(B) Open Date Labeling.

1. (1) Open Dating of Perishable and Semi-perishable Food Products.

   1. (a) No person shall sell, offer for sale, or have in his or her possession with intent to sell any prepackaged perishable or semi-perishable food products unless it is identified with an open date determined by the manufacturer, processor, packer, repacker, retailer, or other person who packaged such food products, and which is displayed in the form specified in 105 CMR 500.006(B)(5).
   2. (b) No person receiving a perishable or semi-perishable product in bulk intended for use as a repacked product or as a component of a larger food item shall offer such item for prepackaged retail self-service sale without placing an open date on such product, and the date shall be no later than the date specified on the bulk container from which it was obtained.
2. (2) Open Dating of Frozen and Long Shelf Life Food Products. A manufacturer, processor, packer, repacker, retailer, or other person who prepackages frozen or long shelf life food products may mark the individual retail packages of such products with an open date, and shall be subject to the requirements as to form outlined in 105 CMR 500.006(B)(5).
3. (3) Once an open date has been placed on a product, the date may not be altered.

4. (4) Sale of Past Date Food Products. No person shall offer for sale in Massachusetts any food product after the open date unless:

   1. (a) It is safe for human consumption and its sensory and physical qualities have not significantly diminished;
   2. (b) It is segregated from food products that are not "past date"; and
   3. (c) It is clearly and conspicuously marked either on the package or through the use of shelf markers or placards, as being offered for sale after the recommended last date of sale or use.

5. (5) Placement of the Date.

   1. (a) The term "sell by," "best by," "use by," or similar words shall be either immediately adjacent to, above, or below the designated date.
   2. (b) The date shall consist of the common abbreviation for the calendar month and numerals for the day and year, e.g., Feb. 10, 2020; or numerals for the month, day and year, e.g., 2/10/20, except that perishable food products need not have the year identification included in the date, and frozen and long shelf life foods need not have the day identification included in the date.
   3. (c) The date shall be accompanied by disclosure of recommended product storage conditions, if such conditions significantly affect the validity of the date.
   4. (d) The date and any recommended storage conditions shall be printed, stamped, embossed, perforated, or otherwise shown on the retail package. Such label on such package, or a tag attached to such package, shall be affixed in a manner that is easily readable and separate from other information, graphics, or lettering so as to be clearly visible to a prospective purchaser.
   5. (e) An individual prepackaged food product which is not labeled in accordance with 105 CMR 500.006(B)(5) shall be deemed misbranded pursuant to M.G.L. c. 94, § 187.

6. (6) Product Rotation, Storage and Handling Information. Any person who prepackages a food product for sale in Massachusetts shall disclose to the retailer of such product:

   1. (a) Whether or not such product is open dated;
   2. (b) Any required or recommended storage and handling conditions; and
   3. (c) Information to facilitate the sequential rotation of product inventory.

Information shall be conveyed in a readily understandable form. (7) Factors for Shelf Life Determination.

1. (a) A person who is responsible for placing an open date on a food product shall estimate the shelf life of the product, using a scientifically valid method, taking into consideration the quality, characteristics, formulation, processing impact, packaging or container and other protective wrapping or coating, and typical transportation, storage, and display conditions of the food product.
2. (b) Considerations shall also include those of the retail store and consumer. For purposes of estimating shelf life, home storage conditions shall be considered similar to the usual retail store, except that refrigerated food may be calculated using a home temperature storage standard of 45°F (7.2°C).
3. (c) Such factors shall be measured or otherwise determined utilizing testing and sampling procedures customarily utilized by the food industry for such purposes.

1. (8) Required Records.

   1. (a) A person responsible for estimating the shelf life of a food product shall keep a record of the method used for the determination of such shelf life and the corresponding open date. A record revision is necessary whenever a factor affecting such date determination is altered. Such record shall be retained for not less than six months after the most recent open date and shall be made available to the Department upon written request.
   2. (b) If, after conducting an investigation, the Department determines that such records do not support the date selected, it may direct the responsible person to change the date in accordance with its findings.

2. (9) Exemptions.

   1. (a) 105 CMR 500.006(B)(1) through (8) does not apply to:

      1. 1. Fresh meat, fresh poultry, fresh fish, fresh fruits, or fresh vegetables offered for sale unpackaged or in a container permitting sensory examination;
      2. 2. Salt;
      3. 3. Crystallized refined sugar;
      4. 4. Individually packaged food products which are prepackaged as components of a larger food item, if the larger food item is identified with a date no later than the corresponding date for any such components;
      5. 5. Food products prepackaged for retail sale with a net weight of less than 1½ ounces; or
      6. 6. Food products manufactured, processed, or stored for sale outside Massachusetts.
   2. (b) Any person may apply to the Department for an exemption from the provisions of 105 CMR 500.006(B), which exemption may be granted if the product for which the exemption is sought is open dated in accordance with the regulations of another agency, and compliance with the regulations of the other agency will result in the disclosure of substantially the same information as is required by 105 CMR 500.006(B).