[Federal Register Volume 84, Number 68 (Tuesday, April 9, 2019)]
[Notices]
[Pages 14083-14085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06988]


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DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

[Docket No. FSIS-2019-0009]


Availability of FSIS Food Product Dating Fact Sheet

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Notice; response to comments.

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SUMMARY: FSIS is announcing the availability of an updated fact sheet 
on food product dating. The fact sheet is aimed at reducing food waste 
through encouraging food manufacturers and retailers that apply product 
dating to use a ``Best if Used By'' date label. FSIS recommends the use 
of a ``Best if Used By'' date label because research shows that this 
phrase is easily understood by consumers as an indicator of quality 
rather than safety. FSIS is also responding to comments received on the 
previous version of the fact sheet that it announced in the December 
2016 Constituent Update.

ADDRESSES: A downloadable version of the updated fact sheet is 
available to view and print at https://www.fsis.usda.gov/wps/wcm/connect/19013cb7-8a4d-474c-8bd7-bda76b9defb3/Food-Product-Dating.pdf?MOD=AJPERES.

FOR FURTHER INFORMATION CONTACT: Jeff Canavan, Deputy Director, 
Labeling and Program Delivery Staff, Office of Policy and Program 
Development, Food Safety and Inspection Service, U.S. Department of 
Agriculture, Stop Code 3784, Patriots

[[Page 14084]]

Plaza 3, 8-161A, 1400 Independence Avenue SW, Washington, DC 20250-
3700; Telephone (301) 504-0879; Fax (202) 245-4792.

SUPPLEMENTARY INFORMATION: 

Background

    In the United States, approximately 30 percent of the food supply 
is wasted.\1\ Wasted food is the single largest category of material 
placed in municipal landfills \2\ and much of it likely could have 
helped feed families in need. Additionally, water, energy, and labor 
used to produce wasted food could have been used for other purposes.
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    \1\ See https://www.ers.usda.gov/amber-waves/2013/june/ers-food-loss-data-help-inform-the-food-waste-discussion/.
    \2\ See https://www.epa.gov/facts-and-figures-about-materials-waste-and-recycling/national-overview-facts-and-figures-materials.
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    The Food Safety and Inspection Service (FSIS) administers a 
regulatory program under the Federal Meat Inspection Act (FMIA) (21 
U.S.C. 601 et seq.), the Poultry Products Inspection Act (PPIA) (21 
U.S.C. 451 et seq.), and the Egg Products Inspection Act (EPIA) (21 
U.S.C. 1031 et seq.) to protect the health and welfare of consumers. 
The Agency is responsible for ensuring that the nation's commercial 
supply of meat, poultry, and egg products is safe, wholesome, not 
adulterated, and correctly labeled and packaged. Consequently, FSIS is 
uniquely positioned to address the problem of wasted meat, poultry, and 
processed egg products by working with Federal, State, tribal and local 
governments, faith-based institutions, industry, and consumers to raise 
awareness of food waste issues, simplify requirements for donation,\3\ 
and share best practices.
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    \3\ In January 2016, FSIS issued Directive 7020.1, which makes 
it easier for companies to donate wholesome products that may be 
misbranded or economically adulterated. The Directive is available 
at https://www.fsis.usda.gov/wps/wcm/connect/25e1becc-4201-4cc0-a707-c9ed38a2f01c/7020.1.pdf?MOD=AJPERES.
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    On December 14, 2016, FSIS announced in the Constituent Update \4\ 
the availability of and requested comment on a fact sheet aimed at 
reducing food waste through encouraging food manufacturers and 
retailers that apply product dating to use a ``Best if Used By'' date 
label. FSIS recommended the use of a ``Best if Used By'' date label 
because a national survey showed that this phrase is easily understood 
by consumers as an indicator of food quality rather than food 
safety.\5\
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    \4\ https://www.fsis.usda.gov/wps/wcm/connect/589fdc30-1f3e-4901-b594-65fc3b46bcba/ConstiUpdate121616.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=589fdc30-1f3e-4901-b594-65fc3b46bcba.
    \5\ See Emily Broad Leib, Christina Rice, Roni Neff, Marie 
Spiker, Ali Schklair & Sally Greenberg, Consumer Perceptions of Date 
Labels: National Survey, Harvard Food Law and Policy Clinic, 
National Consumer Institute and Johns Hopkins Center for a Livable 
Future (May 2016), http://www.chlpi.org/wp-content/uploads/2013/12/Consumer-Perceptions-on-Date-Labels_May-2016.pdf.
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    As FSIS explained in the fact sheet, except for infant formula,\6\ 
product dating is not required by Federal regulation. Food 
manufacturers frequently use a variety of phrases such as ``Sell By'' 
and ``Use By'' on product labels to describe quality dates on a 
voluntary basis. The use of different phrases to describe quality dates 
has likely caused consumer confusion and has led to the disposal of 
food, just because it is past the date printed on the package, food 
that is otherwise wholesome and safe.
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    \6\ See 21 CFR 107.20(c).
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    After carefully reviewing all comments received, FSIS made minor 
changes to the fact sheet. These changes include updating a hyperlink 
to FSIS's fact sheet on shelf-stable products and adding ``Freeze By'' 
to the list of commonly used phrases used on labels to describe quality 
dates. Additionally, a footnote was added to clarify that while FSIS 
does not require date labeling for food quality or food safety, FSIS 
does require a ``pack date'' for poultry products and thermally 
processed, commercially sterile products to help the Agency identify 
product lots and facilitate trace-back activities in the event of an 
outbreak of foodborne illness.\7\ The updated fact sheet is available 
on the Agency's website at https://www.fsis.usda.gov/wps/wcm/connect/19013cb7-8a4d-474c-8bd7-bda76b9defb3/Food-Product-Dating.pdf?MOD=AJPERES.
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    \7\ See 9 CFR 381.126 and 9 CFR 431.2(e).
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Summary of Comments and Responses

