Your food products meet every safety standard. Your food date labeling complies with current regulations. Yet consumers are throwing away millions of dollars worth of your perfectly safe products because they misunderstand the dates printed on your packaging.
I know this because the regulatory disconnect around date labeling has created a compliance vacuum that damages both your bottom line and consumer trust. While 44% of Americans now believe federal agencies regulate date label phrases, the reality is that outside infant formula, no uniform federal standard exists – creating legal exposure your company cannot afford as California’s mandatory system launches in July 2026 and federal rules loom for January 2028.
This article breaks down the current regulatory framework, California’s precedent-setting requirements, the joint FDA-USDA Request for Information that closed in March 2025, and the compliance strategies your legal team needs to navigate the transition from voluntary guidance to mandatory federal standards.
Current Food Date Label Regulatory Framework: Voluntary Guidelines Without Federal Teeth
Most food manufacturers operate under a fundamental misconception about date labeling – that federal oversight exists. The truth is far more complex and legally precarious.
For meat, poultry, and egg products under FSIS jurisdiction, dates may be voluntarily applied to labels provided they are truthful and not misleading under 9 CFR 317.8, 381.129, and 590.411. When manufacturers choose to include a calendar date, they must express both the month and day. For shelf-stable and frozen products, the year must also appear. Additionally, a phrase explaining the date’s meaning must appear immediately adjacent to the date itself.
FDA regulates the vast majority of food products including fruits, vegetables, dairy, grains, packaged foods, shell eggs, and seafood. Unlike FSIS-regulated products, FDA provides no specific regulatory requirements for date labeling except for infant formula, which must include a “Use by” date under 21 CFR 107.20(c).
Both agencies recommend the voluntary use of “Best if Used By” to indicate quality, not safety. Yet this recommendation carries no enforcement mechanism. Food manufacturers remain free to use “Sell By,” “Use By,” “Enjoy By,” “Expires On,” or any other phrase – provided the labeling is truthful and not misleading under the Federal Food, Drug, and Cosmetic Act.
The legal vulnerability in this voluntary system becomes clear when examining state-level regulation. Twenty-three states maintain “negative policies” – requiring date labels for certain foods while prohibiting or limiting sale after the label date. Twenty-seven states plus the District of Columbia maintain “moderate policies” requiring labels without post-date sale restrictions. Each state defines requirements differently, creating a compliance patchwork that multiplies costs and legal exposure for manufacturers distributing products across state lines.
Consumer Confusion Drives Regulatory Momentum
The push for federal standardization stems from documented consumer harm that creates both public health risks and economic waste.
A January 2025 national survey by The Harris Poll examined 2,069 U.S. adults and found that 43% always or usually discard food near or past the label date – up from 37% in 2016. Nearly 9 in 10 consumers (88%) do so at least occasionally, compared to 84% in 2016.
More concerning from a regulatory standpoint is the widespread belief in federal oversight that does not exist. The 2025 survey found that 44% of consumers incorrectly believe federal agencies regulate date label phrases – up from 36% in 2016. Only 17% correctly identified that phrases are federally regulated only for infant formula. This false confidence in nonexistent regulation creates liability exposure for manufacturers when consumers make decisions based on misunderstood labels.
The confusion operates bidirectionally. When consumers believe “Best if Used By” indicates safety rather than quality, they may consume spoiled products that should have been discarded. Conversely, they discard safe food, creating unnecessary waste.
ReFED estimates that consumer confusion over date labels alone drives the disposal of approximately 3 billion pounds of food worth $7 billion annually. For context, U.S. consumers waste close to 35 million tons of food each year at a value of nearly $800 per person.
While an average of 87% of consumers in the 2025 survey believed they understood eight different date labels tested, only 53% answered correctly when quizzed. This confidence-competence gap creates legal exposure for manufacturers whose truthful labels are nevertheless systematically misinterpreted.
