Open Shelf Life Dating of Foods

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Open Shelf Life Dating of Foods
Harvey N. Kornfeld
Abstract
Food Labeling and Food Safety and Inspection in the United States are under the jurisdiction of
the United States Department of Agriculture (USDA) and the Food and Drug Administration
(FDA). Open Shelf Life Dates on food packages are part of the labeling applied by food
manufacturers. However, unlike most labeling which has tightly-regulated federal requirements,
there is no nationwide open dating legislation mandated by USDA or FDA.
The result is a disorderly, random use of terminology, dates and codes. This leads to consumer
confusion about what the expiration dates mean. It also makes consumers uncertain about what
they should do with an expired (or close to expiration) packaged food. Furthermore, without a
federal system, each state has the right under the US Constitution to implement its own
regulations, creating deadlock and potential state border disputes with regard to interstate
commerce and shipping of differently-labeled or in some states illegally-unlabeled packaged
foods across state borders. Time/temperature abused foods could cause food borne illness and
their consumption might be unsafe or even hazardous to public safety. Time/temperature abused
foods might also be interpreted as misbranded or mislabeled, potentially resulting in state vs.
state lawsuits or federal crimes.
Key Words
Shelf life, Open dates, Open shelf life dates, Consumer satisfaction, Expiration dates on foods,
Misbranded and mislabeled foods, Consumer understanding/misunderstanding of shelf life
dating terms, FIFO, Food Quality vs. Safety, Time/temperature abuse
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Definitions
"(A) An open date or open shelf life date" for foods is labeling a packaged food with a 'packed
on' date or the date when the product was meant to be "sold by" or meant to be "used by"
(B) Shelf life is the end point of a product's acceptable sensory life or the point at which a given
percentage of consumers are displeased by the product (Labuza and Schmidl 1988). This
definition accounts for the variation in consumer perception of quality and has an economic
part, i.e., that it is not possible to please all consumers; thus, one must establish a baseline
of consumer dissatisfaction." (1)

Purpose
The purpose of this paper is to report on the benefits to consumers, retailers and government
agencies of a federal, uniform-and-mandated, open-dating system on food products. This would,
if implemented, replace the present random and non-uniform state-by-state-mandated or, in
many cases, non-mandated system.
Consumers have consistently demanded open dates, so that they could have legible and
understandable information, which would allow them to make informed choices about the
freshness of the foods they purchase and consume. A "mandatory/uniform system" would help
retailers keep their stock rotation "First-in, First-out" (FIFO) operations running properly, so that
consumers could have the freshest and best (safest) products available. Finally, a federal
mandatory/uniform system of open dating regulations across state borders would lessen burdens
on interstate commerce. "The potential benefits of this dating system outweigh its opposing
points-of-view." (2)
Open-Dating Terminology

(3) The table above, from Open Dating of Foods, shows, in part, why consumers are so confused
about open dating practices. These phrases are all used on food packages today in stores across
the country. The sad truth is that most consumers simply dispose of a food item in their homes
when that food gets close to, or past, its expiration date, despite whatever kind of Open Date
terminology is used on the label.
What Do Expiration Dates Mean to Consumers? How Can We Educate Consumers?
Some people question whether it is even necessary for consumers to see or understand food
expiration dates. Dr. John Ruff, the President of the Institute of Food Technologists, (IFT), is
quoted in a December 2012, National Public Radio (NPR) broadcast as saying, "You should just
sniff the meat and milk. If it smells funny, go ahead and toss it. But for most foods, don't worry.
As a consumer, I've certainly opened packages of food that were five years old." (4) I think he
is trying to say that most of the open dating of foods is done by manufacturers so that they can
keep track of organoleptic or sensory quality expiration dates; these dates are not put on
packages as indications of food safety expiration dates.
Except in the cases of fresh milk or infant formula (where food safety and nutrient loss are
important issues to consumers), expiration dates are usually not dates by which food safety, or
vital nutrient loss, are issues. So, these are not meant to be dates by which a food must be
discarded by consumers. In other words, manufacturers set expiration dates so that the date on a
packaged food will show expiration long before that food becomes a food safety concern.
At the same time, manufacturers want to preserve a customer's confidence in the organoleptic
attributes of their products. So they might affix an expiration date on a box of 'Twinkies', for
example, to ensure that product staling, toughening of the outer cake or souring of the inner
filling does not occur, at least until well after the product's expiration date. In theory, any of
these conditions would occur long before the food becomes a food safety or public health
concern. In most cases, the food would not taste 'right' to consumers, so they would not eat it, at
a point long before eating it could make someone sick.
But without more efforts to better educate consumers, how is a consumer going to know the
difference? Dr. Ruff's interview sounds to me a lot like "Don't Worry, Be Happy. At one of my
first jobs as a cook in a fish restaurant, where freshness of fish and seafood was of vital concern
(mostly to keep our customers happy and coming back often), every day we used the term, "If in
doubt, throw it out."
How can a consumer know if they should throw something out, if they have any 'doubt', about a
product or the date code on that product? Can a consumer know if the date code was put there
by the manufacturer to protect the reputation of the company and their product and not as a food
safety measure? Are all consumers supposed to trust their noses or palate to determine if a food
may, or may not be, spoiled? Can all food borne diseases be detected by smell or taste? I don't
have the answers to at least some of these questions and I don't know if anyone else does.
A consumer cannot know if a date code is a food safety issue or a manufacturer's organoleptic
quality issue. From the results of many polls, most consumers do not even know to ask the

