My second round of inquiry into The Dating Game report by NRDC, which explains how the food dating system drives food waste in America, was with two authors of the report itself- Emily Broad Lieb, who directs the Harvard Law School Food Law and Policy Clinic, an expert on the legal system that contributes to this situation, and Dana Gunders, NRDC’s resident scientist on food waste.

My chat with Emily Leib:

What is the Harvard Law School Food Law and Policy Clinic, and how did the Clinic become involved in this report?

The Clinic is an experiential learning program in which law students are able to engage in practical, hands-on training working with real world clients to impact food laws and policies.

Our work on expiration dates started as a project addressing the needs of our client, Doug Rauch, who was looking to start a new model of food store that would sell food that was still good but might otherwise go to waste. After conducting some research for him on all of the state laws regarding food expiration date labeling, we realized that the system was in major need of an overhaul and we thought this was a great way to use the clinic’s energies. This is an area where the legal system, rather than improving a social issue, is actually at fault for creating more food waste and reduced consumer safety.

The first thing that stood out to me in looking at the report is that the food labeling system is described as “confused.” Why would you say that is?

The system most definitely is confused! It is such a mess that it is hard to even call it a “system.” Since there is an absence of regulation at the federal level, states have stepped into the void and are regulating food labeling in a range of different ways.

We had trouble finding any two states that had the same rules. As an example, New York does not require dates on any foods and does not regulate the sale of foods after dates that are voluntarily placed, but the six neighboring states all have requirements that certain foods are labeled and/or regulate sale of foods after those dates. The very fact that states are so inconsistent with one another shows that these dates have nothing to do with food safety, because food safety outcomes are not varying from state to state based on these date labeling laws.

Yet all of this confusion is hidden from consumers, so that it appears as a “system” to consumers and they treat date labels as if they are meaningful. Most people we talk to are shocked to find out that the terms used are undefined, that there are no rules about how dates are set, and that the labels are so inconsistently regulated.

When I see a “sell by” date on a package, what does that actually mean?

“Sell by” generally is a date that is intended for manufacturers to communicate to retailers so that retailers will know when something needs to be sold by so that it still has shelf life for the consumers, and otherwise should be rotated off the shelves. But because there is no set legal definition of this term, this is not always the case. In fact, some states treat “sell by” as if it is the same as “use by” and “best before”. But in general, I think consumers can look at sell by and know that this is intended as a stock rotation date and that foods are still safe and fresh for a few days after that date.

What about ‘use by’ or ‘best by’ dates? What is the difference between those two categories?

Again, since these dates are not defined, there is no set meaning for these terms. And in the US, there is no consistent difference between the two – they are often used interchangeably. In other countries, like in the EU, “use by” is linked with safety, and “best before” with quality, but this is not necessarily the case in the US.

The report focuses on how the labeling system ends up inadvertently creating food waste, but you also reference how under-regulation of the food labeling system also causes food safety issues. Can you explain that?

The main issue is that consumers not only rely on food dates as a reason for tossing food that is still perfectly edible and safe, but they also seem to believe that all foods will be safe prior to the expiration dates, so they will continue to eat food that has actually been stored or handled unsafely. So the overreliance on dates and the misunderstanding of dates as safety indicators causes problems on both ends.

How could federal regulations of food labeling be improved?

After conducting all of this state and industry research, as well as looking at the impacts on consumers, I’m convinced that improving and standardizing the inconsistent and ineffective system of date labels would help consumers maximize their food budgets, reduce food and resource waste, and improve food safety. In my mind, the most straightforward way to do this is using federal regulation. This is not to say that industry could not do a lot of good with voluntary changes, but because there is such a range of state laws regarding date labels and they are so different from one another, there are actually some limitations on what changes industry can make. So unless the really strict states change their rules or until the federal government steps in to create uniform rules, industry action can be a great first step but may not be able to get us to the best system. That said, because I assume it costs a lot for companies to keep up with all the state laws (many of which are still changing – four states passed new expiration date laws in 2012), I think there are also benefits to industry in terms of reduced administrative costs if they have a uniform law.

