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'Use By' and 'Best Before' Dates on Food - What do they really mean?

Published: 20 Feb 2007

by Joe Lederman and Julian Wan © February 2007
BALDWINS – FoodLegal
Australian Food Lawyers & Consultants

‘Use-by’ and ‘best-before’ dates are present on most packaged food and drink products, but what exactly do these words mean? Why do some products specify a use-by date, others best-before? Can food retailers sell products past their ‘use-by’ or ‘best-before’ date? The purpose of this 3,000 word article is to answer these questions and to outline some of the legal risks that some retailers may be taking.

The Australia New Zealand Food Standards Code (‘ANZFSC’) currently allows for two types of dates to be printed on packaged food: a ‘use-by’ date and a ‘best-before’ date. These dates cannot be used interchangeably as there are instances where a ‘use-by’ date must be applied instead of ‘best-before’.

Generally speaking, a ‘use-by’ date relates to whether a food is safe to consume and the impact on a person’s health. A ‘best-before’ date on the other hand is an indicator of a product’s quality or characteristics and when consumers can no longer expect a product to be the same as what it was marketed to be. Some food might still be perfectly safe to consume after its ‘best-before’ date has past.

Unlike ‘use-by’ dated products, there is no blanket prohibition on the sale of food which has passed its ‘best-before’ date. A person who sells food past its ‘best-before’ date however may be exposing themselves to increased legal risks.

This article elaborates on those issues which a retailer should be aware of before deciding to sell goods which are to be sold after their stated ‘best-before’ dates.

The legal background

The sale of food is governed by the uniform Food Acts in each State and Territory (except in the case of Western Australia (as the law then stood as at February 2007) where food is regulated by the WA Health Act). Nevertheless each such piece of legislation (or by regulation thereunder) prescribes mandatory compliance with the ANZFSC or in particular prescribes a failure to comply withthe Code to be a statutory offence under the relevant State or Territory legislation.

The ANZFSC prescribes numerous labelling standards, among them being Standard 1.2.1 of the Code which requires that food for retail sale or catering purposes must bear a compliant label, unless the food has been specifically exempted from the labelling requirements. The “Date Marking of Packaged Food” in Standard 1.2.5 is one of these labelling requirements.

What are the differences between a use-by and best-before date?

Standard 1.2.5 defines ‘use-by’ date and ‘best-before’ date. The ‘use-by’ date is defined as the estimated date when the food should no longer be consumed because of health and safety reasons, assuming that it had been stored in accordance with any stated storage conditions. The ‘best-before’ date is defined as the date after which the food will not be fully marketable, or ceases to possess any specific qualities or characteristics for which there has been an express or implied claim. The ‘use-by’ date can therefore be thought of as the date when a food is no longer safe to eat, while the ‘best-before’ date indicates when the food’s quality or characteristics have begun to deteriorate, but not necessarily unsafe to consume.

When must ‘use-by’ and ‘best-before’ dates be used

Standard 1.2.5 of the Code specifies that labels on packaged food do not need a use-by date or best-before date if:

  1. the best before date of the food is two years or more; or
  2. it is “an individual portion of ice cream or ice confection”; or
  3. it is “in a small package [as defined] except where the food should be consumed before a certain date because of health or safety reasons”: see Standard 1.2.5 clause 1(c) – (d)
Where a date mark is required, a ‘best-before’ instead of a ‘use-by’ date, can only be used if there is no date before which the food should be consumed because of health or safety reasons: see Standard 1.2.5 clause 1(a) – (b).

Packages of bread which have a shelf life of less than 7 days receive special treatment and may use a ‘baked-on’ or ‘baked-for’ instead of a ‘best-before’ date: see Standard 1.2.5 clause 2.

The Code does not explicitly define what the term “health or safety reason” means, but guidance is provided by the FSANZ User Guide to Standard 1.2.5 (‘the user guide’) which was first developed and published in July 2001 by the FSANZ predecessor the Australia New Zealand Food Authority. The user guide is intended to aid users in the interpretation and application of Standard 1.2.5.

The user guide to Standard 1.2.5 states that a health reason is one that is associated with the nutritional concerns of consumers. There are certain foods where the nutritional profile can be critical to the health of the consumer, for example, where a person is unable to eat normal food and relies on special dietary foods which are manufactured to be the sole source of nutrition for that person. It is critical that such foods contain the correct amount of nutrients, as specified, when they are consumed, otherwise a person relying on the nutritional content of the food may not receive an adequate diet. As some nutrients will naturally breakdown over time, there will be a specific date before which the food must be consumed in order to ensure correct nutritional content, hence the requirement of a ‘use-by’ date and not a ‘best-before’ date: see User Guide to Standard 1.2.5 page 6 – 7.