questions or understand the difference between a food quality and a food safety expiration date.
(5)
Consumers are becoming more aware of, and are more often checking, labels and expiration
dates. Many polls show that they do not like to see expiration dates close to the day they are
shopping. Perceptions of freshness play a major role in consumers' choices of where to shop.
Highly-stacked displays of brightly-colored fruits and vegetables, fresh-looking meats and fish
and expiration dates far from the date when foods are purchased, make consumers feel confident
about the stores where they shop.
Rarely, foods with 'Use by' dates which have not expired can
already carry harmful or pathogenic bacteria. This occurs most
commonly in temperature abused packages, which could "allow
the pathogenic organism to achieve an infectious level before the
end of other food quality attributes. A shorter shelf-life will
increase products' turnover rates and lessen the chances of
microbial infections." Federal rules governing how the 'sell-by'
and 'pull-by' dates are determined on packaged foods is necessary.
(6)
Most consumers want to see open dates. Educating them about what the dates mean is
"necessary, but not currently being done". An open dating system may be deceiving if the food
is not properly handled. Consumers' understanding (rightfully or wrongfully) of an open
expiration date is that the food is nutritious and safe to eat as long as it is eaten before its
expiration date. Most modes of food deterioration are dependent on a "time-temperature
interdependence". Open dating of food is useful as an indicator of the end of shelf-life, but it
should be used with time-temperature integrators to give a more dependable "indicator of
freshness" for the consumer. (7)
Time Temperature Integrators/Indicators (TTIs)
Time Temperature Integrators/Indicators are measuring tools implanted either in a sachet in the
food package, on the food product surface or within the food packaging itself. These indicators
respond to a combination of the time and temperature to which the food and packaging has been
exposed. This is based on the idea that both time and temperature are critical measures in food
spoilage. (8)
Open Dating and Misbranded/Mislabeled Foods
Even if consumers often misunderstand or misinterpret an open date on a packaged food product,
readable open dates imply something to a consumer. There is an implication of freshness, that
they are purchasing a food product within its useable life and that the food product is safe to
purchase and consume at home for a reasonable amount of time; at least as long as there has been
no time/temperature abuse.
To a producer or manufacturer, the open date represents the shelf life of the product, or the time
throughout which testing shows that a loss of desired quality will not make the product

