What is the state's position with regards to the sale of perishable items that have past their coded expiration date? In addition, what are the obligations of a merchant to keep items that are clearly marked "Must be refrigerated" under refrigeration? Beyond the ethical difficulties involved, does placing a shopping cart proclaiming "priced as marked" and filled with packages of margarine two to six months beyond the coded expiration date, and at room temperature, present any kind of health violation in the State of Missouri?
I want to begin by saying that I cannot speak “for the state” in any official capacity but here is an attempt at an answer and explanation to your inquiry.
What is the state's position with regards to the sale of perishable items that have past their coded expiration date?
I am not certain what the law has to say about expiration dates in your area, and the law varies widely among jurisdictions. Your local environmental health inspector is the best source of information about food law in your area. You could also contact the Missouri Department of Health, Environmental Health and Safety at (800) 392-7245.
Coded expiration dates on foods are generally used
to protect a company against liability related to
product quality, which is not necessarily related to
product safety. This is different than the expiration
dates on drugs, where there are many issues of safety
and potency. In foods it is not as critical an issue
from the viewpoint of safety. For example, milk held
past the expiration date may be clotted and smell, but
it is almost certainly safe – just as yogurt and
buttermilk is. A canned biscuit past its expiration date
may explode out of the package and smell of alcohol, but
it could be cooked and eaten with no ill effects. I
cannot think of an instance where the code date on a
food product is really a safety date.
On the other hand, a store with product inventory
that has passed the expiration date should contact their
supplier and have the product returned to the
manufacturer. Most companies would rather pick the
product up off the shelf rather than have the product go
into a consumer’s hand. Usually the store will be given
a credit for the unsold material. If they cannot get
some type of credit, they should consider changing
suppliers. Most of this “past date” product is given to
food recovery operations where there should be someone
who is trained to assess risks and benefits associated
with the various products. The recovered food is a
valuable resource for food banks and helps to reduce the
costs associated with disposal in land fills.
Thus, food past the expiration date are low risk,
and the health inspectors may not consider it important
enough to take action on. They are severely understaffed
and they are trying to focus on the most pressing issues
of public health in their area.
In addition, what are the obligations of a merchant to keep items that are clearly marked "Must be refrigerated" under refrigeration?
This is somewhat simpler. Products designed for refrigerated storage should be kept below 41°F by Missouri law. Potentially hazardous foods are of particular concern as there are potential safety implications as well as quality issues associated with this practice. Depending on the product, the safety issues may be non-significant, but without careful analysis it would be unwise to ignore a manufacturer’s instructions. I would assume the health department could close a facility if they repeatedly refused to follow clear instructions. If I was the manufacturer, I would want to know someone was abusing my product because of the potential liability as well as the loss of goodwill that might result.
Beyond the ethical difficulties involved, does placing a shopping cart proclaiming "priced as marked" and filled with packages of margarine two to six months beyond the coded expiration date, and, at room temperature present any kind of health violation in the State of Missouri?
Again, I cannot speak as a legal authority, but it would be my understanding that this would not be an allowable practice. I hasten to note that by the very nature of margarine, this practice would be unlikely to cause a major food safety threat. And personally, I suppose if I needed a bunch of margarine, I did not care what it tasted like and I was going to cook it, I might be willing to purchase the product. But then I am qualified to make that determination and would not sue anyone if my judgment were wrong. If I was the store owner or manager however, I would not be willing to sell such a product to anyone, just because of the liability involved.
Douglas L. Holt, Ph.D., Chair, Food
Science and Extension Specialist, University of
Last update: Tuesday, May 05, 2009