Use By Date Advice

We have been working to clarify the position and to provide the framework which will help enforcement officers in these situations.

1) Retail display of food with expired 'use by' dates – if the 'use by' date on the label has expired, that food must be considered unsafe in accordance with Article 14 (2) to (5) of Regulation (EC) No 178/2002. There is no requirement for the Enforcement Officer to demonstrate that the food is actually unsafe nor is it a defence for the FBO to carry out analyses with a view to suggesting that the food is safe. The Officer should follow standard procedures for dealing with food which should not have been placed on the market.

2) Changing 'use by' date at retail – Where a retailer amends a date mark in any way, they should change the FBO details on the pack and be able to provide appropriate evidence of how the new date mark has been validated as microbiologically safe as part of their food safety management system. However, a 'use by' date cannot be amended in isolation. instructions for use need to be provided in relation to storage, de-frosting, cooking etc. and consideration is required as to the product's name or description.

3) Changing 'use by' date, freezing and altering FBO details on the pack (retail) – Retailers and caterers who wish to freeze products will need to demonstrate that they have the technical knowledge to do this safely and make the necessary amendments to the label, including where appropriate, the date of first freezing (which may not be the date that this FBO froze the product, if it is a 'defrosted' product to begin with). This must be reflected in the HACCP-based food safety management system.

4) Delicatessen slicing cooked ham – Delis should have internal traceability systems in place in order for them to tally the product for sale at the deli counter with the mandatory information, including the 'use by' date of the original product. If there is no date marking on the food, nor a system to ensure that food is not placed on the market after its 'use by' date, then that food should be regarded as being unsafe.

5) Caterer reheating pies – Reheating food past its 'use by' date is not a defence. it is still placing food considered to be unsafe onto the market. At the time the pies are being held for the purpose of sale so they are being placed on the market after the 'use by' date regardless of the subsequent heating process.

6) Caterer holding foods with expired 'use by' dates in the fridge and claims the food will be used as ingredients in cooked products – The caterer must not use the product or extend its shelf life by freezing it down once the 'use by' date has expired.

7) Caterer holding foods with expired 'use by' dates in the freezer – The FBO must be able to demonstrate when freezing was undertaken as otherwise there would be no proof that this was undertaken prior to the 'use by' date expiring. One way to show this would be to date mark the product with the date it was frozen and an indication of how much of the shelf life was remaining. The FBO would be expected to have a robust system in place in order to be able to prove when the food was frozen and when the food was brought out of the freezer.

to be defrosted. If the FBO cannot satisfactorily demonstrate when the product was frozen, the food will be considered unsafe in accordance with Article 14 of 178/2002, and will have to be disposed of. The inability to substantiate date of freezing etc. would also breach the provisions for a food safety management system based on HACCP principles.

8) Wholesaler holding frozen products with expired 'use by' dates who claims they were going to be stripped of packaging before being sold on still frozen but with best before dates – When the 'use by' date has expired, food must be considered as unsafe in accordance with Article 14(2) to (5) of Regulation (EC) No 178/2002 unless there is appropriate evidence that the date of freezing was prior to the expiry of the 'use by' date. Where this is demonstrated, the product cannot be sold to the final consumer in that state, but could be supplied to other FBOs with instructions on how the product can be used. Those FBOs can later defrost the food and use it as an ingredient for further processing for food which is intended to be served directly to the final consumer. The FBO should ensure instructions on how the product can be used.

9) Caterer holding food products with expired 'use by' dates in the freezer. The products have been marked with the date of freezing. Full records of the date of freezing and intended use as an ingredient can be provided – This is acceptable. The date mark on the food label cannot be extended but the life of the product can be extended through safe freezing and defrosting procedures.