Background In creating the military justice system, Congress established three types of military courts, called the summary, special, and general courts-martial, to adjudicate UCMJ violations. Each of these types of military courts respectively is intended to deal with progressively more serious offenses, and each court-martial type may adjudicate more severe maximum punishments as prescribed under the UCMJ. In addition, an accused servicemember can receive nonjudicial punishment under Article 15 of the UCMJ, by which a commander can punish a servicemember without going through the court-martial process. There are several steps in the discipline of a servicemember who allegedly commits a crime under the UCMJ, which are summarized in figure 1 below. The military justice process begins once an offense is alleged and an initial report is made, typically to law enforcement, an investigative entity, or the suspect’s chain of command. The commanding officer, law enforcement, or a military criminal investigative organization (MCIO) will conduct an inquiry or investigation into the accusation and gather all reasonably available evidence. Investigations are recorded in MCIO databases when a servicemember is the subject of a criminal allegation; for the purposes of our report, we say the servicemember had a “recorded investigation” to describe these cases. Following an investigation, the first step toward initiation of a court-martial is when the accused is presented with a list of charges signed by the accuser under oath, which is called preferral of charges. After charges are preferred, the charges are forwarded to an officer with sufficient legal authority to convene a court-martial, also known as the “convening authority.” The convening authority in receipt of preferred charges may, among other actions, refer the case to its own court or forward the case to a superior commander for disposition. Once referred to a general or special court- martial, an accused servicemember may be tried by a military judge alone or by a military judge with a military jury. In summary courts-martial, a single commissioned officer who is not a military judge adjudicates minor offenses and a sentence. Convictions at the general and special court- martial level are subject to a post-trial process and may be appealed to higher courts in cases where the sentence reaches a certain threshold. The military justice system, like the civilian criminal justice system, provides avenues for accused servicemembers to raise allegations of discrimination, improprieties in investigations, improprieties in disposition, and improprieties in the selection of the military jury at the court-martial proceeding, before a judge and on appellate review. The Military Services Do Not Collect, Maintain, and Report Consistent Information about Race and Ethnicity, Limiting the Ability to Assess Data to Identify Any Disparities The Military Services Do Not Collect and Maintain Consistent Data for Race and Ethnicity The military services do not collect and maintain consistent information regarding race and ethnicity in their investigations, military justice, and personnel databases. Specifically, the number of potential responses for race and ethnicity within the 15 databases across the military services ranges from 5 to 32 options for race and 2 to 25 options for ethnicity, which can complicate cross-service assessments. For example, the Army’s personnel database maintains 6 options for race and 23 options for ethnicity, whereas the Coast Guard’s personnel database maintains 7 options for race and 3 for ethnicity. Table 1 below summarizes how the databases used by the military services vary in how the servicemember’s race is entered and the number of potential race options. Table 2 shows that the military services’ databases also vary in how information about servicemembers’ ethnicity is entered into the databases and the number of potential ethnicity options that are collected. Although the data collected and maintained was not consistent within and across the military services, each of the military services’ databases maintained race and ethnicity data for at least 99 percent of the servicemembers, with the exception of the Coast Guard. The Coast Guard did not track information about race or ethnicity in its military justice database, Law Manager. Coast Guard officials stated that this is because Law Manager was designed to determine the status of court- martial cases, and captures attributes that are needed to generate relevant UCMJ documents, such as court pleadings. Demographic information such as race and ethnicity is not included in these official documents, so this information is not input into Law Manager. Further, four of the databases we reviewed—including both of the Army’s military justice databases, and the Navy and the Marine Corps’ military justice databases—collect information on race and ethnicity in a combined data field as shown in table 2 above, whereas the other databases collect and maintain race and ethnicity information in two separate fields. These inconsistencies limit the military services’ ability to collectively or comparatively assess these demographic data to identify any racial or ethnic disparities in the military justice system within and across the services. Recommendations to collect and maintain race and ethnicity information in investigations and personnel databases. To address these