S.Amdt. 3229

SA 3229. Mr. BLUMENTHAL submitted an amendment intended to be
proposed to amendment SA 3224 proposed by Mr. Roberts (for himself and
Ms. Stabenow) to the bill H.R. 2, to provide for the reform and
continuation of agricultural and other programs of the Department of
Agriculture through fiscal year 2023, and for other purposes; which was
ordered to lie on the table; as follows:

At the end of subtitle E of title XII, add the following:

SEC. 125__. FOOD DATE LABELING.

(a) Definitions.--In this section:
(1) Administering secretaries.--The term ``administering
Secretaries'' means--
(A) with respect to products described in paragraph (4)(A),
the Secretary; and
(B) with respect to products described in paragraph (4)(B),
the Secretary of Health and Human Services.
(2) Food labeler.--The term ``food labeler'' means the
producer, manufacturer, distributor, or retailer that places
a date label on food packaging of a product.
(3) Quality date.--The term ``quality date'' means a date
voluntarily printed on food packaging that is intended to
communicate to consumers the date after which the quality of
the product may begin to deteriorate, but the product remains
apparently wholesome food (as defined in section 22(b) of the
Child Nutrition Act of 1966 (42 U.S.C. 1791(b))).
(4) Ready-to-eat product.--The term ``ready-to-eat
product'' means--
(A) with respect to a product under the jurisdiction of the
Secretary, a product that--
(i) is in a form that is edible without additional
preparation to achieve food safety and may receive additional
preparation for palatability or aesthetic, epicurean,
gastronomic, or culinary purposes; and
(ii) is--

(I) a poultry product (as defined in section 4 of the
Poultry Products Inspection Act (21 U.S.C. 453));
(II) a meat food product (as defined in section 1 of the
Federal Meat Inspection Act (21 U.S.C. 601)); or
(III) an egg product (as defined in section 4 of the Egg
Products Inspection Act (21 U.S.C. 1033)); and

(B) with respect to a food (as defined in section 201 of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321))
under the jurisdiction of the Secretary of Health and Human
Services--
(i) a food that is normally eaten in its raw state; or
(ii) any other food, including a processed food, for which
it is reasonably foreseeable that the food will be eaten
without further processing that would significantly minimize
biological hazards.
(5) Safety date.--The term ``safety date'' means a date
printed on food packaging of a high-risk ready-to-eat
product, which signifies the end of the estimated period of
shelf life under any stated storage conditions, after which
the product may pose a health safety risk.
(b) Quality Dates and Safety Dates.--
(1) Quality dates.--
(A) In general.--If a food labeler includes a quality date
on food packaging, the label shall use the uniform quality
date label phrase under subparagraph (B).
(B) Uniform phrase.--The uniform quality date label phrase
under this paragraph shall be ``BEST If Used By'', unless and
until the administering Secretaries, acting jointly, specify
through rulemaking another uniform phrase to be used for
purposes of complying with subparagraph (A).
(C) Option of labeler.--The decision to include a quality
date on food packaging shall be at the discretion of the food
labeler.
(2) Safety dates.--
(A) In general.--The label of a ready-to-eat product that
meets the criteria established under subparagraph (C)(i)
shall include a safety date determined under subparagraph
(C)(ii) that is immediately preceded by the uniform safety
date label phrase under subparagraph (B).
(B) Uniform phrase.--The uniform safety date label phrase
under this paragraph shall be ``USE By'', unless and until
the administering Secretaries jointly specify through
rulemaking another uniform phrase to be used for purposes of
complying with subparagraph (A).
(C) High-risk ready-to-eat products.--The administering
Secretaries, acting jointly, shall issue guidance--
(i) establishing criteria for determining the conditions
under which ready-to-eat products may have a high level of
risk associated with consumption after a certain date; and
(ii) for determining safety dates for high-risk ready-to-
eat products described in clause (i).
(3) Quality date and safety date labeling.--
(A) In general.--The quality date and safety date, as
applicable, and immediately adjacent uniform quality date
label phrase or safety date label phrase shall be--
(i) in single easy-to-read type style; and
(ii) located in a conspicuous place on the package of the
food.
(B) Date format.--Each quality date and safety date shall
be stated in terms of day and month and, as appropriate,
year.
(C) Abbreviations.--A food labeler may use a standard
abbreviation of ``BB'' and ``UB'' for the quality date and
safety date, respectively, only if the food packaging is too
small to include the uniform phrase described in paragraph
(1)(B) or (2)(B), as applicable.
(D) Freeze by.--A food labeler may add ``or Freeze By''
following a quality date or safety date uniform phrase
described in paragraph (1)(B) or (2)(B), as applicable.
(4) Sale or donation after quality date.--The sale,
donation, or use of any product shall not be prohibited based
on passage of the quality date of the product.

