Editor’s note: This essay is a 2017 runner up for the “Publisher’s Award” and was written as part of a food safety litigation class at the University of Arkansas Law School taught by Bill Marler and Denis Stearns of the Seattle law firm MarlerClark LLP.
Food waste is sickening. The amount of safe and nutritious food that is wasted each year in the United States is astonishing: An estimated 40 percent of the U.S. food supply is never consumed. Yet, approximately 49 million Americans are suffering from hunger. Instead of using this excess food to feed the hungry, most of this food waste ends up in the trash. This sight is nauseating — billions of pounds of food rotting in U.S. landfills while approximately one in seven Americans are food insecure.
Food safety concerns are some of the many factors that contribute to the large amount of food waste in the U.S. There is a widespread misconception that some food products cannot or should not be recovered due to food safety concerns. This has resulted in businesses throwing out food that is still perfectly good and safe to eat. For example, a large number of food products are thrown into landfills that are mislabeled, even though they are still safe for human consumption. Some of this food could be diverted from the landfill by simply relabeling the product to declare an ingredient originally omitted. Other product labels may create a false sense of concern that the product is no longer safe. A new, clearer label could prevent food from going to waste.
To address these concerns, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced two new policies in 2016 to help businesses and consumers reduce food waste. The first policy action was the issuance of FSIS Directive 7020.1, which created a new and simpler relabeling process for businesses that want to donate food products that have minor labeling errors. The other step taken by FSIS was the issuance of a new guidance document that suggests manufacturers use standard and consistent language for date labels to reduce consumer confusion and food waste that is a result of this confusion. These new policies apply to all meat, poultry, and some egg products in the U.S.
FSIS Directive 7020.1 makes the relabeling process easier for businesses who want to donate recalled products. Prior to this new policy, food products regulated by FSIS had to follow a re-approval labeling process before the product could be donated. In addition, that product had to be plainly marked “Not for Sale.” Businesses were discovering approval could take anywhere from 60-90 days, resulting in a lengthy process, which took up a large amount of storage space. The re-labeling application process required time and labor. It was also costly for businesses to pay their employees to re-label and stamp “Not for Sale” on each product. Overall, the costs of donating the products were not feasible for businesses.
Now, under FSIS Directive 7020.1, businesses can donate certain mislabeled products without worrying about the costs associated with the re-labeling process. Under the directive, economically adulterated or misbranded meat and poultry products can be donated “as is” without applying for temporary label approval and without adding the “Not for Sale” statement on each package. The only requirement is that there is a bill of lading that describes the quantity and description of the donated item, the reason the product was recalled, and a statement that the product is not for sale, which accompanies the donated product. However, the temporary label approval and “Not for Sale” package statement are still both required if the product is misbranded because it did not include an ingredient of public health concern: Wheat, fish and shellfish, eggs, peanuts, dairy, tree nuts, or soybeans or “[i]ngredients that may cause food intolerance, such as sulfur-based preservatives (sulfites), lactose, Yellow 5 (tartrazine), gluten, and monosodium glutamate (MSG).” Also, the donated product is still required to be inspected by officials before it is shipped to the nonprofit organization.
FSIS “Food Product Dating” guidance document will also assist with the fight against food waste. Federal law does not regulate or require date labels on food products, with the exception of baby formula. Instead, there are a plethora of state laws that regulate date labels, some of which outlaw the donation of food that is past its date. The lack of uniform regulation causes confusion around whether or not the date on the food pertains to the product’s safety. The date labels on most products do not relate to food safety. Yet, according to a national consumer survey, 84 percent of consumers toss out food that is past its date because of safety concerns. FSIS’s guidance document addresses date labels’ contribution to food waste in the U.S.
Now, FSIS encourages date labels to only use “Best if Used By” language. Manufacturers and retailers should try and refrain from using any other date label phrases. The guidance document also states that unspoiled, wholesome, safe food can “be sold, purchased, donated, and consumed beyond” its “Best if Used By” date. FSIS also confirmed that besides infant formula, dates on food products are not a way to determine the safety of a product.
These new policies may have a significant impact on reducing food waste across the U.S. One survey found that 20 percent of food waste at the consumer level is from date label confusion. If manufacturers and retailers follow FSIS’s Food Product Dating guidance, consumers will only be required to know the meaning of one phrase. In fact, according to a survey by the Harvard Food Law and Policy Clinic, the National Consumers League, and the Johns Hopkins Center for a Livable Future, most consumers relate “Best if Used By” to the quality of a product, not safety. Thus, the guidance document will help clear up consumers’ confusion around date labels and food safety.
The new FSIS directive will also ensure that businesses are not throwing out safe food. A large number of products are recalled due to labeling issues — 60% of all FDA recalls, for example. These products were not always relabeled and redistributed, and businesses moved forward with the cheaper alternative — tossing the products into the landfill. Now, FSIS’s removal of the approval process for certain products will allow businesses to re-label products for donation in a more efficient manner. These policies show FSIS and USDA’s dedication to reducing food waste.
Even so, there are some flaws that prevent FSIS from having a larger influence on consumers, businesses, and the amount of food waste in the U.S. For one, FSIS regulates a small portion of U.S. food products, around 10 percent to 20 percent, whereas, the Food and Drug Administration has regulatory authority over a majority of the food in the U.S. Thus, the FDA would probably have a larger impact than the USDA if it initiated these policies, but the FDA has not implemented similar guidelines.
Moreover, FSIS’s policy statements are not new legal requirements like administrative rules. These statements are not federal law, but are simply how the agency will interpret a law. The guidance document and directive are easier to repeal than an administrative rule. When a new president is elected, the new administration may change or remove these policy statements. Thus, FSIS’s policies to combat food waste are not permanent. Businesses may be wary to follow these new policies until it is clear that the new administration will not repeal or change them.
FSIS’s guidance document on date labels also will not completely clear up consumer’s confusion about date labels. The document does not mandate manufacturers and retailers to only use the “Best if Used By” language. It only suggests they follow this recommendation. The document also does not preempt state laws that prohibit donating food past its date or state laws that require certain products to contain a wide range of confusing phrases.
FSIS Directive 7020.1 still does not address the significant problems with re-labeling products recalled due to ingredients of public health concern. For these products, the approval process for the temporary label can still take up to 90 days. The longer a product must be stored at a business, the stronger the likelihood that they will need the space for inventory, and that this safe, edible recalled product will be tossed into the trash. This includes a large amount of recalled products — over 10 million pounds of meat and poultry products were recalled in 2015 due to an undeclared allergen. Yet, these products are still edible — there is no risk in donating a product that has been properly relabeled with the correct ingredients and allergens.
Even so, the USDA and FSIS should receive significant praise for their efforts to reduce food waste in 2016. These two new policies should help to reduce the amount of food that is wasted due to misinformed food safety fears. However, more can be done to ensure that food safety and food waste reduction work hand in hand. Caution is and should continue to be used when it comes to proper food safety, and there should always be a strong regulatory process in place to protect the general public from food borne illness. However, “[e]xcessive caution has consequences . … Just as there are ramifications to eating food that’s [unsafe], so are there repercussion for all of our waste.”
To learn more about the USDA’s food waste reduction efforts visit the U.S. Food Loss and Waste Challenge website.
About the author: Kelly Nuckolls is an LL.M. in Food and Agriculture Law candidate at the University of Arkansas School of Law. Nuckolls graduated from Drake Law School with a certificate in Food and Agriculture Law in 2016. She received her Bachelor of Arts in Political Science from Fort Hays State University in 2013.
Editor’s note: Bill Marler is publisher of Food Safety News.
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