FoodLegal

By Joe Lederman and Kate Taylor   

FoodLegal Lawyers and Consultants    

© Lawmedia Pty Ltd, November 2012 

This article examines the responsibilities of Australian food businesses in providing either a Best Before or Use-By date on most food products. The choice and correct usage of a date-mark is not only essential to compliance with the Australia New Zealand Food Standards Code, but also carries other implications.

In Australia, all foods with a “shelf life of less than 2 years” must be date-marked.  The food business responsible for attaching the label must decide whether to use a Use-By date or a Best Before date. This will principally depend on whether these foods need to be consumed within a certain time-frame. However, there are a range of issues that should be taken into account when considering the choices and methodology for date-marking a food product.

FoodLegal Bulletin has also previously explained the methodology for determining shelf-life in our article “The Who, What, When, Why and How of Shelf Stability and the Rules for Determining Shelf Life” (December 2010).

Another issue of growing concern in deciding a date-mark is the potential environmental wastage likely to result from ‘conservative’ date-marks, and the common consumer mistake that ‘Best Before’ means ‘discard’, when this is not so. 

Food businesses should also be aware of the risks associated with using the date-mark as a ‘lot identification’ system, instead of having a discrete batching identification numbering system.

The choice of the appropriate date-mark

FoodLegal Bulletin has previously explained the legal requirements for date-marking food products in our article “’Use-By’ and ‘Best Before’ Dates on Food – What do they really mean?” (January 2007).

Standard 1.2.5 of the Food Standards Code requires that while the label on a package of food must include either a Use-By date or a Best Before date,

1. Foods must include a Use-By date where the food should be consumed before a certain date because of health or safety reasons. This indicates the date from which the food is unsafe to consume, usually in circumstances where the food becomes microbiologically unsafe for consumption before it is discernibly spoiled.

1. In circumstances where this does not apply, a Best Before date must be used.  The Best Before date simply indicates that the product may have lost some of its quality after this date passes.

FSANZ has since issued its ‘User Guide to Date Marking’ July 2010 in relation to the responsibility of the food business to choose a Use-By date or a Best Before date.

Food wastage concerns

Food businesses usually choose a Best Before date to be a date well before the time the food would be expected to deteriorate and spoil. Conservative Best Before dates are designed to encourage consumers to eat the food while it is still fresh, and they are therefore a guide only. However, supermarket stock inventory control systems do not necessarily distinguish between a Best Before date and a Use-By date.

FSANZ has indicated in its ‘User Guide to Date-marking’ July 2010 that Best Before dates ought to factor in considerations of colour, taste, texture and flavour in addition to any qualities for which food businesses make express or implied claims, such as freshness.

However, when supermarkets and consumers conflate Best Before and Use-By date-markings, this results in unnecessary wastage of safe product.

According to the Food and Agriculture Organization of the United Nations (FAO), as of June 2012, one-third of the food produced in the world for human consumption is thrown away or lost.  In industrialised countries, food waste most often happens at the retail and consumer levels.

In 2008, 1000 Victorians completed an internet survey conducted by the Victorian Department of Health, in which only 44% of respondents said that they would use eggs past their Best Before date. See http://www.health.vic.gov.au/eggs/research.htm

In the United Kingdom, a WRAP food wastage report estimated in 2008 that £10.2 billion worth of still edible food is discarded every year. This report prompted the UK government in 2011 to abandon the mandatory ‘sell-by’ dates which were required to be listed on certain products.

Solutions:

The issue of food wastage can be mitigated by greater education to increase public awareness of ‘how to check whether food is safe’ and how to optimise the quality of the food so it lasts longer (such as keeping fruit and vegetables in the fridge and bread in a cool, dark place). Food safety knowledge at consumer level could be improved.

Choice to use date-marking for traceability

Traceability is the ability of a food business to ensure that corrective action, such as a product recall, can be implemented quickly and effectively if something goes wrong. Effective traceability systems must isolate and prevent contaminated products from reaching consumers.

The Food Standards Code requires a label on a package of food to include lot identification information (See Clause 2 of Standard 1.2.2).

The Food Standards Code does not specify any particular format for the inclusion of lot identification on a label on a package of food. The lot identification must indicate, in a clearly identifiable form, the premises where the food was packed or prepared and the lot of food in question.

However, the Food Standards Code also says that businesses may rely on the Use-By date or Best Before date as a sufficient indicator of lot identification if the label includes:

a)      a Best Before or use by date; and

b)      an indication of the premises where the food was packed or prepared.

While theoretically, this may be sufficient to indicate that the food in question belongs to a particular ‘lot’ of the food, since the date-marking may enable the food business to deduce the day on which the food was produced, such a system is in contrast to the use of a specific ‘batch number’ recorded on each food product of the food business.

Problems can arise in relying on the date-marking as the means to address the traceability issue of lot identification.

Date-marking for lot identification is counter-productive and problematic where a food business uses the same date-mark for products which are packed or prepared on different production runs or, worst still, on different days.

A specific batch number for each batch, and having smaller batches each with a separate batch number, is a more effective way to isolate the bad batch. The bigger the batch, the bigger the problem of a broader recall, especially if the system can only say that all products share the same date as the batching identifier. All of them will need to be recalled.

Food businesses need to be aware that relying on date-marking alone will lead to a bigger recall of food products, even if some products were not packed or prepared in the same batch as the contaminated product. This results in wider damage to brand reputation. It is also an unnecessary false economy for food businesses in food production.

This is general information rather than legal advice and is current as of 30 Oct 2021. We recommend you seek legal advice for your specific circumstances before making any commercial decisions.