inconsistencies, in our May 2019 report, we made four separate recommendations to each of the military departments and to the Secretary of Homeland Security for the Coast Guard. We recommended that these entities develop the capability to present servicemembers’ race and ethnicity data in their investigations and personnel databases using the same categories of race and ethnicity established in the uniform standards for the military justice databases that were issued in December 2018. As part of these uniform standards, the military services were directed to collect data related to race and ethnicity in their military justice databases, to collect race and ethnicity data in separate data fields, and to standardize the reporting of the data into categories identified in the standards. However, DOD applied these December 2018 standards only to the military justice databases and not to the investigations and personnel databases. DOD officials stated that the investigations and personnel databases do not fall under the charter of the DOD General Counsel, which issued the standards for the military justice databases. DOD and the Department of Homeland Security (DHS) concurred with these four recommendations. As of October 2019, officials from each of the military departments said that they were working to implement the uniform standards for race and ethnicity and the ability to aggregate the data, and they expected to implement these categories in December 2020. Similarly, as of May 2019, the Coast Guard expected to implement such modifications by September 2020. The Military Services Have Not Consistently Reported Data That Provides Visibility about Racial Disparities Although some military services report demographic information about the subjects of military justice actions internally, the military services have not externally reported data that provides visibility into, or would enable an analysis of, the extent of racial or ethnic disparities in the military justice system. Officials from all of the military services told us that they compile internal quarterly or monthly staff judge advocate reports, which include the total number of each type of court-martial handled by their legal offices and of nonjudicial punishments. According to military service officials, the Air Force and the Army reports include demographic information about servicemembers involved in these cases, such as the total number of each type of case broken out by the subject’s race and ethnicity. However, the Navy, Marine Corps, and Coast Guard reports do not include this demographic information, and there was no requirement to do so at the time of our May 2019 report. Regarding external reporting, the UCMJ directs the Court of Appeals for the Armed Forces, the Judge Advocates General, and the Staff Judge Advocate to the Commandant of the Marine Corps to submit annual reports on the military justice system to the Congressional Armed Services Committees, the Secretary of Defense, the secretaries of the military departments, and the Secretary of Homeland Security. These reports are to include information on the number and status of pending cases handled in the preceding fiscal year, among other information. The annual reports include the total number of cases each military service handled for each type of court-martial and for nonjudicial punishments. However, prior to our review, these annual reports did not include demographic information about servicemembers who experienced a military justice action, such as breakdowns by race, because the reporting requirement did not direct the military services to include such information. Recommendation to require military services to include data about race and ethnicity in annual reports about military justice actions. In our May 2019 report, we recommended that the Joint Service Committee on Military Justice, which is responsible for reviewing the UCMJ annually, consider an amendment to the UCMJ’s annual military justice reporting requirements to require the military services to include demographic information, including race and ethnicity, for all types of courts-martial. DOD concurred with this recommendation. According to a memorandum from the Joint Service Committee on Military Justice, in September 2019 the committee proposed an action item as part of its annual review. Specifically, the committee was considering an amendment to the UCMJ’s annual military justice reporting requirements to require the military services to include demographic information, including race and ethnicity, for all types of courts-martial. However, in December 2019, the National Defense Authorization Act for Fiscal Year 2020 included a provision directing the Secretary of Defense to include data on race, ethnicity, and gender in the annual military justice reports. We believe that this statutory change meets the intent of our recommendation. By requiring the military services to report this information, servicemembers and the public will have greater visibility into potential disparities, which will help build confidence that DOD is committed to a military justice system that is fair and just. DOD Has Not Identified When Disparities Should Be Examined Further DOD has not issued guidance that establishes criteria to specify when any data indicating possible racial or ethnic disparities in the investigations, trials, or outcomes of cases in the military justice system should be