S3028

An Act concerning food date labels and supplementing and amending Title 24 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) As used in this act:

"Elevated-risk date" means the date, established by the manufacturer, indicated on the packaging or container of a food product after which there is a high level of risk associated with the consumption of the food product.

“Quality date” means a date, established by the manufacturer, indicated on the packaging or container of a food product after which the quality of the food product may begin to deteriorate, but shall still be acceptable for consumption.

“Time/temperature control for safety food" means food that requires time/temperature control for safety in accordance with the United States Food and Drug Administration Food Code, as published in 2013, to limit pathogenic microorganism growth or toxin formation.

2. (New section) a. If a food manufacturer or retail food facility chooses to include a quality date on a food product for sale or offered for sale, the quality date shall be displayed in accordance with this section.

b. The quality date shall:

(1) be displayed with the uniform phrase “best if used by”; and

(2) be expressed by the first three letters of the month, followed by the numerals designating the appropriate calendar day and year, or by expressing the calendar month numerically followed by numerals designating the calendar day and year.

c. This section does not prohibit and shall not be construed to discourage the sale, donation, or use of food after the food's quality date has passed

d. A retail food facility shall not be liable for a manufacturer’s failure to properly label a food product in accordance with this section.

3. (New section) a. A food manufacturer may include an elevated-risk date on a time/temperature control for safety food, as defined in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill), for sale or offered for sale in the State.

b. An elevated-risk date on a product shall:

(1) be displayed with the uniform phrase “expires on”; and

c. A retail food facility shall not be liable for a manufacturer’s failure to properly label a food product in accordance with this section.

d. A retail food facility shall not sell or donate a food product after the after the food’s elevated-risk date.

e. The Commissioner of Health shall determine:

1) which additional foods shall be designated a time/temperature control for safety food;

2) which foods shall be exempt from designation as a time/temperature control for safety food;

The Commissioner of Health shall post this information on the Department of Health’s Internet website.

4. (New section) a. A retail food facility shall not sell or offer for sale a food item that is labeled with a “sell-by” date, or any date that is intended to communicate primarily to a distributor or retailer for purposes of stock rotation and that is not a quality date or an elevated-risk date.

b. This section shall not prohibit the use of sell-by dates that are presented in a coded format that is not easily readable by consumers.

5. (New section) The Commissioner of Health shall establish a program to educate the public on food date labeling. The program shall include a public information campaign disseminating information about the meaning of date labels and educating consumers on how to handle food properly and when it can safely be consumed. This information shall distinguish between quality date labels that measure quality and elevated-risk date labels that indicate safety in order to reduce mistaken reliance on quality labels for judgments of food safety risk.

6. (New section) The Commissioner of Health, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of this act.

7. Section 23 of P.L.1964, c.62 (C.24:10-57.23) is amended to read as follows:

23. Containers of milk, certified milk, Vitamin D milk, homogenized milk, low fat milk, protein fortified low fat milk, skim milk, protein fortified skim milk, nonfat milk, protein fortified nonfat milk, flavored milks and dairy drinks, buttermilk, cultured buttermilk, yogurt, eggnog, creams, half-and-half and all other fluid milk products designated by the department shall be marked with the name and address of the processor or the pasteurizing plant number as assigned by the department or the state of origin and the name and address of the distributor. All containers of fluid milk products, including those mentioned above, intended for sale to consumers, (except for those products which are sterilized and packaged in hermetically sealed containers), shall be [marked with a legend "NOT TO BE SOLD AFTER" , or "SELL BY" , or any other clearly understandable legend approved by the department, followed or accompanied by the first three letters of the month where possible, but in no instance less than two letters, or numerical designation approved by the department to designate the month and the day of the month which shall be a date established by the processor and which shall be based on consideration of wholesomeness and consumer palatability of the product. If two letters are used the letters MR shall mean MARCH and MY shall mean MAY; JN shall mean JUNE and JL shall mean JULY. No fluid milk product listed in this section shall be sold or offered for sale after 11:59 p.m. of the date appearing on the containers so marked.