[[Page S4641]]

(5) Education.--Not later than 1 year after the date of
enactment of this Act, the administering Secretaries, acting
jointly, shall provide consumer education and outreach on the
meaning of quality date and safety date food labels.
(6) Rule of construction; preemption.--
(A) Rule of construction.--Nothing in this section
prohibits any State or political subdivision of a State from
establishing or continuing in effect any requirement that
prohibits the sale or donation of foods based on passage of
the safety date.
(B) Preemption.--No State or political subdivision of a
State may establish or continue in effect any requirement
that--
(i) relates to the inclusion in food labeling of a quality
date or a safety date that is different from or in addition
to, or that is otherwise not identical with, the requirements
under this section; or
(ii) prohibits the sale or donation of foods based on
passage of the quality date.
(C) Enforcement.--The administering Secretaries, acting
jointly and in coordination with the Federal Trade
Commission, shall ensure that the uniform quality date label
phrase and uniform safety date label phrase are standardized
across all food products.
(D) Savings.--Nothing in this section, any amendment made
by this section, or any standard or requirement imposed
pursuant to this section preempts, displaces, or supplants
any State or Federal common law rights or any State or
Federal statute creating a remedy for civil relief, including
those for civil damage, or a penalty for criminal conduct.
(7) Time temperature indicator labels.--Nothing in this
subsection prohibits or restricts the use of time-temperature
indicator labels or similar technology that is consistent
with the requirements of this section.
(c) Misbranding Violation for Quality Dates and Safety
Dates in Food Labeling.--
(1) FDA violations.--Section 403 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 343) is amended by adding at the
end the following:
``(z) if its labeling is in violation of section 402 of the
Food Recovery Act of 2017 (relating to quality dates and
safety dates).''.
(2) Poultry products.--Section 4(h) of the Poultry Products
Inspection Act (21 U.S.C. 453(h)) is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period at the end
and inserting ``; or''; and
(C) by adding at the end the following:
``(13) if it does not bear a label in accordance with
section 402 of the Food Recovery Act of 2017.''.
(3) Meat products.--Section 1(n) of the Federal Meat
Inspection Act (21 U.S.C. 601(n)) is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period at the end
and inserting ``; or''; and
(C) by adding at the end the following:
``(13) if it does not bear a label in accordance with
section 402 of the Food Recovery Act of 2017.''.
(4) Egg products.--Section 7(b) of the Egg Products
Inspection Act (21 U.S.C. 1036(b)) is amended in the first
sentence by adding before the period at the end ``or if it
does not bear a label in accordance with section 402 of the
Food Recovery Act of 2017''.
(d) Regulations and Guidance.--
(1) In general.--Not later than 2 years after the date of
enactment of this Act, the administering Secretaries, acting
jointly, shall--
(A) promulgate final regulations for carrying out this
section and the amendments made by this section (other than
subsection (b)(2)(C)); and
(B) issue the guidance required by subsection (b)(2)(C).
(2) Updates to guidance.--Not less frequently than once
every 4 years, the administering Secretaries, acting jointly,
shall review and, as the administering Secretaries determine
to be appropriate, update the guidance required by subsection
(b)(2)(C).
(e) Delayed Applicability.--This section and the amendments
made by this section shall apply only with respect to food
products that are labeled on or after the date that is 2
years after the date on which final regulations are
promulgated under subsection (d)(1)(A).
(f) Report to Congress.--Not later than 5 years after the
date of enactment of this Act, the administering Secretaries,
acting jointly, shall report to the appropriate committees of
Congress on rates of compliance of food labelers with the
food date labeling requirements under this section and the
amendments made by this section.
______