disagreeable to a certain percentage of consumers. To the food retailer, open code dates tell
them how quickly they must move the product to get it into the consumer's hands before spoilage
occurs.
The open date also implies that the product is going to be, or has been, stored properly, e.g., that
the temperature in the refrigerated cabinet is maintained below 40-45° F. If not maintained
properly, the food may spoil before the expiration date, leading to a disgruntled consumer or to a
food poisoning incident. If no date is present, consumers may sort for those that are dated or be
confused as to how long they can store the food at home.
The presence or absence of a date has legal implications, with respect to either being misleading
or misbranded. In Section 201 (n) of the Food, Drug and Cosmetic Act, the federal law on all
foods except meat, poultry, eggs and egg breaking operations, the definition of misbranding is
that a food is misbranded if the label or advertisement is misleading. (9)
"Although no similar wording appears in the Meat Inspection Act, Poultry Products Inspection
Act and the Egg Products Inspection Act, it is assumed that they would follow the same
principles…" (10)
There is only one federal court case which pertains to the open dating of foods, GMA v.
Department of Public Health (393 NE 2d, 881,1979). In its ruling, the Supreme Court of
Massachusetts found that with respect to labels that could be "misleading in any particular" were
"labels containing omissions of fact as well as sale of food with labels containing express
misstatements of fact." The GMA (Grocery Manufacturers of America) tried to overturn the
Massachusetts requirement for open dates on all foods, arguing that it represented "an
impediment of commerce between the states". The Court ruled that the purpose of the open date
was to "protect public health". Further, the court ruled that a food label which is "misleading in
any particular" causes the food product to be misbranded (393 NE 2nd 881, 1987). Finally,
because there was no open date on a label, the food was deemed to be "misbranded". (11)
"Therefore, it may be implied under Massachusetts' regulations and
in other states with similar legislation on open dating that if a food
is not open dated, that it is misbranded since there is an omission of
fact important to public health. A food product may also be implied
to be misbranded if is labeled with a date and then not held at
proper conditions to meet the promise of that date, i.e., if abused by
improper transportation and storage temperatures."
"Considering Section 201 (n) of the Food, Drug and Cosmetics Act,
if the labeling 'fails to reveal facts material in the light of such
representations', a product which is purchased in good faith that it is
wholesome, but without an open date, may become a non-
wholesome product if stock rotation has not been effective or if the
distribution temperature is not controlled. If the date does not
reveal to the consumer that the product is possibly of a lower
quality, then the consumer is not making an intended purchase
because of this omission of information, or misbranding." (12)

Outdated Food Products and Wholesomeness
In April 1998, a Minnesota television station broadcast a report on "shelf-life and freshness
dates". They found outdated products at 19 of the 20 food stores they randomly investigated.
Packets of yeast (which loses its effectiveness over time) with an expiration date of April 1996,
(two years earlier) were found in one store. Refrigerated chicken with a "Sell-by" date of
December 1997, (four months earlier) were found in another. The response from the Minnesota
Department of Agriculture was that "legally, the food just needs to remain wholesome or safe to
remain on the shelves even if it is past the expiration date" (13)
Whether chicken four months past its expiration date can be reasonably expected to be
"wholesome or safe" is a question I will leave to someone else. With regards to the two-years
out-of-date packaged dry yeast, it might still be considered to be "wholesome or safe". But,
being so long past its expiration date, it might or might not still offer the functional qualities for
which it was intended. Clearly these are extraordinary circumstances. But, I wonder if the
response from the Minnesota Department of Agriculture is an appropriate one for either instance.
"False labeling on a food package is also legally misbranded as follows according to Section
302(a) of the Food, Drug and Cosmetic Act:
A food shall be deemed to be misbranded If (1) its labeling is false or misleading in any
particular…
"Therefore, products which are not properly refrigerated
during distribution or at the retail level can be charged with
misbranding because a lack of refrigeration would be
misleading for customers. In addition, such foods could
also be deemed adulterated if held under conditions
whereby they may become adulterated, i.e., unfit as food
because of the possibility that pathogens could grow under
improper storage conditions." (14)
Egg Grading Regulations
The Food Safety and Inspection Service (FSIS) of the USDA has special regulations for eggs
under the Egg Products Inspection Act (EPIA). Shell eggs are required to be transported under
refrigerated and storage temperatures of no greater than 45° F, including supermarket holding
and display. According to the Federal Register, 1998, this regulation reduces food poisoning and
saves millions of dollars in health costs every year, possibly even saving lives. Guaranteeing
these low, refrigerated temperatures may seem like a burdensome cost to producers, shippers and
retail managers and it may be seen by some to be too expensive to be feasibly implemented.
However, to ensure against the growth of Salmonella enteriditis in the egg, (a microbial pathogen
which causes serious illness or death and is the most reported cause of illness from Salmonellae
species) this might be considered a small price to pay. The same regulation requires that eggs
carry a label stating that proper refrigeration is required.

