                                                                                                                                      446.145 (2012).
                                                                   (a) Within 10 calendar days after the original container is       Nev. Admin. Code 
                                                                opened; or                                                            446.145 (2012).
                                                                   (b) On or before the date by which the food must be sold or
                                                                used, as indicated on the container, whichever occurs first.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      New Hampshire
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cream                 Date labeling required                     II. All retail containers of cream sold or offered for sale shall   N.H. Rev. Stat Ann.
                                                              be conspicuously marked with the date of the last day on which it may    184:30-g (2013).
                                                              be sold or offered for sale with a reasonable expectation that the
                                                              cream will not be sour, as determined by the manufacturer.
                      Sale after date not restricted         Not restricted for cream in New Hampshire.                              No relevant state
                                                                                                                                      law.
Prewrapped            Definition (expiration date)               (a) ``Expiration date'' means the last day of sale, printed or      N.H. Code Admin. R.
 Sandwiches                                                   stamped on a pre-wrapped sandwich label, determined in accordance       Agr. 1412.03
                                                              with these rules.                                                       (2013).
                      Date labeling required                     (c) The expiration date for a fresh refrigerated pre-wrapped        N.H. Code Admin. R.
                                                              sandwich shall be clearly and legibly printed or stamped by the         Agr. 1412.04
                                                              vendor on the sandwich wrapper label, at the time it is wrapped, by     (2013).
                                                              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.
                      Sale after date not permitted              The purpose of these rules is to protect public health and safety   N.H. Code Admin. R.
                                                              by establishing an expiration date on all sandwiches beyond which       Agr. 1412.01
                                                              each sandwich shall not be sold. These rules implement the procedures   (2013).
                                                              of the department of agriculture, markets, and food pursuant to RSA
                                                              438:26-b, dating pre-wrapped sandwiches.
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                                                                       New Jersey
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk/Dairy            Date labeling required                     Containers of milk, certified milk, Vitamin D milk, homogenized     N.J. Stat. Ann. 
                                                              milk, low fat milk, protein fortified low fat milk, skim milk,          24:10-57.23
                                                              protein fortified skim milk, nonfat milk, protein fortified nonfat      (2013).
                                                              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.
                      Sale after date not permitted              No fluid milk product listed in this section shall be sold or       N.J. Stat. Ann. 
                                                              offered for sale after 11:59 p.m. of the date appearing on the          24:10-57.23
                                                              containers so marked.                                                   (2013).
                                                                 (d) No milk product referred to in this regulation shall be sold    N.J. Admin. Code 
                                                              or offered for sale after 11:59 p.m. of the date appearing on the       8:21-10.20 (2013).
                                                              package or container. Products delivered prior to the ``shelf-life
                                                              expiration date'' may be consumed on the premises beyond the date
                                                              appearing thereon.
Shellfish             Date labeling required                     (n)(1) Raw shucked shellfish, packaging and identification          N.J. Admin. Code 
                                                              requirements include the following: . . .                               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.
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                                                                       New Mexico
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk/Dairy            Definition (pull date)                     E. ``Pull date'' means the last day on which a product is to be     N.M. Code R. 
                                                              sold or offered for sale for human consumption.                         21.34.5.7 (2013).
                      Date labeling required                     A. In addition to other labeling requirements, except as otherwise  N.M. Code R. 
                                                              exempted in this rule, all processors and producer distributors shall   21.34.5.9 (2013).
                                                              label each container of one-half (\1/2\) pint or larger of milk, low-
                                                              fat milk, non-fat 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.
                      Sale after date not permitted              Dairy products required to be labeled with a pull date and those    N.M. Code R. 
                                                              dairy products labeled with an optional pull date, except frozen,       21.34.5.16 (2013).
                                                              dried, condensed or evaporated products, may not be sold or offered
                                                              for sale for human consumption by any person after the pull date.
