Expiry Dates vs Best Before Dates: Australian Legal Guide For Businesses

If you sell, manufacture or distribute food in Australia, getting your date labels right isn’t just a nice-to-have - it’s a legal requirement and a big part of keeping your customers safe.

But “expiry,” “use by,” “best before,” “baked on,” and “display until” can be confusing in practice. What do they actually mean? Can you sell a product after the date? And how do the Australian Consumer Law (ACL) and food safety standards fit together?

In this guide, we break down what each label means, where the legal risks sit, and how your business can stay compliant without slowing down operations. We’ll also share practical tips and the key contracts and policies that help you manage risk day-to-day.

What Do “Use By” And “Best Before” Mean In Australia?

In Australia, date marking for most packaged foods is set by the Food Standards Code (developed by Food Standards Australia New Zealand). While the Code is technical, the core ideas are simple when you translate them into plain English.

“Use By” Date: Safety Cut-Off

A “Use By” date is about food safety. After this date, the food may no longer be safe to eat due to microbiological growth or other hazards. As a rule:

• Food must not be sold after its Use By date (unless an exemption applies under the Code).
• You also shouldn’t serve or give it away for consumption after this date.
• Storage directions on the label (for example, “keep refrigerated below 5°C”) are part of the safety messaging - if those directions aren’t followed, the product may be unsafe even before the date.

“Best Before” Date: Quality Window

A “Best Before” date is about quality, not safety. It tells customers the period during which the food is expected to be at its best. After this date, the product might lose freshness, texture or flavour, but it may still be safe to eat if stored correctly. In most states and territories, it is generally lawful to sell food after its Best Before date so long as it’s still fit for human consumption and correctly labelled.

Other Date Marks You’ll See

• “Baked On” / “Baked For”: Often used in the bread category, including same-day bakery items. The Code has specific date-marking options for bread with a short shelf life.
• “Display Until”: This is a stock management aid for retailers. It doesn’t override Use By or Best Before, and it’s not a consumer-facing indicator of safety or quality.

Important: Consumers often confuse these terms. Clear labelling and staff training reduce complaints and ensure you don’t unintentionally mislead customers under the ACL.

Can You Sell Food After The Date?

This is one of the most common questions we get from food businesses and online grocers. The short answer depends on the type of date mark.

Selling After “Use By” - No

Food must not be sold after its Use By date. Doing so raises both food safety and consumer law risks. You could face action under state and territory food laws, and you may also breach the ACL by engaging in conduct that misleads consumers about the safety of your products. The risk is high and the rule is strict - build your processes around never selling past Use By.

Selling After “Best Before” - Sometimes

Generally, you can sell food after its Best Before date, but only if:

• The product is still safe to eat and has been stored as instructed.
• You don’t make representations that could mislead customers about freshness or quality.
• Your marketing and ticketing are accurate (for example, “clearance” or “short-dated” is fine; implying the item is new-season fresh when it’s not could be risky).

If you choose to sell products past Best Before, add a clear process to check quality and record your checks. Be consistent and train staff - consistency is your best defence if a complaint arises.

What Laws Apply To Date Marking And Labelling?

Two legal pillars apply to food date labels in Australia: food standards (safety and composition) and the ACL (honest marketing and consumer guarantees). Both matter, and they overlap in practice.

Food Standards Code: Date Marking And Storage Directions

The Food Standards Code sets when you must use a Use By vs Best Before, how to display date marks, and when to include storage instructions that keep the product safe within the stated timeframe. If you manufacture, import, or private-label products, make sure your label artwork aligns with the Code’s requirements for your product category.

Checklist for your label process:

• Confirm if your product needs a Use By (safety risk after a period) or Best Before (quality guidance only).
• Include required storage instructions to preserve the shelf life claimed.
• Ensure the date is legible, indelible and placed where consumers can easily find it.
• Have a batch coding and traceability system that matches the date code used.

Australian Consumer Law: Misleading Or Deceptive Conduct

The ACL prohibits conduct that is misleading or deceptive, or likely to mislead or deceive. That includes labelling, shelf talkers, product pages and any verbal statements from staff. In the context of date marking, common risk areas are:

• Implying the product is fresh or “just made” when the date marking indicates otherwise.
• Obscuring or printing unreadable date marks.
• Repackaging or relabelling in a way that confuses the original date information.

