Expired Food: Is it Illegal to Sell?

This is the first installment of the 3-part series on Food Expiration:

• Expired Food: Is it illegal to sell?
• Expired Food: What Consumers should know
• Expired Food: What retailers must do

A delicious scenario 

Here's a common scenario:   "One time, you went to a nearby grocery store. You bought some tomato sauce, pasta, cheese, and other ingredients for spaghetti meal preparation. You boiled the pasta, and prepared the spaghetti sauce as well. When the preparation was almost completed, without being suspicious, you chanced to read the expiry date label. You were surprised when you found out that many of the items you just bought past their expiration dates. You were fuming mad, went back to the store, demanded for a refund, and cast your invectives against the store people then threatened the store manager for legal action, only to hear from the manager that the expired items you just bought and now a deliciously-looking spaghetti meal is PERFECTLY OK AND NOTHING ILLEGAL ABOUT IT." 

How many times we have heard this same story from other people, and even from our friends over and over again. And some of us may have experienced similar situation as well. Try to search over the internet on food expiration and you will find thousands of pages replete of discussions about people's horrifying experiences on food poisoning and eating food past their expiry dates.

In my six years of inventory experience, I can safely say that there are literally hundreds of times and occasions where the very merchandise we were counting have had varying degrees and types of foods on the shelves that have way way past their expiration dates, yet the store seemed not concerned about proper food labeling, food handling, health issues and its legal implications at all.

It is very disappointing to the point of being outrageous when we hear about those experiences. So, before you decide to report any similar incident that you had witnessed or happened to you personally, to your local or City Health Officer, or before you consider filing a lawsuit against a grocery store or drug store that sold expired baby foods or frozen meat to you, why don't you come along with me, and let us consider the question:

Is there a Federal law that prohibits or makes it illegal to sell expired food?

To answer the question, it all depends on which country or state you live. Laws that govern on the selling or distribution of expired foods differ entirely from country to country. For instance, the Food Standards Agency in the UK makes it illegal for shops to sell food after its 'use by' date, but it is fairly legal for shops to sell food after its 'best before', 'sell by' or 'display until' date. Canadian laws may slightly differ from Federal and State Laws. 

For the benefit of all readers of this post, here's how I subdivide the issues: For those of you who live in Canada, the Canadian Food Inspection Agency has a detailed page on Date Labelling on Pre-packaged Foods. For readers who live in Great Britain, you may visit Food Standards Agency for health laws on food labeling. For other readers of this blog, please visit or refer your government's agency responsible on applicable food and health laws. For those of you (and me) who live in the US, here is what federal law said about expired food:

"The truth of the matter is: Federal Law does
not prohibit the selling of expired food.
It does not even require expiration dates
on all products, EXCEPT for infant
formula and some baby foods."

C

US Government Guidelines

Yes, you heard me right. Federal Law does not prohibit selling expired goods. It doe not even require expirations date on all products, EXCEPT for infant formula and some baby foods. 

The "Sell By", or "Best if Used By", or similar dating labels that you read from food products are initiatives by manufacturers and retailers and not a government restrictions. Here is the exact word from USDA Food Safety and Inspection Service (FSIS) about US government guidelines on Food Dating and Handling:

"Except for infant formula and some baby food,
product dating -- having  a Use By, Sell By or 
Best if Used By date -- is not generally required
by  Federal regulations. While there is no 
uniform or universally accepted  system 
used for food dating in the United States, 
dating of some foods is required by more
than 20 states."

2 very important things to note here: 

• The Food & Drug Administration, which regulates packaged foods and drugs, only requires a "use-by," or "expiration date" on infant formula and some baby foods. The reason behind this is that, formula must contain a certain quantity of each nutrient that is described on the label. And if formula is stored too long, it loses its nutritional quality, and also separates or form lumps that will clog the bottle nipple. Except for infant formula and some baby foods, product dating is not required by federal regulations.
• The Agriculture Department, which regulates fresh produce and meats, only requires labeling of the date when poultry is packed at the farm. It is those manufacturers that add sell-by or use-by dates.

State Laws, penalties and court cases.

The federal government simply gave general guidelines and its up to the states to formulate, implement, and enforce additional state laws deemed applicable, and adjucate them on top of these guidelines set by the federal government. 

That gives a state almost complete control over health regulations and that includes whether or not expired food is illegal to sell or distribute in a state level. So the logical question then would be: Do states have had successfully prosecuted, or penalized retailers and manufacturers that have violated existing and specific laws on selling expired foods or drugs in their jurisdiction? 

The answer is YES. Here are some few instances:

• In November 2009, the State of New York fined CVS with $875,000 fine for selling expired food and medicine.
• In September 2008, the New Jersey attorney general's office sued Wal-Mart Stores Inc. and its main rival, Target Corp. over the same practice. It was the second time Wal-Mart had been sued -- and later fined -- for selling expired formula.
• In June 2008, again, Rite Aid Corp., agreed to pay New Jersey $475,000 in fines after it was found to have sold expired formula.
• Again, In December 2008, The State of New York has fined Rite Aid, and agrees to pay $1.3  million settlement over selling expired products.
• In February 2009, In Westchester county, the New York Department of Consumer Protection, has found 21 popular grocery stores selling expired food, and fined them a total of $59,600 for failing to pull expired items off their shelves. 

And the list goes on. 

USDA Food Safety and Inspection Service (FSIS) recommendations

Now we all know that some states prohibit selling food past their expiration dates. But the vexing question remains unanswered: If federal law does not prohibit selling expired food products, are they safe to eat? If they are,  then what are the USDA FSIS' regulations and recommendations on food dating?

• A "Sell-By" date tells the store how long to display the product for sale. You should buy the product before the date expires.
• A "Best if Used By (or Before)" date is recommended for best flavor or quality. It is not a purchase or safety date.
• A "Use-By" date is the last date recommended for the use of the product while at peak quality. The date has been determined by the manufacturer of the product.
• A "Closed or coded dates" are packing numbers for use by the manufacturer.

Safety After Date Expires

Except for "use-by" dates, product dates don't always refer to home storage and use after purchase. "Use-by" dates usually refer to best quality and are not safety dates. But 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. If product has a "use-by" date, follow that date. If product has a "sell-by" date or no date, cook or freeze the product by the times on the chart.

Dating Formula & Baby Food

Federal regulations require a "use-by" date on the product label of infant formula and the varieties of baby food under FDA inspection. If consumed by that date, the formula or food must contain not less than the quantity of each nutrient as described on the label. Formula must maintain an acceptable quality to pass through an ordinary bottle nipple. If stored too long, formula can separate and clog the nipple.

Dates on Egg Cartons

Use of either a "Sell-By" or "Expiration" (EXP) date is not federally required, but may be State required, as defined by the egg laws in the State where the eggs are marketed. Some State egg laws do not allow the use of a "sell-by" date. 

For a complete list on how long or how many days should frozen food, fresh meat, fresh eggs, milk, etc be stored in a refrigerator or any storage form after their "Use By" or "Best Before" dates, please copy or print the Fact Sheet on Food Labeling from the USDA FSIS website. 

There you go folks, these are information that came straight from the horse's mouth. Did you ever had similar experience with eating expired food? So what do you think,

Can we eat food that has fallen on the floor?  Even if it stays there less than 5 seconds, C'mon!

Disclaimer: This article is for informational only. It is purely personal and it constitutes no legal opinion.

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