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                                                                        New York
--------------------------------------------------------------------------------------------------------------------------------------------------------
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                                                                     North Carolina
--------------------------------------------------------------------------------------------------------------------------------------------------------
General               Alteration of date labels not              A food shall be deemed to be misbranded: . . .                      N.C. Gen. Stat.
                       permitted                                                                                                      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        15A N.C. Admin.
                                                              container or tag by which a consumer is informed of the latest date     Code 18A.0301
                                                              the product will remain suitable for sale.                              (2013).
                      Date labeling required                     (c) Any container of shucked shellfish which has a capacity of 64   15A N.C. Admin.
                                                              fluid ounces or more shall be dated as of the date shucked on both      Code 18A.0614
                                                              the lid and sidewall or bottom. Any container of shucked shellfish      (2013).
                                                              which has a capacity of less than 64 fluid ounces shall indicate a
                                                              SELL BY date.
                      Sale after date not restricted         Not restricted for shellfish in North Carolina.                         No relevant state
                                                                                                                                      law.
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                                                                      North Dakota
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish             Date labeling required                     1. Raw shucked shellfish shall be obtained in nonreturnable         N.D. Admin. Code 33-
                                                              packages which bear a legible label that identifies . . .               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.
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                                                                          Ohio
--------------------------------------------------------------------------------------------------------------------------------------------------------
General               State preemption of local rules            (C) To ensure that a uniform system of determining the useful       Ohio Rev. Code Ann.
                                                              product life of perishable food products for sale within the state is    3715.171 (2013).
                                                              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.
                      Definition (quality assurance period)      ``Quality assurance period'' means the period of time following     Ohio Rev. Code Ann.
                                                              the completion of normal manufacturing, processing, and packaging        3715.171 (2013).
                                                              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.
                      Definition (sale date)                     ``Sale date'' means the date by which the manufacturer, processor,  Ohio Rev. Code Ann.
                                                              or packager of a packaged food product recommends that the food          3715.171 (2013).
                                                              product be sold for consumption based on the food product's quality
                                                              assurance period.
Packaged Perishable   Date labeling required                     (A) Except as provided in division (B) of this section, no person   Ohio Rev. Code Ann.
 Foods                                                        shall knowingly sell or offer to sell in this state any packaged         3715.171 (2013).
                                                              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.
                      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    Ohio Admin. Code
                                                              less than sixty-four fluid ounces of fresh or frozen shellfish shall    901:3-8-03 (2013).
                                                              have: . . .
 
                                                                   (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      Okla. Stat. tit. 2,
                                                              shall be preceded by ``EXP'', ``sell by'', or ``use through''.           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        Okla. Admin. Code 
                                                              packages which bear a legible label that identifies the . . . (2) The   310:257-5-15
                                                              ``sell by'' or ``best if used by'' date for packages with a capacity    (2013).
                                                              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.
                      Sale after date not restricted         Not restricted for shellfish in Oklahoma.                               No relevant state
                                                                                                                                      law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Oregon
--------------------------------------------------------------------------------------------------------------------------------------------------------
Packaged Perishable   Definition (open date)                     (2) ``Open date'' means a date clearly visible to retail consumers  Or. Rev. Stat. 
 Foods                                                        showing the pull date, packing date or other date described in ORS      616.805 (2013).
                                                              616.835(2).
                      Date labeling required                     No person shall sell or offer for sale at retail any packaged       Or. Rev. Stat. 
                                                              perishable food unless the package bears a clearly marked, printed or   616.815 (2013).
                                                              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.
                                                                 Unless otherwise provided, the following perishable foods shall be  Or. Admin. R. 603-
                                                              open date labeled with the pull date:                                   025-0080 (2013).
                                                                   (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        (1) No person shall sell or offer for sale at retail any packaged   Or. Rev. Stat. 
                       exemptions)                            perishable food after the expiration of the open pull date appearing    616.825 (2013).
                                                              on the label of the package or container unless:
 
                                                                   (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              No person shall:                                                    Or. Rev. Stat. 
                       permitted                                                                                                      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.
