Food Standards Agency guidance on the application of date marks to food (England)

The Food Standards Agency seeks views on the revised guidance to compliance with legal requirements for the date marking of pre-packed food under the UK Food Labelling Regulations 1996 as amended, implementing Directive 2000/1013/EC relating to the labelling, presentation and advertising of foodstuffs.

Food law requires pre-packed food to carry one of two types of date marks; a 'minimum durability' ('best before' date) or a ‘use by’ date, however, there is no specified list in law of which types of food products should carry which date mark. The 'best before' date will be appropriate to most foods, and is the date until which the food will retain its specific properties when properly stored, e.g. it will not be stale. For food which is microbiologically highly perishable and is, in consequence, likely after a short period of time to pose an immediate danger to human health, a 'use by date' is required. The Agency published guidance on which food should carry a 'use by' date in 2003 (see link below). The document aimed to give guidance to food businesses involved in the manufacture, production and retail of pre-packed food on when and how to give a ‘use by’ date on food labels. It included factors that should be considered when deciding to apply a ‘use by’ date as well as examples of the types of food that could carry a ‘use by’ date.

There has been some criticism of the current guidance by stakeholders in recent years, including food businesses and enforcement authorities. The former noting that the guidance restricted room for applying the dates it felt necessary. The latter noting that the ‘use by’ date mark was inappropriately being applied in some cases, resulting in its extension to a wider range of products than should be the case. This guidance has been produced to update the information and address the issues raised above.

Feedback from enforcement officers is that small firms can find legal compliance guidance documents difficult to use. Therefore a short simplified version of the full guidance has been produced which should help to make information in the full document more accessible to them. However, it would still be important for the food business operator to consider whether or not they have the in-house expertise to determine the date mark, and where they do not have this expertise, the recommendation would be for them to source this advice to ensure the accuracy and appropriateness of their food date marking.

In order to assist food businesses in their application of date marks, the Agency has updated and clarified the guidance, and expanded it to include guidance on 'use by' and ‘best before’ dates. The guidance sets out key principles that should be considered when determining date marks, including a flow chart to aid the date-marking decision-making process. This should help food businesses set date marks in a way that complies with the law and is more consistent, thereby promoting a high level of consumer protection from inappropriate date marking and confusion around date marks. There is also the potential to reduce food waste. A simplified, two-page version of the guide to legal compliance is also being issued in order to help small businesses.

The draft guidance has also been revised to align it with the standard FSA template.

Key proposals:

• Updated and comprehensive guide to compliance with the legal requirements for the setting of date marks as required by the Food Labelling Regulations (1996 as amended).
• A best practice section setting out key principles that should be considered when setting date marks, including a decision tree to assist food businesses in their date-marking decision-making process. This will provide a framework to facilitate a more consistent and appropriate approach to setting date marks.
• A simplified, two-page version of the guidance is also being issued particularly to help small businesses in complying with the legal requirements for setting date marks.
• A section with an industry-generated example of how a ‘use by’ date and a ‘best before’ date might be arrived at for two food products, using the flow chart.
• A section which discusses shelf-life and how it is determined.

The Waste and Resource Action Programme (WRAP) and the FSA hosted a joint event in February 2009 on food waste, at which it was agreed, as part of wider actions looking at how food businesses use date markings and display, the guidance on ‘use by’ dates should be amended. Subsequently, the FSA set up a key stakeholder working group, including representatives from across the food industry and enforcement, to consider the issues were and how the guidance could be amended. The group has helped to produce the two pieces of guidance on which we are consulting.

The consultation will run for 12 weeks. Interested parties are encouraged to contact the Agency with any comments or queries they may have.

A summary of responses received will be published on the Agency’s website within three months of the end of the consultation. All responses received will be considered by the Agency when finalising the revised guidance for publication. Where comments have not been taken into account, reasons for this will be given in the consultation response summary.

Questions asked in this consultation:

Guidance

1. Do you agree that the amended guidance (Part 1 of the document) on compliance with the law is helpful and adequately and clearly reflects the requirements of the legislation? If you disagree with any of it please state the reason(s) why.
2. Is Part 2 of the document setting out key principles that should be considered in setting date marks. How might this section be improved?
3. Part 2 also includes a decision tree to illustrate how the key principles might be applied in the date-marking decision-making process and includes some examples of particular food groups. One concern is that citing examples might encourage blanket use of the tree without the necessary risk assessment. We would like to have your views on this.
4. Is there any additional information that should be included in the guidance?

Impact Assessment

1. Do you foresee any negative or positive impact resulting from the introduction of the guidance? Please quantify the impact.
2. Is the ‘production manager the appropriate job function for the calculation of familiarisation costs? If not, please provide alternatives with evidence if appropriate.
3. Are the time and cost estimates for familiarisation with the new guidance as a whole realistic? Please provide alternative estimates with evidence if appropriate.
4. We invite stakeholders to comment on the IA, and in particular, to provide evidence of alternative assumptions and/or other costs and benefits not included.
5. How long would it take a small business to read the new, simplified version of the guidance?

The Agency welcomes all comments on the draft revised guidance and new guidance for small firms and associated impact assessment from all stakeholders. In particular, food businesses, doctors and other health professionals, charities and other national associations of medical, nutrition or dietetic professionals and enforcement authorities are encouraged to respond with their views.

Responses are required by close 16 June 2010. Please state, in your response, whether you are responding as a private individual or on behalf of an organisation/company (including details of any stakeholders your organisation represents).

This consultation has been prepared in accordance with the HM Government Code of Practice on Consultation, which states that a consultation must follow better regulation best practice, including carrying out an Impact Assessment (Regulatory Impact Assessment in Scotland). The assessment is included in the consultation documents.

We are interested in what you thought of this consultation and would therefore welcome your general feedback on both the consultation package and overall consultation process. If you would like to assist us to improve the quality of future consultations, please feel free to share your thoughts with us by using the consultation feedback questionnaire.

Consultation feedback questionnaire (Word)

Consultation feedback questionnaire (pdf)

In accordance with the FSA principle of openness our Information Centre at Aviation House will hold a copy of the completed consultation. The FSA will publish a summary of responses, which may include personal data, such as your full name. Disclosure of any other personal data would be made only upon request for the full consultation responses. If you do not want this information to be released, please complete and return the Publication of Personal Data Form. Return of this form does not mean that we will treat your response to the consultation as confidential, just your personal data.

Data protection form (Word)

Data protection form (pdf)

Within three months of a consultation ending we aim to publish a summary of responses received and provide a link to it from this page.

If, after three months, the summary is still not showing, please contact the person who was responsible for the original consultation. Alternatively, you can contact the FSA Consultation Co-ordinator by email: consultationcoordinator@foodstandards.gsi.gov.uk