further reviewed, and to describe what steps should be taken to conduct such a review if it were needed. While equal employment opportunity enforcement is a very different context than the military justice system, other federal agencies have developed such criteria in the equal employment opportunity context that can indicate when disparities should be examined further. For example, the Department of Justice, the Department of Labor, the Equal Employment Opportunity Commission, and the Office of Personnel Management use a “four-fifths” test to determine when differences between subgroups in the selection rates for hiring, promotion, or other employment decisions are significant. These criteria, though inexact, provide an example of the type of criteria that DOD could consider using as a basis for determining when disparities among racial groups in the military justice process could require further review or analysis. Recommendation to issue guidance to establish criteria that determines when racial and ethnic disparities should be reviewed. In our May 2019 report, we recommended that the Secretary of Defense, in collaboration with the Secretaries of the military departments and the Secretary of Homeland Security, issue guidance that establishes criteria to specify when data indicating possible racial, ethnic, or gender disparities in the military justice process should be further reviewed, and that describes the steps that should be taken to conduct such a review. In commenting on a draft of our report, DOD partially concurred with this recommendation, agreeing with the content, but requesting that we modify the recommendation to direct it to more appropriate entities. That change was made before our report was issued. In October 2019, DOD officials said that the department was exploring the feasibility of conducting relevant research to inform implementation of this recommendation. At that time, they estimated that this research might be concluded in March 2021. In December 2019, the National Defense Authorization Act for Fiscal Year 2020 included a provision directing the Secretary of Defense to issue guidance consistent with our recommendation. DOD was directed to commence or carry out these activities by June 2020. We believe that issuing guidance that establishes criteria for determining when data indicating possible racial disparities in the investigations, trials, or outcomes of cases in the military justice system should be further examined, and describes the steps that should be taken to conduct such further examination, would better position DOD and the services to monitor the military justice system to help ensure that it is fair and just, a key principle of the UCMJ. Racial Disparities Exist in Military Justice Investigations, Disciplinary Actions, and Case Outcomes Racial disparities exist in investigations, disciplinary actions, and punishment of servicemembers in the military justice system. Our analysis of available data from fiscal years 2013 through 2017, which controlled for attributes such as race, gender, rank, education, and years of service, found racial disparities were more likely in actions that first brought servicemembers into the military justice system, but we identified fewer statistically significant racial disparities in case outcomes— convictions and punishment severity. Black and Hispanic Servicemembers Were More Likely to Be Subjects of Recorded Investigations and Tried in General and Special Courts-Martial Black and Hispanic servicemembers were more likely than White servicemembers to be the subjects of recorded investigations in all of the military services, and were more likely to be tried in general and special courts-martial in the Army, the Navy, the Marine Corps, and the Air Force, as shown in figure 2 below. We could not analyze Coast Guard cases due to the small number of general and special courts-martial adjudicated in the Coast Guard from fiscal years 2013 through 2017. When separating general and special court-martial cases into those that either were or were not preceded by an investigation recorded in an MCIO database, we found fewer statistically significant racial disparities in most of the military services in general and special courts-martial that were preceded by a recorded investigation. However, as shown in figure 3 below, statistically significant racial disparities were also present in general and special courts-martial that did not follow a recorded investigation in all military services included in this analysis, which would include cases where the investigation was performed by the servicemember’s command. Specifically, as shown in figure 3 above, we found that: General and special courts-martial following a recorded investigation. Black, Hispanic, and servicemembers in the Other race category in the Army, and Hispanic servicemembers in the Marine Corps were more likely than White servicemembers to be tried in general and special courts-martial following a recorded investigation, after controlling for other attributes. We generally found fewer statistically significant differences compared to the results of our analyses for all special and general courts martial. General and special courts-martial without a recorded investigation. Black servicemembers in all of the military services were more likely than White servicemembers to be tried in general and special courts-martial without a recorded investigation