New Documentary Exposes How Montana's Milk-Expiration Rules Waste Food

Milk that's still fresh is declared "expired" and must be thrown away.


Credit: mapper-montag / photo on flickr

Earlier this month, an excellent, short new documentary debuted. It focuses on one type of state laws that senselessly promote food waste.

The documentary, Expired? Food Waste in America, is produced by the Harvard Food Law and Policy Clinic and Racing Horse Productions. It uses the clear shortcomings of a mandatory Montana milk-expiration-date law as a hook to illustrate broader problems with state food expiration-date mandates.

(Expired is my favorite theatrical treatment of milk expiration dates since the award-winning 2011 short film Expiration.)

Under that law, Montana requires that any milk sold in the state have been pasteurized within the previous 288 hours, or 12 days. Grocers must throw away any milk not sold within the 288-hour window. The law does not permit the milk to be donated. The measure is the strictest in the nation. In fact, only one other state—Pennsylvania—has a similar window, and it sets the limit at 17 days.

The Montana measure is clearly intended to protect Montana milk producers. There's no safety or freshness justification for the law, which is hardly a relic of pre-refrigeration days, as it was implemented only 35 years ago. Besides lacking a legitimate food-safety basis, it's also clear that Montana's law promotes food waste.

"Out of state dairies often can't get milk to the store quickly enough for it to be put on the shelf in time to be sold (since consumers want milk with at least a few days on it), so many out-of-state dairies are no longer selling in Montana," says Harvard Law School Prof. Emily Broad Leib, one of the film's producers, in an email to me this week. "According to local advocates, milk in Montana also costs a lot more than milk in surrounding states."

"Montana has a law for 12 days, but studies have shown that it's just as fresh after 28 days, so we're trying to understand whether that impacts consumers or what they think that date means," says Broad Leib. "It's arbitrarily very short, and it's not just a waste of people's food but a waste of money."

Some states require expiration dates on milk and other foods, while others have no such rules. But milk rules are among the worst.

Broad Leib, in a recent L.A. Times op-ed promoting the documentary, notes that milk is the food that's prone to "the most inconsistent labeling, state to state."

The Montana rules are so arbitrary that Core-Mark, a large Washington State dairy that sells milk in Montana, attempted to sue the state to overturn the rules in 2008. Not surprisingly, the Montana Milk Producers Association and Dean Foods, which owns the largest dairy in the state, both intervened in the lawsuit in support of the Montana's position. They prevailed. In 2013, a Montana state court refused to hear the lawsuit.

Then, last year, Core-Mark sued Montana in federal court to overturn the rules. Absent a victory by Core-Mark, how can the problem of Montana's law (and other similarly bad expiration laws) be solved?

"We need a federal law that standardizes expiration dates across products," the documentary concludes.

"Standardizing labels allows for the government to actually educate consumers so that they can make better decisions–being safer and wasting less food and money," Broad Leib tells me. "But for this to work, the same standard language needs to be used across all food products—across foods and across the country."

But would a uniform federal law really be any better?

After all, the problem in Montana is simple; the state has a bad law. Repealing the law (or a successful court challenge) would fix that problem. Doing the same in other states would also do the trick. It may be more cumbersome to change many laws—though a series of federal court decisions could facilitate change—but there's an upside to change at the state level, even beyond the constitutional issues I think a federal standard raises.

As I describe in my forthcoming book, Biting the Hands that Feed Us, laws like Montana's that promote food waste—and they are legion—should be jettisoned whenever possible. Replacing those laws with new federal ones that will undoubtedly have their own flaws and unintended consequences and will be shaped by the industries subject to those rules—such as the powerful dairy industry—won't make consumers any better off, and may be a net loss for consumers.

Despite this, the push for a federal expiration-date law has gained some momentum. Sen. Richard Blumenthal (D-Conn.) announced earlier this month that he'll sponsor a bill to create federal food dating standards.

But this is the same Blumenthal who, in 2009, while serving as Connecticut's state attorney general—you guessed it—sued CVS for selling milk and other foods that were past their expiration date. (His crusading press release, full of warnings about the perils of consuming foods past their expiration date—foods he deems "rotten" and "tainted"—is worth a read.)

While a federal law is not the solution to Montana's law, it's worth noting that there's some evidence that Montana's sell-by date is bad for the state's own dairy farmers. After all, as a 2014 Montana legislative report notes, consumers wrongly believe that the safety of their milk hinges on using up that food by its sell-by date.

If "consumers think the stamped 'sell-by' date is a use-by date [and] these consumers dump the carton of milk into the sink on the 'sell-by' date," the report states, "they most likely are tossing milk that is still good for at least another week."

This mistaken belief could reap benefits for Montana dairy farmers. Maybe consumers buy more milk as a result, or make more frequent purchases of milk in (comparatively higher-priced) smaller containers.

But it's just as likely that the law is shaking consumer confidence in Montana milk, particularly among Montanans who travel out of state and who see that milk sold in every other state in America has a longer shelf life than does their in-state milk.

Expired is an excellent short film that exposes many problems with mandatory state food expiration laws. Absent a compelling basis, laws like that in Montana that promote food waste should be repealed. Replacing them with uniform federal laws, though, may only exacerbate the problem.

For more information about Expired, visit http://notreallyexpired.com, and watch below:

EXPIRED? Food Waste in America from Racing Horse Productions on Vimeo.