If there’s any doubt, assume the regulator will look to the overall impression on an ordinary consumer. Clear, honest communication is the safest approach. For a deeper dive into the concept, it helps to understand the elements of misleading or deceptive conduct and how they apply to your marketing.

False Or Misleading Representations

Specific prohibitions in the ACL target false or misleading representations about goods. If your display or advertising suggests a level of quality, age, freshness or performance that isn’t accurate given the date mark, you may breach these rules. Align your promotions, pricing and ticketing with the product’s real condition to avoid issues tied to Section 29 of the ACL.

Advertised Pricing And Promotions

Short-dated clearance events are common - just make sure the price and claims stack up. Price displays, strike-throughs and “was/now” comparisons must be truthful and supported by evidence. If you’re running promotions around dated stock, review your signage and EDM copy against the principles in Australia’s advertised price laws.

Common Compliance Risks (And How To Avoid Them)

From our experience working with retailers, manufacturers and online food businesses, most problems come down to unclear processes and inconsistent training. The good news: small changes often make a big difference.

1) “We Can’t Read The Date”

Risk: Date stamps that are too small, rubbed off, printed on seams, or obscured by stickers.

How to avoid it: Build a label check into your artwork process and factory acceptance testing. Spot check on the shelf as well - real-world lighting and packaging folds can make a legible studio mockup impossible to read in store.

2) Repackaging Without Reapplying Critical Information

Risk: Bulk products broken down into smaller packs lose the original date and storage instructions.

How to avoid it: Repackaging procedures should include transferring the correct date mark, storage directions and batch code. If you co-pack or use third parties, cover this in your Supply Agreement so responsibilities are clear and auditable.

3) Staff Confuse “Best Before” With “Use By”

Risk: Team members remove perfectly saleable stock that’s past Best Before (unnecessary waste), or worse, leave Use By items out (safety risk).

How to avoid it: Keep a simple, visual SOP with examples, and include date-marking basics in onboarding. Use different coloured shelf tags or stickers to distinguish short-dated Best Before from Use By in the backroom.

4) Inconsistent Messaging Online

Risk: Your website or marketplace listing shows lifestyle images and claims like “just baked” while the product delivered is near its Best Before date.

How to avoid it: Align product copy with your stock profile. If you regularly sell short-dated lines online, set expectations in your Terms of Sale and product descriptions. Avoid language that implies new season or freshly made unless it’s true for the items shipped.

5) Clearance Signage That Over-Promises

Risk: Clearance displays promising “fresh” or “new batch” when the real reason for discounting is short dating.

How to avoid it: Stick to neutral statements such as “short-dated clearance” and ensure you don’t overstate freshness. This reduces the risk of contravening the ACL’s general prohibitions or the false representation rules discussed above.

6) Supplier Variability

Risk: Incoming stock arrives with very little shelf life remaining, leaving you with a tiny window to sell lawfully.

How to avoid it: Bake a minimum remaining shelf-life requirement into your Distribution Agreement or Supply Agreement and make short dating a trigger for returns or credits. Consistent commercial terms drive better behaviour upstream.

7) Returns And Customer Guarantees

Risk: Handling returns of short-dated items badly can escalate a minor issue into a regulator complaint.

How to avoid it: Have a clear process that respects the consumer guarantees and, where appropriate, provide a remedy quickly. If you offer a voluntary warranty, make sure it’s compliant and properly documented via a Warranties Against Defects Policy.