The processor, prior to determining the date beyond which any such fluid milk product may not be sold or offered for sale, shall notify the department of the intended "shelf-life expiration date" selected by him for such fluid milk product intended for sale. All data and material used by the processor or manufacturer in his determination of this date shall be made available to the commissioner upon request. If the data and material submitted does not, in the opinion of the commissioner, justify the "shelf-life expiration date", the commissioner shall prohibit the sale of the product until such time as satisfactory data is supplied or until a new "shelf-life expiration date" consistent with the data is applied to the product.] labeled with a quality date, in accordance with P.L. , c. (C. ) (pending before the Legislature as this bill).

The department shall periodically review the keeping quality of milk and milk products by scientific [shelf-life] tests, recognizing the different methods of pasteurization, processing and packaging, to determine that [shelf-life expiration] quality dates stated on the containers assure the consumer of acceptable quality milk and milk products when kept under normal storage conditions. Samples for [shelf-life] quality evaluation will be obtained at the processing plant, from delivery trucks or from retail outlets. The temperature of the sample at the time of collection shall be officially recorded by the collector. Nothing herein contained shall be construed to prohibit the department from taking special samples for analysis and making special tests in order to assure all milk and milk products comply with the minimum standards of freshness, quality and palatability. In the event the department determines a processor's or a manufacturer's [shelf-life] quality date for a given product is improper, the department shall immediately take such samples as are necessary for full and complete recheck of the [shelf-life] quality date of the product. If the full and complete recheck confirms that the [shelf-life] quality date of the product is improper, the department shall serve written notice on the processor or manufacturer and the processor or manufacturer immediately upon receipt of [such] the notice shall alter the [shelf-life expiration] quality date of the product to comply with the department findings. Compliance shall be with the next processing of the product after receipt of [such] the department notice. This rule does not apply to containers of fluid milk products which are not to be sold in the State of New Jersey.

(cf: P.L.1992, c.151, s.1)

8. This act shall take effect on the first day of the fourth month following enactment, except that the Commissioner of Health may take any anticipatory administrative action in advance as may be necessary for the implementation of this act.

STATEMENT

This bill standardizes food date labels, and requires the Department of Health to create a public education program on food date labeling and establish guidelines related to food safety. This bill is based on a report by the Harvard Food Law and Policy Clinic entitled, “Keeping Food Out of the Landfill: Policy Ideas for States and Localities.”

Confusing and misleading food date labels contribute to the enormous waste of food. There is currently no Statewide regulation of food date labeling in New Jersey; only milk and milk products, dairy, and certain shellfish are regulated. This bill standardizes food date labels for all food products by regulating the labels that may be used by a manufacturer. Under the bill, a manufacturer may indicate either: 1) a “quality date” label to indicate the date after which the quality of a food product may begin to deteriorate, but is still acceptable for consumption; or 2) an "elevated-risk date" to indicate the date, established by the manufacturer, after which there is a high level of risk associated with the consumption of a food product.

In addition, the bill provides that a “time/temperature control for safety food" is a food that requires time/temperature control for safety, in accordance with the 2013 United States Food and Drug Administration Food Code, to limit pathogenic microorganism growth or toxin formation. The bill requires the Department of Health to determine which additional foods are to be designated a time/temperature control for safety food and which foods are to be exempt from this designation. The department is to post this information on its Internet website.

The public education program to be established under the bill is to include a public information campaign disseminating information about the meaning of date labels, and educating consumers on how to handle food properly and when it can safely be consumed.

An estimated 40 percent of food in the United States goes uneaten, leading to 160 billion pounds of food wasted each year. The ethical, financial, and environmental repercussions of this alarming rate of wasted food are substantial. Studies indicate that in 2011, approximately 15 percent of households in the United States, at some point, lacked reliable access to a sufficient quantity of affordable, nutritious food. It has been estimated that redistributing just 30 percent of the food wasted in the United States could feed every food-insecure American their entire diet.

Our environment is adversely affected when food is wasted, as all of the resources used to produce, store, transport, and handle that food are also wasted. These resources include arable land, labor, energy, water, chemicals, and oil. One study estimates that food waste costs the average American family of four between $1,300 and $2,200 per year.