Whole eggs face different open dating regulations than many other foods, because even eggs
which have not been time/temperature abused, drop from "Grade A" to "Grade B" thirty days
after laying. Eggs older than this and still labeled "Grade A" are therefore, legally considered to
be misbranded. (Federal Register, 1998)." (15)
Low Consumer Confidence in the Foods They Buy
In a study reported by USDA in 1973,
"The Economic Research Service (ERS) of USDA and the
Consumer Research Institute (CRI) conducted a consumer survey
concerning food spoilage. The results showed a lack of consumer
confidence in the products they had purchased from the
supermarket. While 93% of the respondents reported that they had
not purchased any stale or spoiled products within the past year,
many of them indicated a problem with the freshness of foods.
Within the last two weeks prior to being surveyed, 18% of the
customers purchased food which spoiled or staled before they
expected. When a food was spoiled on the day that it was
purchased, most consumers reported that they threw the product
out rather than returning it to the store. This is in spite of the fact
that 62% of the shoppers knew about the store money-back
guarantee." (16)
Conclusions
The sections of the Food, Drug and Cosmetics Act and the EPIA, as quoted above, show that
open dating of foods is much more than simply information provided to educate the consumer.
Open dating provides information to assist retailers in proper FIFO stock rotation. It also offers
information to be used by producers to assure consumer satisfaction by ascertaining that
organoleptic food quality does not prematurely decline leading to customer dissatisfaction.
Furthermore, open dating is a food industry assurance of their efforts to maintain organoleptic
quality.
Open dating provides a way for consumers to check on the freshness of many packaged products
and for the industry to respond more quickly to any outbreaks of foodborne disease by offering a
method to more carefully track production dates, facilities and shipping methods.
There are federal statutes regulating expiration dates on pharmaceuticals. Perhaps it is time for
similar federal regulations on open dating of foods and food product expiration.

Sources
Open Dating of Foods, Theodore P. Labuza and Lynn M. Szybist, Food and Nutrition Press,
Trumbull, CT, 2001
"Current Practices and Regulations Regarding Open Dating of Food Products", Theodore P.
Labuza and Lynn M. Szybist, Working Paper 99-01, The Retail Food Industry Center, March,
1999. Abstract
Food Science, Fifth Edition, Norman N. Potter and Joseph H. Hotchkiss, Food Science Texts,
Chapman and Hall, NY, 2007
http://www.fsis.usda.gov/pdf/food_product_dating.pdf
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1) Open Dating of Foods, Theodore P. Labuza and Lynn M. Szybist, Food and Nutrition Press,
Trumbull, CT, 2001
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Trumbull, CT, 2001
3) Open Dating of Foods, Theodore P. Labuza and Lynn M. Szybist, Food and Nutrition Press,
Trumbull, CT, 2001
4) NPR Dr. Ruff interview, http://www.npr.org/blogs/thesalt/2012/12/26/167819082/dont-fear-
that-expired-food
5) Open Dating of Foods, Theodore P. Labuza and Lynn M. Szybist, Food and Nutrition Press,
Trumbull, CT, 2001
6) Open Dating of Foods, Theodore P. Labuza and Lynn M. Szybist, Food and Nutrition Press,
Trumbull, CT, 2001
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Trumbull, CT, 2001
8) Food Science, Fifth Edition, Norman N. Potter and Joseph H. Hotchkiss, CBS Publishers,
New Delhi, 2007
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Trumbull, CT, 2001
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Trumbull, CT, 2001
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Trumbull, CT, 2001
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Trumbull, CT, 2001
13) Open Dating of Foods, Theodore P. Labuza and Lynn M. Szybist, Food and Nutrition Press,
Trumbull, CT, 2001
14) Current Practices and Regulations Regarding Open Dating of Food Products", Theodore P.
Labuza and Lynn M. Szybist, Working Paper 99-01, The Retail Food Industry Center,
March, 1999. Abstract

15) Open Dating of Foods, Theodore P. Labuza and Lynn M. Szybist, Food and Nutrition Press,
Trumbull, CT, 2001
16) Open Dating of Foods, Theodore P. Labuza and Lynn M. Szybist, Food and Nutrition Press,
Trumbull, CT, 2001