Operational Best Practice: A Practical Date-Marking Checklist

Here’s a simple, repeatable workflow you can adapt for your team:

1. Label Design: Confirm Use By vs Best Before and storage directions for each SKU. Sense-check legibility and placement.
2. Pre-Production Sign-Off: Approve print proofs, including date and batch coding samples. Document who signed off and when.
3. Inbound Checks: On receipt, record production date, Use By/Best Before, and remaining shelf life. Escalate short-dated deliveries under your supply terms.
4. Stock Rotation: Use FIFO and highlight Use By items in your back-of-house system. Consider a daily “red flag” report for near-due stock.
5. Repackaging/Decanting: Apply correct date and storage instructions to any new pack. Keep traceability between bulk and split packs.
6. Retail Display & Online Listings: Ensure shelf talkers and product copy don’t contradict the label or overall consumer impression.
7. Clearance Process: Define when Best Before stock can be discounted and how it must be presented.
8. Training & Audits: Train new starters on date marks, and run spot audits in-store and online at least monthly.
9. Incident Response: If short-dated or Use By issues slip through, document what happened and apply a corrective action (CAPA) so it doesn’t repeat.

Online Businesses: Terms, Disclosures And Customer Experience

If you sell food online or via marketplaces, your product pages, cart and order confirmations are all part of the “overall impression” under the ACL. Make sure your website clearly explains delivery times, how short-dated items are handled, and what customers can expect on arrival.

For most eCommerce food sellers, it’s smart to publish Website Terms and a clear set of Terms of Sale that address order acceptance, substitutions, perishable handling and remedies. Pair those with compliant Website Terms & Conditions so your rules are accessible and enforceable.

What Legal Documents Should Your Business Have?

Strong contracts and clear policies turn your date-marking obligations into everyday routines your team and suppliers can follow. Consider these essentials:

• Terms of Sale: Sets out how you sell to customers (including perishable handling, delivery windows, substitutions and remedies). Useful for both online and wholesale sales, and available as dedicated Terms of Sale.
• Website Terms & Conditions: Explains how your website can be used, IP ownership, and liability limits for online interactions, which you can formalise through Website Terms & Conditions.
• Warranties Against Defects Policy: If you voluntarily offer replacements or refunds beyond ACL guarantees, this policy ensures the wording and disclosures meet the ACL’s prescriptive rules, via a compliant Warranties Against Defects Policy.
• Supply Agreement: Locks in minimum remaining shelf life on delivery, packaging and labelling responsibilities, and chargebacks for short-dated stock. See our Supply Agreement service.
• Distribution Agreement: If distributors handle your products, set standards for storage, rotation, recalls and short-dated clearance in a tailored Distribution Agreement.
• Internal SOPs And QA Addendums: While not “legal documents” per se, tying your QA checklists to your contracts (for example, annexing date-marking SOPs to supplier terms) keeps everyone aligned and accountable.

It’s also wise to review your marketing workflows against ACL requirements - particularly claims around freshness and shelf life - using the principles covered in false or misleading representations and the broader misleading conduct rules. This doesn’t need to slow you down; a light-touch legal review at template stage often prevents bigger problems later.

How Do Recalls And Short-Dating Interact?

If a product is labelled with an incorrect date or storage instruction, you may need to consider a withdrawal or recall. Your contracts should allocate responsibilities and costs for label errors, and your incident plan should cover:

• How you’ll identify and quarantine affected batches quickly via your coding system.
• Who notifies customers and regulators, and what the message should say.
• What remedy you’ll offer (refund, replacement, or credit) consistent with the ACL guarantees.

Clarity here reduces downtime and reputational damage. It also demonstrates due diligence if regulators make enquiries.

Key Takeaways

• “Use By” is a safety cut-off - don’t sell or serve food after this date; “Best Before” is a quality guide and, if the product is still safe, it can usually be sold after the date with honest messaging.
• Food Standards set the technical date-marking rules; the ACL governs how you present, advertise and talk about dated products to customers.
• Common risk areas include illegible date stamps, repackaging without transferring dates, staff confusion between date types, and marketing that over-promises freshness.
• Build simple operational routines: label checks, FIFO stock rotation, inbound shelf-life requirements, and audit trails for any short-dated sales.
• Use strong contracts and clear policies - such as Terms of Sale, Website Terms & Conditions, a compliant Warranties Against Defects Policy, and a robust Supply Agreement - to align your team and suppliers.
• Keep your pricing, promotions and claims consistent with the real condition of the product to avoid issues under misleading conduct and false representation rules.

If you’d like a consultation about date-marking compliance or the right contracts for your food business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.