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                                                                      Pennsylvania
--------------------------------------------------------------------------------------------------------------------------------------------------------
Milk                  Date labeling required                     (a) Label requirement. The cap or nonglass container of             7 Pa. Code  59a.15
                                                              pasteurized milk held in retail food stores, restaurants, schools or    (2013).
                                                              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.
                      Sale after date not permitted              (c) Prohibition. Pasteurized milk may not be sold or offered for    7 Pa. Code  59a.15
                                                              sale if the milk is sold or offered for sale after the sell-by date     (2013).
                                                              designated on the container.
Shellfish             Date labeling required                     (a) Label requirement. Raw shucked shellfish shall be obtained in   7 Pa. Code  46.246
                                                              nonreturnable packages which bear a legible label that identifies the   (2013).
                                                              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.
                      Sale after date not restricted         Not restricted for shellfish in Pennsylvania.                           No relevant state
                                                                                                                                      law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Rhode Island
--------------------------------------------------------------------------------------------------------------------------------------------------------
Packaged Bakery       Definition (pull date)                     (C) `Pull Date' is the final date or day as established by the      31-3-5 R.I. Code R.
 Products                                                     packer or manufacturer upon which a packaged bakery product may be       21-33-PBP 1.00
                                                              sold, except as provided under Chapter 21-33, Section 3 and Section     (2013).
                                                              R21-33-PBP 6.00 of these rules and regulations.
                      Definition (packaged bakery product)       (A) A `Packaged Bakery Product' is a packaged bakery or bakery-     31-3-5 R.I. Code R.
                                                              type product consisting of flour and other ingredients having a          21-33-PBP 1.00
                                                              normal shelf life as established by the manufacturer or distributor     (2013).
                                                              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.
                      Date labeling required                     All packaged bakery product sold in this state shall have a pull    31-3-5 R.I. Code R.
                                                              date in a conspicuous place upon each package in which they are sold     21-33-PBP 2.00
                                                              in accordance with these regulations and Chapter 21-33 of Rhode         (2013).
                                                              Island General Laws of 1956, as amended.
                      Sale after date not permitted (with        Packaged bakery products may be sold after their `Pull Date',       31-3-5 R.I. Code R.
                       exemptions)                            provided however, that:                                                  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 past-date bakery products.
Shellfish             Date labeling required                     6.6(d) The dealer shall assure that each package containing less    31-3-9 R.I. Code R.
                                                              than 64 fluid ounces of fresh or frozen shellfish shall have:            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      S.C. Code Ann.  39-
                                                              letters not less than \1/4\" in size, the date when the eggs were       39-140 (2013).
                                                              packed and candled or the expiration date, which may not exceed forty-
                                                              five days from the date packed
                      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      S.C. Code Ann.
                                                              shall include:                                                          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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     South Dakota *
--------------------------------------------------------------------------------------------------------------------------------------------------------
----                  ----                                   ----                                                                    ----
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Tennessee
--------------------------------------------------------------------------------------------------------------------------------------------------------
----                  ----                                   ----                                                                    ----
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Texas
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shellfish             Date labeling required                     (d) The dealer shall assure that each package containing less than  25 Tex. Admin. Code
                                                              64 fluid ounces of fresh or frozen molluscan shellfish shall have [.     241.66 (2013).
                                                              . .] (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.
                      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       12-5 Vt. Code R. 
                                                              packages which bear a legible label that identifies the: . . . b. The   30:5-204 (2013).
                                                              ``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 Vermont.                                No relevant state
                                                                                                                                      law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Virginia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dairy                 Definition (dairy products)                ``Dairy product'' means butter, natural or processed cheese, dry    2 VA. Admin. Code 
                                                              whole milk, nonfat dry milk, dry buttermilk, dry whey, evaporated       5-531-10 (2013).
                                                              whole or skim milk, condensed whole milk and condensed plain or
                                                              sweetened skim milk.
                      Date labeling required                     4. No person may sell or offer for sale to the final consumer any   2 VA. Admin. Code 
                                                              dairy product in container or package form that does not bear a         5-531-60 (2013).