    FSIS received 46 comments on the 2016 version of the fact sheet 
from individual consumers, registered dietitians, employees of food 
assistance centers, an employee of a food processing company, the 
chairman of a county legislature, a food inspector, a State 
environmental protection agency, a trade association representing the 
meat industry, and a policy group associated with a law school. A 
summary of issues raised by commenters and the Agency's responses 
follows.
    Comments: Most commenters liked the fact sheet and agreed that food 
manufacturers and retailers should use ``Best if Used By'' date labels 
to reduce unnecessary food waste caused by consumer label confusion. 
These commenters argued that because consumers understand that ``Best 
if Used By'' is an indicator of food quality and not food safety, they 
are less likely to waste food. According to these commenters, consumers 
know that they can safely eat food after the passage of the ``Best if 
Used By'' date. A policy group that supported the fact sheet also noted 
that ReFED, a non-profit organization committed to reducing U.S. food 
waste, published a report that stated that ``standardizing date labels 
nationally was the most cost-effective solution to reduce food waste, 
with the potential to divert 398,000 tons of food waste per year and 
provide $1.8 billion per year in economic value.''
    Several commenters argued that FSIS should go a step further and 
require food product dating labels. The same policy group mentioned 
above noted that two of the largest trade groups representing the 
grocery and manufacturing industries launched a voluntary initiative to 
standardize date labels on food packages, and that these trade groups 
also recommended the use of ``Best if Used By'' to indicate food 
quality. The policy group argued that because ``Best if Used By'' is 
the label preferred by industry to indicate quality, FSIS should just 
require ``Best if Used By'' dates on all meat, poultry, and egg 
products. Some consumers and a registered dietitian argued that rather 
than require ``Best if Used By'' labels, FSIS should require safety-
based consume-by date labels.
    Response: At this time, FSIS does not believe it is necessary to 
conduct rulemaking to require ``Best if Used By'' or safety-based 
consume-by date labels. As noted above, members of industry are already 
taking steps to standardize food product dating labels on their own. 
Additionally, the magnitude in number, diversity, and complexity of 
products that exist in the marketplace make it difficult to require 
safety-based consume-by date labels. Food safety after the date of food 
production largely depends on the environmental, storage, and 
distribution conditions of the food. Moreover, if companies decided to 
use conservative safety-based consume-by dates, these labels may cause 
an increase in the amount of food that is wasted.
    Comments: An employee of a food processing company and a food 
inspector argued that the phrase ``Best if Used By'' is too wordy for a 
food product label. The same commenters suggested that FSIS recommend 
the shorter phrases, ``Sell By,'' ``Use By,'' and ``Best By.'' However, 
a few