How has this work affected you personally?

Starting to do work in this area has completely changed my household’s consumption habits – we spend much more time looking into the best ways to store food so it lasts longer and we never throw food away on any “expiration” date unless it looks or smells bad or we know we have had it for longer than we should. We have only had good experiences doing this – we are saving food and saving money!

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My chat with Dana Gunders, NRDC’s project scientist on food and agriculture:

What got you interested in this report to begin with?

The report stems from a larger report we worked on, the Wasted Report, where we looked at the drivers and extent of food waste across the country. We landed on expiration dates as one topic that’s driving food waste, and a system that’s not really serving consumers or industry at all.

I’m interested in this idea that it’s not serving consumers or industry. Can you tell me more about that?

Consumers are interpreting these dates to mean that food is unsafe to eat, or that there’s some safety implication behind the dates, whereas in fact the dates are really about quality. They’re thinking it’s an objective, rational system, whereas in fact there’s a great amount of subjectivity to the whole thing. Not too long ago, I went into a Trader Joe’s store and took a look at the milk section. All the milk is Trader Joe’s branded, and on the same type of milk, between the gallon and half gallon, there were two different types of dates. Fat free milk, with half gallon and quart, the same product had different information- one was a Best By date and one had no letters on it. Same exact product and totally different dating system.

There’s confusion in the industry as well- the lack of standardization is causing industry money. There’s a report put out by the industry in 2003 where they estimate there’s $900 million worth of product not being sold because of expiration date. Some portion of that they attribute to lack of standardization.

A former CEO of a grocery chain told me a story that they were buying the same meats as the competitor across the street, but their store was putting the date three days out, whereas the competitor was putting it as five days out. They thought they were making the product seem fresher that way, but when they started interviewing people they found they were going across the street to purchase meat, because they were assuming that with five days out it had more time left and was therefore fresher. They changed it and all was well. But that’s how arbitrary some of these dates can be.

What are the environmental implications for this kind of food waste?

Across the country, about 40% of food never gets eaten. When you think about the fact that in the US, 80% of our fresh water consumption, over half of our land area, and 10% of our energy budget goes to putting food on our tables. If we’re not eating that food, that’s a terrible use of those resources. In the UK, a study of British households showed that in homes, 20% of the waste that is really avoidable was coming from confusion over expiration dates. Our estimate is very back of the envelope, but if we apply that in the US, households could be spending between $275 and $455 dollars a year as a family unit on food that they’re throwing out prematurely.

What are NRDC’s recommendations to improve this situation?

The bottom line is that we would like to see a less confusing and more standardized system of dates. 91% of people reported throwing food away out of concern for its safety on the sell by date, at least occasionally--and that’s the date manufacturers are using to guarantee to the store the product will have shelf life left after it’s purchased. (From an industry report called the US Grocery Shopper Trends 2011, by Food Marketing Institute- the major trade association for food retailers.) Our first recommendation is to hide that sell by information and replace it with a date that is more helpful for consumers, so they don’t throw their food away on that date thinking it’s bad.

Our second recommendation is to have a consumer-facing dating system that’s much more clear in what it’s trying to convey. There should be a clear distinction as to whether it’s a quality date or a safety date, and perhaps more transparency as to how that date was arrived at.

If it’s a safety message, then let’s use those words. Let’s say, “Unsafe to eat after.” If it’s about peak quality, then let’s use words that clearly convey that. Maybe we should use something like “Maximum freshness before” or “Peak quality before”.

If I want my food to be as good as it can be, should I still pay attention to the sell by date?

That date is the manufacturer’s suggestion for when it’s at its very peak quality. What does it mean to not be at its peak quality? It depends on which product. If you think about a box of Mac N Cheese that has a date of March 2015- what’s going to happen if you eat that in May 2015? You probably won’t be able to tell the difference.

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This is Part 2 of a two-part series. See Part 1 here: Dr. Ted Labuza on Slime, Bombs, and Rot