                                                              ``sell by date.''
                      Sale after date not permitted              5. No person may sell or offer for sale to the final consumer any   2 VA. Admin. Code 
                                                              dairy product in container or package form after the ``sell by date''   5-531-60 (2013).
                                                              shown on the package.
                      Alteration of date labels not              6. No person may change, remove, or replace the ``sell by date''    2 VA. Admin. Code 
                       permitted                              on any dairy product in container or package form after the ``sell by   5-531-60 (2013).
                                                              date'' is initially affixed to the package.
Shellfish             Date labeling required                     A. Raw shucked shellfish shall be obtained in nonreturnable         2 VA. Admin. Code 
                                                              packages that bear a legible label that identifies the: . . . ``sell    5-585-400 (2013).
                                                              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.
                      Sale after date not restricted         Not restricted for shellfish in Virginia.                               No relevant state
                                                                                                                                      law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Washington *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Perishable Packaged   Definition (pull date)                     (2) ``Pull date'' means the latest date a packaged food product     Wash. Rev. Code
 Food Goods                                                   shall be offered for sale to the public.                                Ann.  69.04.900
                                                                                                                                      (2013).
                      Definition (shelf life)                    (3) ``Shelf life'' means the length of time during which a          Wash. Rev. Code
                                                              packaged food product will retain its safe consumption quality if       Ann.  69.04.900
                                                              stored under proper temperature conditions.                             (2013).
                      Definition (perishable packaged food       (1) ``Perishable packaged food goods'' means and includes all       Wash. Rev. Code
                       goods)                                 foods and beverages, except alcoholic beverages, frozen foods, fresh    Ann.  69.04.900
                                                              meat, poultry and fish and a raw agricultural commodity as defined in   (2013).
                                                              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.
                      Date labeling required                     All perishable packaged food goods with a projected shelf life of   Wash. Rev. Code
                                                              thirty days or less, which are offered for sale to the public after     Ann.  69.04.905
                                                              January 1, 1974 shall state on the package the pull date.               (2013).
                      Sale after date not permitted (with        Can products be sold after the pull date? Yes, products can be      Wash. Admin. Code 
                       exemptions)                            sold after the pull date has expired if they are still wholesome, not   16-142-130 (2013).
                                                              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.
                      Alteration of date labels not              Can pull dates be changed? No, pull dates on perishable packaged    Wash. Admin. Code 
                       permitted                              foods subject to pull dating may not be changed, crossed-out or         16-142-150 (2013).
                                                              concealed.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Washington, D.C.
--------------------------------------------------------------------------------------------------------------------------------------------------------
General               Definition (pull date)                     Pull date--the date after which the food may not be sold, unless    D.C. Mun. Regs.
                                                              isolated and prominently labeled as being beyond the last date on       tit. 25-A,  9901
                                                              which the food should be sold without a significant risk of spoilage,   (2013).
                                                              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.
Potentially           Date labeling required                     718.1  All pasteurized fluid milk, fresh meat, poultry, fish,       D.C. Mun. Regs.
 Hazardous Foods,                                             bread products, eggs, butter, cheese, cold meat cuts, mildly            tit. 25-A,  718
 Dairy, Meat/                                                 processed pasteurized products, and potentially hazardous foods sold    (2013).
 Poultry, Eggs                                                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.
                      Sale after date not permitted              Pull date--the date after which the food may not be sold, unless    D.C. Mun. Regs.
                                                              isolated and prominently labeled as being beyond the last date on       tit. 25-A,  9901
                                                              which the food should be sold without a significant risk of spoilage,   (2013).
                                                              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.
                      Alteration of date labels not              718.2  If any food that has a pull date is rewrapped, the new       D.C. Mun. Regs.
                       permitted                              package shall retain the original pull date and the word                tit. 25-A,  718
                                                              ``REWRAPPED'' shall be prominent displayed on the package.              (2013).
