Grocery stores stock hundreds of products labeled with “best by” or “sell by” dates:chronic understaffing and neglect will cause many of these products to remain on the shelves past their dates.Infant formula is one of the few products that the FDA requires to have a “use by” date.See the USDA for useful information about food product dating.
Infant formula manufacturers are required by law to include a “use by” date on all products.In so doing, the manufacturer is pledging that if consumed prior to that date the formula will provide a baby with the nutrients necessary to ensure healthy development.However, after that date the stability of those nutrients can no longer be guaranteed.The US Food and Drug Administration (FDA), and infant formula manufacturers (such as Nestle) advise families not to feed outdated formula to their babies.The U.S. Department of Agriculture advises that additionally, the texture of the formula can become degraded and difficult to pass through a bottle nipple.
This government regulation about infant formula stems from a concern about the welfare of babies in this country: if infants do not receive the proper nutrition, they may develop potentially serious developmental problems.Formulas consumed after the “use by” date may not provide the nutritional levels required by the FDA. The FDA is so concerned about the sale of expired infant formula that in 1999 it issued a notice to retailers alerting them that out of date formula could be considered adulterated under the Food, Drug and Cosmetic Act and therefore subject to seizure by the FDA.The notice goes on to urge retailers to remove out of date formulas from their shelves and to “critically evaluate training and management practices to ensure that store managers and employees take steps to prevent the sale of outdated formula.”According to the U.S. Centers for Disease Control and Prevention, Kentucky has a particularly high rate of mothers who rely on formula to meet their baby’s needs (“State’s Moms Behind U.S. in Breast-feeding,” August 5, 2008. Laura Ungar and Michelle Day. Courier-Journal, p. 1A).
Public officials and the media around the United States have undertaken similar investigations of expired products. The New York Attorney General reached a settlement with Rite Aid over the sale of expired products, and is pursuing legal actions against CVS for the same, noting in a press release:
“Infants and children are particularly susceptible to the health risks from using expired products, especially expired infant formula, since it many not contain the nutrient levels for proper infant development.”
The New Jersey Attorney General sued Rite Aid for violation of a consent decree stemming from the sale of expired products including infant formula, and has also filed suit against Drug Fair, Target and Wal-Mart for selling expired over-the-counter drugs and infant formula, in addition to overcharging customers (“Attorney General Sues 3 Store Chains,” September 5, 2008. Michael L. Diamond. Asbury Park Press).A TV station in Seattle also reported on the prevalence of out of date infant formula on the shelves of local retailers.
What we found
As part of an ongoing investigation into the practices of Remke Markets Inc. we noticed that they have had a series of expired products, including infant formula, over the past three years (see this table for a list of all expired products between 1/1/2006-9/25/2008).On November 5, 2008, shoppers went to all eight Remke Markets stores in Northern Kentucky and Cincinnati.Shoppers bought between 32-63 cans of formula in 5 of 8 stores, for a total of 235 cans.Shoppers returned their receipts, a signed and dated inventory list, and all of the product to a data recorder who then labeled and boxed all of the product after entering the data into a spreadsheet.
Detailed Table by Store, with Use By Date Counts
Store Name
Use By Date
Total Cans
Remke – 560 Clock Tower Way, Crescent Springs
08/01/08
1
09/01/08
13
09/04/08
6
10/01/08
8
11/01/08
4
Remke - Crescent Springs Total
32
Remke – 4116 Webster Ave, Deer Park, OH
11/01/07
3
06/21/08
1
07/01/08
1
07/18/08
2
08/01/08
4
10/01/08
22
10/09/08
12
Remke - Deer Park Total
45
Remke – 6920 Burlington Pike, Florence
07/01/08
27
10/01/08
9
11/01/08
27
Remke - Florence/Turfway Total
63
Remke – 2501 Dixie Highway,Ft.Mitchell
08/23/08
12
10/01/08
5
10/09/08
12
11/01/08
20
Remke - Ft. Mitchell Total
49
Remke – 1952 North Bend, Hebron
02/29/08
2
06/22/08
1
07/19/08
4
07/22/08
6
08/26/08
4
09/01/08
1
09/12/08
2
10/01/08
10
11/01/08
16
Remke - Hebron Total
46
Grand Total
235
Breakdown of expiration dates
33.2% of all cans had expired on October 1, 2008, or October 9, 2008
28.5% of all cans had expired on November 1, 2008
The remainder of cans are clustered mostly from June – September, 2008, with 11.9% expiring July 1, 2008 (all but one found at Florence store).
Use By Date
# of cans
11/01/07
3
02/29/08
2
06/21/08
1
06/22/08
1
07/01/08
28
07/18/08
2
07/19/08
4
07/22/08
6
08/01/08
5
08/23/08
12
08/26/08
4
09/01/08
14
09/04/08
6
09/12/08
2
10/01/08
54
10/09/08
24
11/01/08
67
Grand Total
235
Average days expired by store
Deer Park had the oldest inventory of expired infant formula, with an average time past the Use By date of over 2 months.
Store
Average days expired of all cans
Crescent Springs
50.3
Deer Park
68.3
Florence
61.1
Ft.Mitchell
29.9
Hebron
56.1
Grand Total
53.5
Number of UPCs found
The type of formula varied, with 18 different UPCs represented.
The most of any one product was 45 cans of Similac, with iron (13 ounce, liquid) followed closely by 44 cans of Similac Isomil soy, with iron (13 ounce, liquid).
What we did
We have no documented reason to believe that Remke Markets has any more or less expired infant formula than other local retailers.Thus, we sent letters to officials in Kentucky and Ohio asking the appropriate regulators to take measures to address this issue. Click here to see the content of the letter to the Northern Kentucky Independent Health District, and here for the content of the letter to the Hamilton County Department of Public Health.