According to the user guide, a safety reason refers to when food may visibly appear to be safe to consume but actually be microbiologically unsafe. Food which spoils in a visible manner is not considered a safety risk and thus is not necessarily required by virtue of such visible degradation to have printed on it a ‘use-by’ date. Foods which do not support the growth of bacteria, such as canned goods or most frozen goods might not require ‘use-by’ dates since they will not become microbiologically unsafe. The user guide also states that most raw foods will not require ‘use-by’ dates where they will be subsequently processed, such as by cooking, to kill any bacteria which may have grown.

Manufacturers of frozen foods however must exercise caution when determining whether their products will require ‘use-by’ dates. Bacteria such as Listeria monocytogenes, certain strains of Bacillus cereus, certain strains of Clostridium botulinum and Yersinia enterocolitica will grow even at refrigeration temperatures: see User Guide to Standard 1.2.5 page 10. Furthermore, even where frozen goods will be subjected to reheating before being consumed, the process of reheating may not be sufficient to kill any harmful bacteria which have grown.

Based on Standard 1.2.5 and the user guide, if a packaged product requires date markings to be included on the label, and the ‘best-before’ date is less than two years, a ‘use-by’ date is required if:
  1. the product will be unsafe to eat (even after any required processing such as cooking) before it appears visibly spoiled; or
  2. the product is a special dietary product that is consumed as a primary source of nutrition where the nutritional content of the food important to maintaining an adequate diet.
    Otherwise, a ‘best-before’ date marking may be sufficient.
It must be stressed however, that the phrase ‘health and safety reason’ is not defined in the Code, only in the user guide which is not legally binding. There is also no reference to “visibly spoiled” in Standard 1.2.5. Manufacturers of products which are required to apply date markings should therefore exercise caution when applying ‘best-before’ dates to products that will become unsafe to consume, regardless of whether the product will appear to have visibly spoiled before it becomes microbiologically unfit for consumption.

Legal liability arising from the sale of ‘best-before’ dated products

Standard 1.2.5 clause 3 expressly prohibits the sale of food which is past its ‘use-by’ date, but does not place any such restriction on foods marked ‘best-before’. Other laws however may still operate to impose legal liabilities on a food retailer who sells products after the ‘best-before’ date. Of particular concern are the Food Acts, breaching of implied warranties under the Trade Practices Act, and the potential for claims of negligence. Traders in ‘best-before’ dated products should also consider the issue of their insurance coverage.

‘Best-before’ products and the Food Acts

Persons who sell food beyond their ‘best-before’ date expose themselves to a higher risk of breaching the Food Acts. There are two possible categories of offences under the Food Acts which are of particular relevance – the offence of selling ‘unsuitable’ food and offences connected to the selling of ‘unsafe’ food. As the Food Acts are uniform, the Victorian Food Act (‘the Victorian Act’) will be used in this article to illustrate how selling food after the marked ‘best-before’ date might give rise to a legal liability.

It is an offence for a person to sell food which they know, or “ought reasonably to know” is unsafe: see Section 9(1) and 9A(1) of the Victorian Act. The Act also makes it an offence to sell unsafe food, regardless of the level of knowledge possessed by the seller: see section 11 of the Victorian Act. ‘Unsafe’ food is defined in section 4D(1) of the Victorian Act as food which would:
“be likely to cause physical harm to a person who might later consume it, assuming-
a)     it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use; and
b)     nothing happened to it after that particular time and before being consumed by the person that would prevent it being used for its reasonable intended use; and
c)      it was consumed by the person according to its reasonable intended use.

The word ‘processes’ is defined to include storage and preparation in the same section.

The fact that food is ready for sale past its marked ‘best-before’ date does not necessarily make the food unsafe. By definition the ‘best-before’ date is the date when the quality and characteristics of the food will begin to degrade beyond what they have been marketed to be, not when the food is likely to cause harm. Nonetheless the presence of a ‘best-before’ date however does not mean that the food will be safe to consume after that date, only that if and when the food does become unsafe to consume, it will appear to be visibly spoiled. As the offences do not require there to be consumption of the unsafe food, the fact the food is visibly spoiled or not is irrelevant. Therefore, the ‘best-before’ date only gives the seller the knowledge that the food is safe to consume before the ‘best-before’ date – once that date has passed, the seller will only know the quality has degraded, but not whether it is still safe or not.

Clearly, the longer food remains unsold after the “best-before” date, the more likely it will become unsafe and the more likely a court will be prepared to find that the seller ‘ought reasonably to have known’ the food was not safe. Furthermore, the offence in section 11 of the Victorian Act does not require any level of knowledge – as long as the food was unsafe when sold, an offence will have be committed. Any increased risk in food being unsafe when sold will therefore translate into an increased risk of breaching the Food Act.