[[Page 14085]]

consumers argued that ``Best if Used By'' is too short and vague. These 
commenters suggested that FSIS use ``Best Quality if Used By.'' A trade 
association representing the meat industry also argued that ``Best if 
Used By'' is too ambiguous for meat and poultry products. According to 
the trade association, many meat and poultry products are currently 
labeled with ``Use or Freeze By'' labels to provide consumers with 
clear direction and offer an alternative to disposal. The trade 
association was concerned that consumers would not understand that 
products with ``Best if Used By'' labels may be frozen to extend their 
usability.
    Response: FSIS recognizes that because food product labels are 
small it is important to convey information clearly and concisely. 
However, FSIS disagrees that ``Best if Used By'' is too short or too 
vague. The national survey mentioned above found that 70 percent of 
adults surveyed understood that ``Best if Used By'' was an indicator of 
food quality. Based on the survey results, FSIS believes that the 
phrase ``Best if Used By'' is clear and effective. And, while FSIS 
still recommends that companies use ``Best if Used By,'' the Agency has 
added ``Freeze By'' to the list of commonly used labeling phrases in 
the fact sheet to provide more information to consumers on what the 
label means.
    Comment: A trade association representing the meat industry stated 
that shelf-life in ready-to-eat (RTE) products is often based on 
controlling Listeria monocytogenes (Lm), not organoleptic concerns. 
According to the commenter, the meat and poultry industry often applies 
a ``Use By'' date to ensure refrigerated RTE product safety. Therefore, 
the commenter argued, consumers should not be told that it is safe to 
consume refrigerated RTE meat and poultry products after the ``Use By'' 
date. The commenter argued that a distinction should be made between a 
``Best if Used By'' date, where the product may be consumed after the 
date if there are no signs of spoilage, and a ``Use By'' date, where 
product should not be consumed after the date even if there are no 
signs of spoilage.
    Response: FSIS disagrees with the comment. While some 
establishments may use date labeling to manage safety of refrigerated 
RTE meat and poultry products--not all establishments do. Only 
establishments producing products with an antimicrobial agent or 
process must establish the shelf-life of the product in order to 
document, either in their HACCP plan, Sanitation Standard Operating 
Procedures, or prerequisite program, that their antimicrobial agent or 
process is effective in suppressing or limiting growth of Lm (see 9 CFR 
430.4(b)(1) and (2)). In addition, for those products, FSIS recommends 
but does not require ``Use By'' dating on labels.\8\
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    \8\ See Controlling Listeria monocytogenes in Post-lethality 
Exposed Ready-to-Eat Meat and Poultry Products at https://www.fsis.usda.gov/wps/wcm/connect/d3373299-50e6-47d6-a577-e74a1e549fde/Controlling-Lm-RTE-Guideline.pdf?MOD=AJPERES.
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    Comment: One consumer was confused by the statement that except for 
infant formula, product dating is not required by Federal regulations. 
The consumer questioned how this statement could be true if FSIS 
requires certain products to be labeled with a ``pack date.''
    Response: As mentioned above, FSIS added a footnote to the fact 
sheet to clarify that while FSIS does not require date labeling for 
food quality or food safety, FSIS does require a ``pack date'' for 
poultry products and thermally processed, commercially sterile products 
to help the Agency identify product lots and facilitate trace-back 
activities in the event of an outbreak of foodborne illness.\9\
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    \9\ See 9 CFR 381.126 and 9 CFR 431.2(e).
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    Comments: Several commenters stated that FSIS could do more to 
ensure that safe, wholesome food is not wasted by providing consumer 
education about the meaning of date labels.
    Response: Now that the fact sheet is finalized, FSIS intends to 
include more information about food product dating in the Agency's 
presentations and webinars on labeling and labeling features.

Additional Public Notification

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

USDA Nondiscrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds 
of race, color, national origin, religion, sex, gender identity, sexual 
orientation, disability, age, marital status, family/parental status, 
income derived from a public assistance program, or political beliefs, 
exclude from participation in, deny the benefits of, or subject to 
discrimination, any person in the United States under any program or 
activity conducted by the USDA.

How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program 
Discrimination Complaint Form, which may be accessed online at: http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your 
authorized representative.
    Send your completed complaint form or letter to USDA by mail, fax, 
or email:
    Mail: U.S. Department of Agriculture, Director, Office of 
Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410.
    Fax: (202) 690-7442.
    Email: [email protected].
    Persons with disabilities who require alternative means for 
communication (Braille, large print, audiotape, etc.) should contact 
USDA's TARGET Center at (202) 720-2600 (voice and TDD).

Carmen M. Rottenberg,
Administrator.
[FR Doc. 2019-06988 Filed 4-8-19; 8:45 am]
 BILLING CODE 3410-DM-P