California Exempts Supplements From Food Date Labeling, but Expiration Dates Still Need Proof

California recently amended its standardized food date labeling law to exempt dietary supplements, sparing supplement makers from swapping expiration dates for “best by” dates. The amendment, AB 2779, excludes products that meet the definition of a dietary supplement.

Nutritional Outlook Associate Editor Erin McEvoy spoke with Todd Harrison, co-chair of the FDA practice group at Venable LLP, who published a client alert on the amendment in early October. Harrison calls the exemption the right decision, but there are still several considerations for brand owners. Expiration dates still need stability testing or a reasonable scientific rationale, he says, and brand owners remain responsible for label claims and their contract manufacturers’ compliance with current good manufacturing practices, as demand letters alleging products fail label claim become more common.

He also explains where supplements and conventional foods can blur, including functional beverages and meal replacements, and why he believes a growing patchwork of state laws should push the industry to ask Congress for national uniformity.

Erin McEvoy: You published a client alert in October explaining the effects of an amendment, AB 2779, to California’s standardized food date labeling law. The amendment exempts dietary supplements, and overall, what would you say is the significance of this action for the supplement industry?

Todd Harrison: Well, the significance of this action is that the best-by date that was being required of food never made sense for dietary supplements. Dietary supplements have expiration dates, and in fact, under that bill, if they were to require supplements go away from expiry dates, it could actually be misleading to the consumers because consumers may think that best-by means they could use it 6 months from now, it just says best-by by then. But the supplement could be significantly less potent 6 months later.

I think it was a very good move by the legislature. They should have done it in the first place, but I don’t think they ever intended it to be impacting dietary supplements until people pointed out that supplements are technically foods, so it could impact them. Why it took 4 months to get around to it, I don’t know. But it was the right decision.

McEvoy: The amendment excludes the products that meet the definition of a dietary supplement. How clear is that boundary for products that sit between foods and supplements, like functional beverages, gummies, and powders, and where could companies still be uncertain about which line they fall on?

Harrison: There’s a clear line. If your product is a dietary supplement, says dietary supplement on the label, and it has a Supplement Facts box, it’s a dietary supplement. Gummy products that are gummies and they are marketed as dietary supplements, those are clearly dietary supplements. Potentially, functional beverages that are saying that they are dietary supplements but market themselves as a refreshing beverage, well, now you get this idea: Is it really a dietary supplement, or is it really a conventional food? So there could be that gray area there because FDA would say if you look like a duck, you walk like a duck, you quack like a duck, you’re a duck, so you can’t market a conventional food and say it’s a dietary supplement. You will have to be careful with dietary supplements that are beverages but are acting like they are a conventional food.

But those are going to be the rare occasion because most of the functional beverages have Nutrition Facts boxes on them, and so there’s not going to be too much confusion there. Most creatine powders, most protein powders, and most powder products are generally marketed as dietary supplements, but there are a few that are marketed as food products. And again, the differentiation is: what do you have on the PDP? What are you saying on the back of the product? Do you have a Supplement Facts box, or do you have a Nutrition Facts box? Again, there’s maybe a gray area, but the minute you call a supplement a meal replacement, it is no longer a dietary supplement. It is a food. So if you look at a meal replacement and you slap a Supplement Facts box on it, well, FDA would treat that as a food, not as a supplement. I can see an enterprising plaintiff attorney arguing, “They may say they’re a dietary supplement, but they’re really a food, and therefore they have to have the best-by date.” But this really comes down to companies making sure they have product discipline, not trying to have their cake and eat it too. But for the vast majority of products, like the gummy products, things like that, they should not have an issue.

McEvoy: With supplements now outside AB 660’s terminology rules, what does a defensible, well-supported date label look like, and what mistakes have you seen companies make?

Harrison: Well, the biggest mistake companies make is that they don’t do the appropriate stability testing The minute you put an expiry date on the label, and by the way, if you want to market your products in brick-and-mortar stores or on Amazon, they require expiration date. And what is the basis of that date? You can’t just say, “I have a bunch of certificates of analysis (COAs) from a supplier, and they said their ingredient’s good for 2 years or 3 years, and I just put these ingredients together, and that’s my stability data.” That’s not going to be sufficient. You have to have a reasonable basis for those expiration dates. You need to do appropriate stability testing, or if you can’t because it’s a complex formula, difficult to test, you have to have a reasonable scientific rationale for it.

There’s some places where the industry fails to do it. Some people say, “I just want a 2-year expiration date and I’m fine.” Especially with some forms of supplements stability is very difficult, and if you misstate your stability and somebody tests it outside of that date and you fail label claim, well now your product is misbranded and FDA could ask you to recall the product and you could be subject to consumer class action lawsuits. Also, understand that when you don’t use expiry date, that means you’re pretty much ensuring that your product at the date that it’s bought is going to meet label claim.

I try to emphasize to my clients: you need to have a reasonable basis that at least through shelf life that your product’s going to meet label claim. And I think the industry is starting to understand that, but it’s amazing that a lot of people don’t understand that, and they just think, “2 years, that’s standard practice.” No, 2 years is not a standard practice. Two years needs to be based on data or a reasonable scientific basis. Just simply saying that, “the contract manufacturer told me it was 2 years,” that’s not a basis.

McEvoy: It does feel like substantiating label claims has been coming under a lot more scrutiny in the industry lately.

Harrison: It has, and we see more and more demand letters saying, “We tested your product, and you don’t meet label claim.” This is very true because certain matrices in particular are not necessarily the most stable matrices to put ingredients in, and if it means shorting your shelf life and not producing as big of runs, that’s what it means, and that’s what you do. But that’s what you do for transparency purposes. You don’t just say, “well, my contract manufacturer says okay.”

What I have found throughout the last 30 years of practice is how many brand owners do not realize ultimately they’re responsible for whatever their contract manufacturer tells them. They think that’s the contract manufacturer’s problem. No, it’s not. It’s the brand owner’s problem. It’s the brand owner’s name on the label. Therefore, the brand owner must do their due diligence and make sure that the products meet label claim. The brand owner has to make sure the product is not misbranded, to make sure the contract manufacturer is following CGMPs. That’s the brand owner’s job and it cannot be contracted away.

McEvoy: Should supplement companies expect similar exemptions in other states, or even federally, and what should they ask of any future legislation to avoid another round of uncertainty like this one?

Harrison: Right now, all we’re seeing is more states introducing more legislation. As you know, California just passed legislation on weight-loss products and muscle-building products and ingredients and so forth. I think that this is going to continue to be a trend in certain states.

I think that it’s important to educate legislators, but I also think it’s important that at some point Congress step up and say, we need national uniformity in our laws. We can’t have everything state by state because national industries need uniformity. It’s impossible to have 50 different state rules for labeling. It’s impossible to comply with. At some point the industry has to get together and say to Congress, we need uniformity. With the new law in California, it’s one thing for California to say to retailers to restrict sales in store, it’s another thing to say it must say on your label that these are only sold to consumers 18 and over. Two different issues. You can separate those out, but we’re seeing more and more of this happen at the state level, and we need the federal government to step in and say we can’t have this. These are national industries. National industries need uniform laws.

Note: This transcript is from a video interview conducted in October 2026. The transcript has been lightly edited for clarity.