The California Precedent: AB 660 Sets the Template
On July 1, 2026, California’s AB 660 becomes the first mandatory state-level date labeling reform in the nation. The law establishes a two-category system that will likely influence federal standards.
Under AB 660, all food products sold in California must use one of two label types. For quality concerns, manufacturers must use “Best if Used By” or “Best if Used or Frozen By” to communicate peak freshness. For safety concerns, labels must state “Use By” or “Freeze By” to indicate when products should no longer be consumed.
The law prohibits consumer-facing “Sell By” dates entirely. These dates, intended for retailer stock rotation, have proven particularly confusing to consumers who interpret them as safety indicators.
The compliance implications extend beyond California borders. Food manufacturers serving the national market face a choice: maintain California-specific packaging or reformulate all labels to meet California’s stricter standard. Given California’s market size and the economies of scale in label printing, most manufacturers will likely adopt California’s terminology nationwide rather than maintain separate inventory systems.
This “California effect” – where the largest state market effectively sets national standards through its purchasing power – has precedent in automotive emissions standards and chemical disclosure requirements. Food manufacturers should anticipate similar dynamics with date labeling.
The Joint FDA-USDA Request for Information
On December 3, 2024, FDA and USDA issued a joint Request for Information seeking data to inform potential federal date labeling policy. The comment period, originally scheduled to close February 3, 2025, was extended to March 5, 2025, in response to stakeholder interest.
The RFI poses questions addressing industry practices, consumer perceptions, and the relationship between date labels, food waste, and household expenses. Key questions include:
- Industry practices: Which products contain date labels, what criteria determine the phrase used, and how do manufacturers establish shelf life periods?
- Consumer understanding: What studies exist on how consumers interpret current labels and whether they confuse quality and safety indicators?
- Economic impact: What data connect date labels to food waste volumes and the costs manufacturers would incur under standardized labeling requirements?
FDA Deputy Commissioner for Human Foods Jim Jones noted that confusion over different date labeling terms accounts for approximately 20% of food waste in the home.
The agencies did not commit to specific regulatory action. However, the detailed nature of the questions, the extension of the comment period, and the explicit connection to the National Strategy signal serious consideration of mandatory federal standards.
The January 2028 Compliance Date and Current Uncertainty
On December 31, 2024, FDA announced that January 1, 2028, will serve as the uniform compliance date for food labeling regulations published between January 1, 2025, and December 31, 2026. What remains unknown is what specific date labeling requirements will be published during that window.
The practical challenge for food manufacturers is that label changes require significant lead time. Design modifications, printer negotiations, inventory management, and distribution system updates cannot occur overnight. A regulation published in late 2026 with a January 2028 effective date provides just over one year for implementation – tight for companies with complex product lines or international supply chains.
FSIS has issued its own uniform compliance date of January 1, 2028, for meat, poultry, and egg product labeling regulations. The coordination between agencies signals the likelihood of harmonized standards covering both FSIS-regulated and FDA-regulated products.
What Food Manufacturers Should Do Now
Despite regulatory uncertainty, food companies can take concrete steps to position themselves for compliance with likely federal standards.
First, audit your current date labeling practices across all product lines. Document which labels use which phrases, how dates are determined, and what shelf-life testing supports those determinations. If federal regulations require documentation similar to USDA’s “Product of USA” standard, manufacturers maintaining robust records will face smoother compliance verification.
Second, evaluate whether your current labels align with the recommended “Best if Used By” standard for quality dates. Manufacturers using it already will face minimal disruption if it becomes mandatory. Those using alternative phrases should calculate the costs of potential label changes against the risk of maintaining non-standard terminology.
Third, review your California distribution channels and determine whether adopting AB 660’s two-category system for all products regardless of destination makes operational sense. Many manufacturers will find that maintaining California-specific and national-standard labels costs more than adopting California’s requirements universally.
Fourth, eliminate consumer-facing “Sell By” dates now if operationally feasible. These dates consistently rank as the most confusing to consumers in research studies. California has banned them outright. Federal regulations will likely follow California’s lead.
