Food purveyors who choose to put sell by labels on packaged soon will soon have to comply with new uniform regulations. The new rules, which were proposed by the Department of of Consumer Protection (DCP) in 2022 and recently approved by the Legislative Regulation Review Committee (LRRC) set guidelines for how sell by dates must be calculated, can be labelled, and how records of sell-by dates must be maintained by food purveyors.
The DCP first published notice of the proposed regulation on September 2, 2022, stating it would allow the agency to “more efficiently and effectively regulate this industry to protect the public health and safety.” The attorney general approved the proposal on April 4, 2023 and DCP submitted it to the LRRC on April 13.
The LRRC voted unanimously on June 27 to approve the uniform date labeling regulations. The regulations do not make placing sell-by dates on food packaging mandatory, but do set mandatory guidelines for purveyors must follow if they choose to place sell-by labels on their food.
Requirements include rules for how dates can be written out, with the month and date always labeled and following a format proscribed by the regulations, and prohibit the selling of food after its sell-by date, unless the food is still of good quality. Rules for what factors influence how a sell-by date is calculated are also spelled out in the regulations, as are requirements for food purveyors to document their method for doing so.
An analysis of the regulation performed by DCP and submitted March 14, 2022 found that it will not have an effect on small businesses. The regulation is also not anticipated to have any municipal fiscal impact.
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The regulations prohibit the sale of perishable food after the sell-by date unless it is wholesome and “advertised in a conspicuous manner as being offered for sale after the recommended last date of sale.” Amending the sell-by date after a product has been offered for sale is prohibited. A sticker or tag can be placed on food to advertise the sell-by date, provided it is easily readable and identifies when perishable food has passed its last recommended date of sale.
Additionally, the regulations specify that a retailer who purchases prepackaged perishable food can determine a sell-by date and place it upon each package upon written agreement with the person who prepackaged it.
The regulations also stipulate how dates can be written out on packaging. If a retailer elects to use a sell-by date, the regulations stipulate they attach the month and date when food expires to each package. Bakery products with a shelf life of seven days or less can be dated with the day of the week. According to the regulations, acceptable abbreviations for days of the week will contain either the first two or three letters of the day. Additionally, sell-by date labels must display the term “sell by” or similar wording “immediately preceding or immediately over the designated date,” unless the package label has a prominent notice with that information and indicates the location of the sell-by date.
Further, dates will be designated by the first three letters of the month, either preceded or followed by a numeral for the day, or the month represented numerically followed by a calendar day represented numerically. The regulations also stipulate that then the numerical arrangement is used, numbers for the first nine days of the month should include a zero as the first digit. Additionally, the month and day should be separated by a period, slash, dash, space, or other recognized separator.
Sell-by dates can also include the year, following the day, if the year is expressed as a two or four digit number either followed or preceded by the first three letters of the month.
The regulations also include similar rules and formatting requirements for labels with best if used by dates, which must include the month and year the food expires. Additionally, the regulations stipulate that manufacturers of food that is semi-perishable or has a long shelf-life can place on open date on the package “provided it is designated by the best if used by date.”
Dates are required to be printed, stamped, embossed, perforated, or otherwise shown on packaging or an affixed label so they are easily readable and separate from other information. They cannot be superimposed.
Additional rules for food establishments also specify that food can be sold beyond the sell-by date if it is “wholesome, unadulterated and the organoleptic physical quality standards for that food have not significantly diminished.”
The regulations also create rules for how a sell-by date can be determined. The person who places the label has to take into consideration “food quality, characteristics, formulation, processing impact, packing or container and other protective wrapping or coating, customary transportation, and storage and display conditions.” Home storage conditions are considered similar to those in retail stores, except the date for refrigerated food may be calculated using a 40-degree Fahrenheit standard for home refrigerators.
People who establish sell-by dates also have to keep a record of the method used to determine the date and must revise that record whenever a factor is altered. Records have to be maintained for at least six months after the most recent sell by date and must be provided upon request for inspection and copying to the DCP commissioner, or their representatives.
The regulations also stipulate that they do not apply to perishable fruits, vegetables, or shellfish in a container permitting “direct sensory examination” and milk or milk products regulated by other statutes. Finally, if the regulations conflict with United States Department of Agriculture (USDA) rules and regulations, the USDA’s rules prevail.
The agency now has 14 days to file a certified electronic copy of the regulation, along with a certification statement from DCP’s head, with the secretary of state’s office.
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