There is a defence of due diligence available under section 17E of the Victorian Act. To avail themselves of this defence, the seller needs to show:
  • it relied on information supplied by another person; and
  • it was reasonable in all the circumstances to rely on the checks carried out by the person who supplied the food; and
  • the food was not imported from another country; and
  • the food was sold by the business in the same condition as the business had purchased it, or if it was a different condition that the difference did not result in the offence; and
  • that the person selling the food did not know or had no reason to suspect that the act or omission of the supplier of the food would constitute an offence: see section 17E of the Victorian Act.
Although it would constitute information supplied by another person, a ‘best-before’ date does not provide any indication at to when a food will cease to be safe to consume. The reliance on a ‘best-before’ date as a defense to a prosecution for selling ‘unsafe’ or ‘unsuitable’ food  would not be sufficient to demonstrate that the seller had done everything possible to ensure the food was not unsafe or unsuitable.

The second type of offences relates to ‘unsuitable foods’. Under section 12(2) of the Victorian Act it is an offence to sell food that is ‘unsuitable’. The definition of ‘unsuitable food’ in section 4E(1) includes food that:
a)     is damaged, deteriorated or perished to an extent that affects its reasonable intended use; or
b)     contains any damaged, deteriorated or perished substance that affects its reasonable intended use;

Regardless of whether a food is printed with a ‘use-by’ or ‘best-before’ date it is still possible for a food to become unsuitable, such as if a sealed package is accidentally punctured. The longer food is kept beyond its ‘best-before’ date however, the more likely that part of the food will, by itself, perish or deteriorate to the point where it affects how it can be consumed, even if it is still safe to eat. This again demonstrates how selling food after its ‘best-before’ date can increase a seller’s legal risks.

The penalty for an offence will depend on which offence has been committed. For an offence of knowingly selling unsafe food, an individual can be either fined $100,000 or imprisoned for 2 years or both. Corporations face fines of up to $500,000.  Even the lesser offence of selling unsuitable food will still attract a fine of $40,000 for individuals and $200,000 for corporations.

Implied Warranties

The Sale of Goods Acts in each State and Territory (known as the Goods Act in Victoria), operates to imply, or prevent the implication of, certain warranties or conditions when goods are sold under contract. Section 19 of the Victorian Goods Act for instance states:
there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows – ...
b)     where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not) there is an implied condition that the goods shall be of merchantable quality: Provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed;

Section 71 of the Trade Practices Act (and corresponding State and Territory Fair Trading Acts) also requires that goods which are sold be of merchantable quality and fit for all the purposes for which that type of good is normally sold. Moreover, it is not possible under the Trade Practices Act to contract out of these implied warranties. Some defences are available and professional legal advice from a specialist food lawyer should be sought in relation to the particular circumstances.

It may also be implied in some circumstances that the goods should possess certain qualities, taste and characteristics. A product sold after its ‘best-before’ date may no longer meet all these implied warranties.

If the product can be examined before being purchased, then the consumer will be taken to have seen the ‘best-before’ date, and it could be argued in some circumstances that the consumer has implied notice of a particular 'defect'. This however raises questions as to what type and degree of 'defects' can be deemed to have been revealed by examination and by noticing the 'best-before' date. This is especially so if the food is completely sealed in non-transparent packaging.

Selling food which has passed its 'best-before' date could expose the seller to an increased risk of breaching a number of different implied warranties.

Claims of Negligence

When food is sold to a consumer, the person selling the goods would owe the purchaser a duty of care to ensure that the food is safe to consume. This is because it is reasonably foreseeable that if the product was not safe for consumption, then the person who buys and consumes it will suffer harm: see for example the famous "snail in the bottle" case of Donoghue v Stevenson (1932) AC 562.

As there are numerous elements which have to be proven in a legal action based on negligence, a seller who breaches its duty of care by selling food which is unsafe will not necessarily find themselves facing an order to pay damages. As with any legal action, the facts of each particular case are critical. What is important to note, however, is that selling the out-of-date food increases the risk of such action being brought.

Insurance and other practical considerations

Retailers who decide to sell food which has passed its “use by” date must also consider the impact that this may have on their insurance coverage. Due to the increased legal risk arising from the sale of such goods, the sale of such goods may not be covered, depending on the particular policy coverage and exclusions. Also, there may be coverage but increased premiums to allow such coverage.

Finally, food retailers must consider examining the issue from a commercial perspective – if legal action is brought against the retailer for the sale of unsafe food, the seller’s reputation and goodwill might be tarnished even if the seller is ultimately found not liable by the courts. On the other hand, there will always be discount traders who are prepared to consider the risks in their trading in such products and have other legal protective mechanisms in place. Legal action, whether successful or not, will always involve considerable time and cost. Retailers must decide for themselves whether the increased risk of incurring extra cost is worth the extra profit to be derived by selling food beyond its 'best-before' date.