On September 28, 2024, California Governor Gavin Newsom signed AB660 into law. This bill was the first in the nation to ban the use of certain date labels on food products. Specifically, the California law creates uniformity in the types of date labels used on food items by prohibiting the use of any date labels other than “best-if-used by” for quality and “use by” for product safety. This article will discuss the new California law, and the regulation of date labeling generally.

General Background on Date Labels

Most consumers are probably familiar with the idea of an “expiration date” being included on the packaging of a food product. However, most consumers do not know that the dates they see are generally not an indication of the food’s safety, but instead a tool used to regulate quality. Generally, this means that the dates consumers see on food products are not used to indicate that food is unsafe to eat past a certain date, but an indicator that a product is no longer at its peak level of freshness. For example, the date label “sell-by” is primarily used to signal to retail stores when the products should be rotated off shelves and is not an indicator that the food is unsafe to eat past the date listed. A date safety label, however, indicates that a food product is no longer safe to eat because of the growth of bacteria that could be harmful to the consumer. The only date label that indicates safety is the phrase “use by,” and only when it is applied to infant formula. All other labels that indicate dates or time periods are date quality labels indicating the freshness of the product.  Generally, food is safe to eat past the quality date as long as it has been properly stored and handled.

There are two types of product dating that may appear on a product label: open and closed. Open dating is a calendar date applied to a food product by the manufacturer or retailer, and closed dating is a code that consists of a series of letters or numbers applied by manufacturers to identify the date and time of production. Closed dating is not formatted in a way that is easy for consumers to understand. However, there are no uniform or universally accepted descriptions for open dates in the United States. Instead, the United States Department of Agriculture (USDA) considers the following as examples of the most commonly used date labels:

• “Best if used by/before” – indicates when a product will be of best flavor or quality and is not a safety date.
• “Sell by” – tells the store how long to display the product for sale for inventory management and is not a safety date.
• “Use by” – the last date recommended for the use of the product while at peak quality. Only a safety date when used on infant formula.
• “Freeze by” – indicates when a product should be frozen to maintain peak quality and is not a safety date.

While they recognize and permit each of the above labels, both the USDA and the FDA recommend the use of the claim “Best if Used By” to convey to consumers that the product will be of best quality if used by the calendar date shown.

Food Waste Problem

The aforementioned consumer confusion about date labels is significant because the USDA estimates that 30% of the food supply is lost or wasted at the retail and consumer levels. Studies have shown that some of this waste occurs because consumers get confused about the meaning of date labels on packaged foods and mistakenly throw out food that is actually safe to eat. The majority of dates applied to food are for quality not for safety and can be safely consumed past the date on the label. Though food products are generally safe to eat shortly past the date on the label, the USDA and FDA strongly recommend that consumers evaluate the quality of food prior to consumption. Spoiled food will have indicating characteristics such as an off-odor or texture that indicate the presence of spoilage bacteria. However, if the food is past the date but is lacking in characteristics that indicate spoilage, it is probably safe to consume.

Federal Regulation of Date Labels

The USDA and the FDA share the federal responsibility for regulating the US food system. Specifically, the USDA has authority over meat, poultry, catfish, and unshelled egg products, while FDA regulates the other 80% of the food system.

Other than infant formula, there are no FDA or USDA regulations that require food to include a date label. However, the USDA has rules for date labeling for food manufacturers, processors, and retailers who voluntarily choose to include a date label on their product. FDA does not. This is notable because it leaves the vast majority of the food supply without federal guidance or oversight for date labeling.

For the percentage of the food supply regulated by the USDA’s Food Safety and Inspection Service (FSIS), date labels may be voluntarily applied if they are labeled in a manner that is truthful, not misleading, and in compliance with FSIS regulations. 9 CFR § 317.8, 9 CFR § 381.129. Under the FSIS regulations for meat and poultry products, a date label with a calendar date must include both the month and the day of the month. However, for a shelf-stable or frozen product, the year must also be displayed. For example, a package of beef steaks labeled with a calendar date must include the month and day, but a package of frozen pork chops is required to include the month, day, and year. In addition, a date label must have a phrase explaining the meaning of the date like “best if used by” immediately adjacent to the date.

For eggs and poultry products, USDA has specific regulations for identifying the “pack date.” 9 CFR § 381.126, 9 CFR § 590.411. An egg carton with the USDA grade shield must display the “pack date” – the date the eggs were washed, graded, and placed in the carton. Though there is not a federal requirement that a “sell-by” or “expiration date” be present on an egg carton, some states do require that. Conversely, some states will prohibit the use of a “sell-by” date on an egg carton. However, if a “sell-by” date appears on an egg carton bearing the USDA grade shield, the date must not exceed 30 days from the pack date on the carton. Similarly, poultry products produced in a federally inspected facility will be required to be clearly and permanently marked by a code or pack date. The code would be an example of closed dating, and its makeup varies depending on the type of poultry product. If a calendar date is used, it must follow the aforementioned rules for calendar dating found in 9 CFR § 381.129. To learn more about FSIS regulation of poultry date labeling, click here to read FSIS’ “Labeling Compliance Policy Guide on Poultry Food Product Dating.”

