FoodLegal

By John Thisgaard (FoodLegal Co-Principal) and Austin Jenish (FoodLegal Researcher)

© Lawmedia Pty Ltd, March 2024

‘Use-by’ and ‘best-before’ dates are present on most food products, but what exactly do those terms mean? When should businesses use one or the other and how can they be substantiated? This article explores date-marking and the various issues of substantiation, selling food after expiry, penalties and more.

Definitions and requirements under the Food Standards Code

The two main types of date-marking are known as use-by dates and best-before dates, which are both regulated under Standard 1.2.5 of the Australian New Zealand Food Standards Code (Food Standards Code).

Use-by date refers to the date where the food-for-sale is ‘estimated’ to no longer be consumed for health or safety reasons. The estimation assumes the food-for-sale remains in an intact package during storage and the food is stored according to any applicable storage conditions under Standard 1.2.6.

Best-before date, on the other hand, is the point beyond which the food-for-sale is no longer ‘fully marketable’ by retaining any specific qualities for which express or implied claims have been made. The product may still be safe to consume after this date, but may have a reduced quality. The date also assumes the food remains in an intact package during storage, and that it is stored under applicable storage conditions in Standard 1.2.6.

There are also two definitions that are relevant for bread: baked-for date and baked-on date. Baked-on date is simply the date which the bread was baked. Baked-for date is either the baked-on date (if the bread was baked before midday) or the day after the baked-on date (if the bread was baked after midday).

Standard 1.2.5 prescribes three broad requirements with respect to date-marking:

1)     Food-for-sale must be date marked. Any food that has a use-by date should be marked with that use-by date. If there is no use-by date, it should be marked with a best-before date. For bread with a ‘shelf life’ of less than 7 days, the date marking information must include any of the best-before date, baked-for date or baked-on date.

However, there is no requirement to include a date mark on pack if:

·        the best before date of the food is 2 years or more; or

·        another listed exception in standard 1.2.5--3 applies.

2)     If the product has a use-by date, the food must not be sold after the use-by date.

3)     The date marking must comply with a prescribed format. For example, Best before and use-by dates must be labelled as “Best Before” and “Use By” accompanied by the date on the label.

How to determine product shelf-life

There are data matrices. Need to be selective and allow for variables. Need to be appropriate for Australia.

From a legal perspective, at the date of this article there are no specifically prescribed scientific testing methodologies that are required to determine product shelf-life (which is especially important when using a use-by date) under the Food Standards Code or under the Food Acts or any of the associated regulations of the Australian States and Territories.

Although little guidance has been provided by Food Standards Australia New Zealand (FSANZ) itself to date, the NSW Food Authority has published some guidelines on this matter, titled Shelf-life Testing.

According to the NSWFA guidance, food businesses should consider the following factors in determining a product’s shelf-life:

•        rancidity

•        texture changes

•        moisture loss

•        moisture gain

•        staling

•        flavour loss

•        light induced changes

•        enzymatic browning

•        chemical browning, and

•        microbial spoilage.

The NSWFA guidance also recommends conducting storage trials to test product stability and food safety. The storage conditions to be tested include refrigerated storage conditions of 5^oC and other appropriate storage conditions. Conditions such as pH change, water redistribution, surface growth of microorganisms, chemical migration or any other unforeseen changes to the product should be monitored.

The guidance also recommends challenge tests, where cold-tolerant pathogens are introduced to packaging prior to a cold storage trial. It should be noted that cultures of pathogenic bacteria should never be introduced into a food-processing plant and should only be performed off-site in a laboratory or research facility.

A combination of storage trials and challenge testing will help provide an estimate of a shelf-life, which can be used to determine the product date marking.

In some cases, it might not be appropriate or necessary for a business to independently undertake shelf life testing. For example, some standard products (e.g. milk, smallgoods, etc.) have been subject to extensive research that could be used in determining shelf life. Businesses using a third-party manufacturer or ingredient supplier might also rely on shelf life information provided by that third party to determine the date marking for their product.

Penalties for non-compliance

It is a breach of the Food Standards Code (and therefore a breach of the Food Act in each Australian State and Territory) to sell food after its use-by date.

In addition, State and Territory Food Acts prescribe offences in relation to the sale of ‘unsafe’ or ‘unsuitable’ food. There are three offences that are potentially relevant to date marking: the ‘serious’ offence of knowingly selling unsafe food, as well as the offences of selling unsafe food and selling unsuitable food.

For example, "unsafe food” is defined in the Victorian Food Act as food that is likely to cause physical harm to the general population, but does not include food that can only cause adverse reactions to those with uncommon allergies or sensitivities (section 4D). Food that is sold past its use-by date is likely to be regarded as unsafe.

Under Section 9 of the Victorian Food Act, a person must not sell food that they know is unsafe. If a person does, they are guilty of an indictable offence and is liable to a penalty of up to $100,000 fine or 2 years imprisonment, or $500,000 fine for a corporation.

Under Section 9A, a person must not sell food that they ought reasonably to know is unsafe. Contravening this provision will be an indictable offence liable to a fine of up to $75,000 for individuals and $375,000 for corporations.

The Food Acts also have a separate strict liability offence for selling unsafe food, meaning that a food business can be in breach for selling unsafe food even if they did not know the food was unsafe or did not intend to sell unsafe food. In Victoria, the maximum penalty is $40,000 for individuals and $200,000 for corporations.

Could selling a food after its best-before date result in breach of the law?

By definition, a food that passes its best-before date may have a loss of marketable quality, but will not necessarily be unsafe for consumption. Selling food past its best-before date therefore will generally not result in breach of the above ‘sale of unsafe food’ provisions.

However, food businesses must still monitor whether a product has become unsuitable for consumption. ‘Unsuitable’ food is defined in each Food Act and includes food that is damaged, deteriorated or perished to an extent that affects its reasonable intended use. Food that changes state, even if it is still safe to eat, could potentially be unsuitable, such as food that has irreversibly gone from liquid to solid or vice versa, or grains that have sprouted. This is because the food will no longer be fit its intended use.

Not every decline in quality will result in the food being unsuitable for human consumption. Food businesses also ought to consider the way that their product is marketed, as this may impact the intended use of the product. For example, if the probiotic and vitamin content of a yoghurt declines past its best-before date, but the product still remains safe to consume, the product is unlikely to be unsuitable. However, if a meal replacement product, which is specifically marketed to provide sufficient nutritional content to amount to a full meal, declines after its best-before date to the point where it has little nutritional content, it may become unsuitable as it will not be effective for its reasonable intended use as a meal replacement. FoodLegal can provide further advice on this matter that is specific to the marketing and circumstances of the particular product.

Maximum penalties by jurisdiction and offence (as at March 2024)

Repurposing food after expiry

Food that has passed its best-before date can still be sold but the factors and risk discussed earlier must be considered to ensure the food is not unsuitable. Food that is past its use-by date will be unsafe and therefore generally cannot be sold without alteration.

An inability to distribute food after its shelf life contributes to food waste and presents a challenge to Australian food charities. In some cases, it may be possible to extend a product’s shelf life through further processing (e.g. cooking, freezing, etc.). However, this can depend on the type of product and the processing that is undertaken, and might also require approval from the relevant authority before the label can be updated. Any processing must ensure the repurposed food becomes microbiologically safe and does not become contaminated in that process. A business considering repurposing food ought to obtain specialist advice.

This is general information rather than legal advice and is current as of 6 Mar 2024. We recommend you seek legal advice for your specific circumstances before making any commercial decisions.