Consumer Federation of California

When Dale Proctor’s nine month old son Kai became violently ill this year after eating baby food purchased at a Raley’s Supermarket in Woodland, he and his wife Connie desperately searched for an explanation. ‘I went to the cupboard to check the baby food jars ‘ to my surprise the jar of baby food was past the use by date ‘ seven months past the date. I cannot explain how upset we were.’

Dale Proctor testified to the State Senate Health Committee ‘I thought that maybe this one baby jar was just a mistake so I went back to the store to the baby food section. I picked up one of the baby food jars and was surprised to find that one expired too. Still, I thought maybe it was just something a store clerk overlooked. So I picked up another jar.  Expired six months. And I picked up another. Expired. Another. Expired. I kept picking and picking until I found eight jars of expired baby food products. This was no simple careless mistake.’

Federal regulations require expiration dates on over-the-counter medication, baby food and infant formula product labels as the manufacturer’s guarantee of the product’s safety and effectiveness.  Remarkably, there is no law prohibiting the sale of expired baby food or medications.

Assembly Bill 688 by Dr. Richard Pan would ban the retail selling of these products. The bill is on Governor Jerry Brown’s desk, awaiting his signature or veto.

A statewide poll conducted in September found that 74% of all California likely voters supported AB 688. Republicans supported the measure by a slightly higher percentage than Democrats.

Federal requirements for expiration dates serve a public health purpose. Formula that has passed its "use by" health date may lose its nutritional value or clog the nipple of a baby bottle. Health effects may include inadequate consumption of ingredients that promote an infant’s brain and eye development. Expired medications may lose their potency.

AB 688 is modeled on similar legislation vetoed in 2009 by former Governor Arnold Schwarzenegger. At that time, the Consumer Federation of California provided evidence of the pervasive industry practice, when we displayed expired products purchased at two dozen Rite Aid pharmacy stores in Los Angeles and the Bay Area.

Last year, San Diego’s ABC TV Channel 10 News reported on quantities of expired baby food or infant formula its reporters found on the shelves of several Toys ‘R’ Us stores.

As Attorney General, Jerry Brown sued the CVS pharmacy chain in 2008 after Department of Justice investigators found baby formula, toddler food, and over-the-counter medications offered for sale six months or longer past their expiration date on the shelves of 26 CVS stores in Los Angeles, Orange, and San Diego counties. The company settled the case, paid fines and agreed to rigorously police its sales practices. Similar undercover shopping operation by state agencies led to lawsuits against CVS and Rite Aid chains in New York and against Walmart and Target Stores in New Jersey.

To their credit, some retailers voluntarily provide a refund or replacement to a consumer who returns a product purchased after its expiration date. But that’s not enough to curb a practice that we just confirmed remains all too common.

Two weeks ago, we went shopping and purchased expired formula baby food and medications at Northern California stores belonging to some of the nation’s biggest supermarket, pharmacy and discount department store chains.

When embarrassing expos