FSIS, unlike the FDA, requires prior approval for labels on the packaging of food under its authority. However, FSIS has a system called generic approval which allows a label to be used without submission and approval from FSIS if it meets a set of mandatory components. Additionally, if a manufacturer wants to utilize generic approval but wants to include an additional labeling claim, the manufacturer is able to do so if the labeling claim is defined in either FSIS regulations or in the Food Standards and Labeling Policy Book. Included in the Food Standards and Labeling Policy Book is the term “open dating.” Under this definition, only a date label using a further qualifying phrase that goes beyond the required explanatory phrase, must be submitted with sufficient documentation to support the additional claims and approved by FSIS. This means the initial explanatory statement and the general open dating calendar date is generically approved and will not require submission and approval from FSIS for a manufacturer to include on the food’s packaging.

State Patchwork Regulation

Since there is no uniformly accepted definition for date labels and as evidenced by the inconsistent state regulation of “sell-by” dates on egg cartons, every state has a different approach to regulating date labels. The Date Labeling Policy Finder, a project of Harvard Law School’s Food Law and Policy Clinic, has identified two categories of current state date labeling policies – those with negative policies and those with moderate policies. A negative policy is classified as a state requiring date labels for certain foods and prohibiting or limiting the sale or donation of food after its label date. A moderate policy, on the other hand, is one that requires date labels for certain foods but does not prohibit or limit the sale or donation after the label date. Under this classification, 23 states have a negative policy and 27 states plus the District of Columbia have a moderate policy. To add to the confusion, states in each category may identify, different foods on which they require date labeling. For example, Georgia requires date labeling for eggs, dairy, and shellfish. For those products, sale after the listed date is restricted, but donation is not. Conversely, New York only requires Molluscan Shellfish packages that are smaller than ½ gallon be labeled with either “sell-by” or “best if used by” date and shellfish packages with capacity of ½ gallon or more are labeled with the date of shucking. New York does not restrict either the sale or donation of any food item past date.

California Law

The new California date label law, codified as Cal. FAC Code § 36004, 82001,requires a food manufacturer, processor, or retailer who chooses to display a date label to use only one of the following uniform label terms to communicate a food’s quality or safety date:

• “Best if used by” or “Best if Used or Frozen by” to indicate the quality date of the food item. “BB” may also be used for a food item that is too small to include the entire term.
• “Use by” or “Use by or Freeze by” to indicate the safety date of the food item. “UB” may also be used for a food item too small to include the entire term.

The law bans the use of any other quality or safety date label on food items for human consumption for sale or offered for sale in the state of California. For example, this means that the use of the label “sell-by” on a food product will be prohibited. While the law requires a food product bearing a date label to follow its mandate, the decision to include a date label on a food’s packaging remains voluntary for food manufacturers, processors, or retailers, unless another law requires the inclusion of date labeling. For example, neither California nor the federal government requires the inclusion of a date label on a beef product, so a manufacturer, processer, or retailer selling a beef product in California can choose to include a date label or not.

However, AB660 also requires market milk, market cream, or any milk product made from market milk to bear “the date established by the processer as the date by which the product should normally be used to ensure consumer quality.” This means milk will be required under California law to bear a date label – not for safety, but for quality. The specific language of that label has not yet been determined and will be established by the Secretary of the California Department of Food and Agriculture.  which indicates the date of the milk’s peak quality.

While the new California law bans the inclusion of a food item offer for sale with the phrase “sell-by,” the use of coded “sell-by” dates are not prohibited. Under the Harvard classification system, the new law would be considered as moderate policy, as it does not prohibit the sale, donation, or use of food after the food’s quality date has passed. Additionally, a retail food facility is permitted to donate a food item that is not compliant with the law.

In terms of prepared foods, which are “food item[s] for human consumption prepared or repackaged on the grocery store’s premises,” a grocery store is allowed to label a prepared food item with a “packed on” date and as long as it also displays a quality or safety date label in accordance with the law. The law does not apply to infant formula, eggs, or beer/other malt beverages. California’s law goes into effect on July 1, 2026.

To learn more about USDA regulation of date labeling, click here to view USDA’s date labeling factsheet.

To learn more about the effect Uniform Date Labeling could have on food waste, click here to read Congressional Research Service Report “Uniform Date Labeling of Food May Address Food Waste.”

To learn more about food labeling generally, click here to view NALC’s food labeling reading room.