Packaged Perishable   Date labeling not required             Date labeling not required for packaged perishable food in Washington,  No relevant state
 Food                                                         D.C.                                                                    law.
                      Sale after date not permitted              No person shall sell, trade, or barter any perishable packaged      D.C. Mun. Regs.
                                                              food beyond the pull date appearing thereon.                            tit. 25-B,  3606
                                                                                                                                      (2013).
                      Alteration of date labels not              3606.2  No person shall rewrap or repackage any packaged            D.C. Mun. Regs.
                       permitted                              perishable food with the intention of placing a pull date on the food   tit. 25-B,  3606
                                                              that is different from the original pull date.                          (2013).
Shellfish             Date labeling required                     2403.5  Each individual package containing less than sixty-four     D.C. Mun. Regs.
                                                              fluid ounces (64 fl. oz.) of fresh or frozen shellfish shall be         tit. 25-B,  2403
                                                              labeled with the following information: . . . (b) A ``Sell by'' date    (2013).
                                                              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.
                      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       W. Va. Code R.  61-
                                                              denote the expiration date of the eggs on the outside container in      7A-6 (2013).
                                                              which the egg cards are transported or on an invoice provided to the
                                                              retailer.
                      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  Wis. Admin. Code
                                                              under par. (d):                                                         Agric. Trade &
                                                                                                                                      Consumer Prot. 
                                                                                                                                      88-08 (2013).
                                                                   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        Wis. Admin. Code
                                                              expiration or ``sell by'' date specified for those eggs under subs.     Agric. Trade &
                                                              (1)(e)1. or (2)(g)1. If otherwise used as human food, the eggs shall    Consumer Prot. 
                                                              meet at least grade B egg standards.                                    88-08 (2013).
                      Alteration of date labels not              (4)(b) Eggs labeled with dates under subs. (1)(e) or (2)(g) shall   Wis. Admin. Code
                       permitted                              retain those dates and may not be repackaged or relabeled with any      Agric. Trade &
                                                              other dates.                                                            Consumer Prot. 
                                                                                                                                      88-08 (2013).
Shellfish             Date labeling required                     3-202.17(A) Raw shucked shellfish shall be obtained in              Wis. Admin. Code
                                                              nonreturnable packages which bear a legible label that identifies       Agric. Trade &
                                                              the: . . . (2) The ``sell by'' date for packages with a capacity of     Consumer Prot. 
                                                              less than 1.87 L (\1/2\ gallon) or the date shucked for packages with   75, App. (2013).
                                                              a capacity of 1.87 L (\1/2\ gallon) or more.
                      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        AGR FSF 3 Wyo. Code
                                                              packages which bear a legible label that identifies the: . . . (ii)     R.  11 (2013).
                                                              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.
                      Sale after date not restricted         Not restricted for shellfish in Wyoming.                                No relevant state
                                                                                                                                      law.
--------------------------------------------------------------------------------------------------------------------------------------------------------

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 Safety-Based 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 twenty-three
 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.
    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=PYEggCartonLabeling1N
 av1-200&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).
    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.
    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 Ready-to-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).
    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/Giant-Landover,
 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-foodpast-its-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∏_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.
    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/food-safety-
 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.
    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 accomplish 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 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.
    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.
    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 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 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 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 self-actualize, 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 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 donation 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 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 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 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 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.
    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 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 required 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.
    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.
    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 
private-sector 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 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 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:]
    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,
            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
            
Robert Budway,
President,
Can Manufacturers Institute.
                               attachment
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 ______
                                 
    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 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.
---------------------------------------------------------------------------
    \1\ Food 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.
---------------------------------------------------------------------------
    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 all-too-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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \5\ Royte, Elizabeth. National Geographic. ``How `Ugly' Fruits and 
Vegetables Can Help Solve World Hunger.'' March 2016. http://
www.nationalgeographic.com/magazine/2016/03/global-food-waste-
statistics/.
---------------------------------------------------------------------------
    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.

                                  [all]