Fifth, assess your documentation practices for substantiating date labels. USDA’s approach with “Product of USA” claims – requiring manufacturers to maintain written documentation and provide it to inspectors within 24 hours of request – may preview the documentation standard for date labels.
Potential Federal Standards Based on Available Evidence
While we cannot predict with certainty what FDA and USDA will ultimately require, the available evidence suggests likely regulatory contours.
The agencies will probably mandate a two-category system distinguishing quality dates from safety dates. California’s approach – “Best if Used By” for quality and “Use By” for safety – has strong research support. However, the 2025 survey found that only 44% understood “Use By” as a safety label while 49% incorrectly thought it indicated quality, suggesting that consumer education will need to accompany any standard.
Federal regulations will likely prohibit or strongly discourage “Sell By” dates on consumer-facing packaging, as California has done.
Date placement and formatting requirements seem probable. Requirements for minimum font size, color contrast with package background, and central placement separate from other label elements would address legibility concerns documented in research.
Documentation requirements for date determinations may be included, particularly for products making safety-based “Use By” claims. Applying similar logic to date labels – requiring manufacturers to maintain written descriptions of testing protocols available to inspectors on request – would be consistent with the agencies’ existing regulatory approaches.
The Legal Exposure of Continuing Current Practices
Food manufacturers who maintain the status quo face escalating legal and financial risks even before federal regulations take effect.
Class action litigation targeting allegedly misleading date labels has proliferated. Manufacturers whose labels contribute to documented consumer confusion – even inadvertently – face litigation risk that settlements or verdicts can quickly exceed the cost of proactive label reform.
The California compliance deadline of July 1, 2026, creates immediate legal exposure for manufacturers distributing in that state. Any products packaged or labeled on or after July 1, 2026, must comply with AB 660’s requirements. Manufacturers who fail to transition face enforcement action by California authorities and potential litigation by private plaintiffs.
Finally, consumers are increasingly aware that current date labels contribute to food waste. Companies that proactively adopt clearer, more consumer-friendly labeling standards can position themselves as industry leaders in sustainability. Those that maintain confusing legacy practices risk brand damage when media coverage of date label confusion inevitably includes examples of their products.
Working with Legal Counsel on Date Label Compliance
The complexity of date label regulation – spanning federal agencies, state laws, and pending federal standards – requires experienced regulatory counsel.
Food law attorneys can review your current labels against FSIS requirements for truthful and not misleading labeling, FDA’s overarching FD&C Act standards, and California’s specific AB 660 requirements if you distribute in that state. This multi-jurisdictional analysis identifies current compliance gaps that create immediate legal exposure.
Counsel can also evaluate your shelf-life testing protocols and documentation practices against likely federal documentation requirements. For manufacturers with complex product portfolios, attorneys can perform date label audits categorizing products by safety versus quality considerations, current label terminology, and regulatory jurisdiction.
Legal counsel can also monitor the regulatory development process and submit comments when agencies issue proposed rules. Future rulemaking proceedings will offer additional opportunities for informed industry input on compliance timelines and documentation standards.
Conclusion
Food date label regulations are moving from voluntary industry guidance to mandatory federal standards. California’s July 2026 requirements have already begun this transition. Federal rules following by early 2028 will complete it.
The consumer confusion documented in the 2025 national survey – with 43% of Americans always or usually discarding food based on dates they systematically misunderstand – creates both public policy pressure for change and legal exposure for manufacturers whose current labels contribute to that confusion.
Your company’s compliance strategy should not wait for final regulations. Audit your current labels, strengthen your documentation practices, consider adopting California’s two-category system nationally, and work with experienced food law counsel to navigate the transition. The manufacturers who prepare now will face lower costs and less disruption when mandatory standards arrive.
If you need assistance evaluating your date labeling compliance position or planning for the regulatory transition, contact our office. We work with food manufacturers on USDA and FDA regulatory matters including labeling compliance, agency inspections, and enforcement defense.
