Most parents, including me, reasonably expect that, if a retailer sells them baby food or infant formula products, the items are not “expired” and unsafe for consumption or use. Surprisingly, until recently, in California and perhaps other states, such retail practices were actually permissible under existing health and safety statutes. California Assembly member Richard Pan (D-Sacramento) introduced a bill, AB 688, to put a stop to this. His legislation also applied to the sale of expired over-the-counter drugs. While such legislation has been introduced before, and previously failed, this time it has become law.
Federal regulations and current state law require infant formula to declare a “use by” date on their product labels. No such requirements, however, have existed for baby foods, “although most food processors voluntarily list a ‘use by’ date on their baby food labels to assist with stock rotation.” (AB 688 Bill Analysis, Senate Health Committee, July 6, 2011.) While such labeling may have been provided, retailers were not prohibited under California Health & Safety Code from selling infant formula and baby food products that exceeded the “use by” date.
At a California Senate Health Committee hearing earlier this year, a father recounted his experience of feeding his infant son a jar of baby food that he had recently purchased at a local grocery store. His son awoke at 11 p.m. that night vomiting violently. He testified that he and his wife couldn’t think of anything that could have made their baby sick. The next morning, they examined the jars of recently purchased baby food and discovered that the expiration dates on the jars had passed six to eight months previously. He stated that he wanted to give the retailer the benefit of the doubt and thought that it would have been impossible to have been sold jars of expired baby food. He returned to the store and within moments of inspecting the store shelves found numerous jars that were expired by several months.
This father’s experience wasn’t unique. Prompted by consumer reports about expired products on store shelves in Southern California, the California Attorney General initiated an undercover investigation of retailers in March 2008. The investigation revealed 48 expired products on the shelves of 26 CVS pharmacies located in Los Angeles, Orange, and San Diego counties. “The investigators found that some of the expired products, which included baby formula, toddler food, and over-the-counter medications, were between four and six months too old. The investigation noted that some of the products’ ‘sell by’ dates were hidden with price tags or other store stickers.” Id. CVS entered into a settlement agreement with the Attorney General that permanently enjoined CVS “from selling or offering to sell expired products to any person at a CVS store in California, among other things.” Id.
AB 688 was simple, but sweeping. The version of the bill that reached the Governor’s desk requires that a retailer “shall not sell or offer for sale after the ‘use by’ date, infant formula or baby food that is required to have this date on its packaging.” In addition, it prohibited retailers from “sell[ing] or offer[ing] for sale after the expiration date an over-the-counter drug.” Id.
Former California Governor Arnold Schwarzenegger vetoed similar legislation when the California Legislature passed it and presented it for his signature in October 2009. His veto message stated that it was “unnecessary” and that current law already had “strong provisions and accompanying penalties for adulterated food and drug products.” Governor Schwarzenegger veto message of AB 1512, October 11, 2009. Similarly, the California Retailers Association and the California Grocers Association argued that AB 688 would provide another layer of unnecessary regulations and that “[s]tandard business practices dictate that when a customer purchases an expired product and brings it to the attention of the store, they will either receive an exchange or a full refund.” AB 688 Bill Analysis.
However, refunds and exchanges do nothing to ensure that parents and their children are protected from inadvertent purchases of expired baby food and infant formula products (particularly where expiration dates are hidden by price tags and other store stickers). And they certainly do nothing to protect a child from consuming a product when the parent doesn’t realize he or she bought an expired one by mistake. Previous laws and regulations were entirely insufficient.
Last month, California Governor Jerry Brown – who was the Attorney General presiding over the investigation of retailers in March 2008 – signed the bill into law, recognizing the need for and importance of this legislation. This new law will provide important consumer and health protections that help prevent children from becoming dangerously ill after consuming expired products, as well as prevent adults from becoming ill as the result of using expired drugs that are no longer potent or have become spoiled. According to the Consumer Federation of California, “AB 688 makes California a national leader in prohibiting the sale of these expired products.” Consumer Federation of California, Gov. Brown Signs Consumer Federation-Sponsored AB 688 (Pan), Oct. 11, 2011.
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