after controlling for other attributes. These differences were consistent with the differences we identified for general and special courts-martial overall, as shown in figure 2 above. Hispanic servicemembers in the Army were more likely than White servicemembers to be tried in general and special courts-martial without a recorded investigation, but we found no statistically significant differences in the likelihood of Hispanic servicemembers to be tried in general and special courts-martial without a recorded investigation in the Marine Corps, the Navy, or the Air Force. Black Servicemembers Were More Likely to Be Subject to Summary Courts-Martial and Nonjudicial Punishment in the Air Force and Marine Corps, and the Other Services Lack Data Black servicemembers were more likely than White servicemembers to be tried in summary courts-martial and to be subjects of nonjudicial punishment in the Air Force and the Marine Corps, as shown in figure 4. The Army and the Navy did not maintain complete summary court-martial or nonjudicial punishment data, and the Coast Guard had too few summary courts-martial for us to analyze, and did not maintain complete nonjudicial punishment data. We could not determine whether disparities existed among servicemembers tried in summary courts-martial or subject to nonjudicial punishments in the Army and the Navy because the Army and the Navy did not collect complete summary courts-martial or nonjudicial punishment data in their investigations, military justice, or personnel databases. Specifically, as part of our data reliability checks, we identified the total number of summary courts-martial that the Army and the Navy reported in the Court of Appeals for the Armed Forces annual reports for fiscal years 2013 through 2017, and compared these totals to the number of cases we identified in their military justice databases. While our comparisons are not exact, due to differences in the dates we used to count the number of cases, we found that approximately 60 percent of the Army’s reported summary courts-martial cases and less than 50 percent of the Navy’s reported summary courts-martial cases were included in their military justice databases. The absence of complete summary court-martial data in the military justice databases of the Army and the Navy limits these services’ visibility into any disparities that may exist among servicemembers involved in these types of military justice proceedings. On December 17, 2018, the General Counsel of the Department of Defense issued the uniform standards and criteria required by article 140a of the Military Justice Act of 2016. As part of these uniform standards, the military services were directed to collect certain information about all cases in their military justice databases, which a DOD official said includes summary court- martial cases. The DOD General Counsel directed that military services are to implement the Secretary’s direction no later than December 23, 2020. Similarly, we identified the total number of nonjudicial punishments that the Army, the Navy, and the Coast Guard reported in the Court of Appeals for the Armed Forces annual reports for fiscal years 2013 through 2017, and compared these totals to the number of cases we identified in their military justice and personnel databases. As shown in figure 5 below, we found that 65 percent of the Army’s reported nonjudicial punishments, 8 percent of the Navy’s reported nonjudicial punishments, and 82 percent of the Coast Guard’s reported nonjudicial punishments were recorded in their military justice databases. Recommendation to include benefits and drawbacks of collecting and maintaining complete information for nonjudicial punishment. In our May 2019 report, we made separate recommendations to the Army, the Navy, and the Coast Guard to consider the feasibility, to include the benefits and drawbacks, of collecting and maintaining complete information for all nonjudicial punishment cases in one of the military service’s databases, such as information on the servicemembers’ race, ethnicity, gender, offense, and punishment imposed. DOD and DHS concurred with these recommendations. As of October 2019, Army and Navy officials said that they were developing the capability to collect data on race, ethnicity, gender, offense and punishment imposed for nonjudicial punishments. They expected to complete this action in December 2020. As of May 2019, the Coast Guard stated that it would consider the feasibility of collecting and maintaining complete information for all nonjudicial punishments cases through a military justice and personnel work group. The estimated completion date for this action had not been determined at that time. Few Statistically Significant Racial Disparities Exist in Likelihood of Conviction or Severity of Punishment, but the Coast Guard Does Not Collect and Maintain Complete Data We identified fewer statistically significant racial disparities in case outcomes—convictions and punishment severity. Among the servicemembers convicted in general and special courts-martials, we found no statistically significant differences regarding the likelihood of conviction among racial groups in the Army, the Navy, the Marine Corps, and the Air Force, while controlling for other attributes, as shown in figure 6 below. In the military services that maintained complete punishment data—the Army, the Navy, the Marine Corps, and the Air Force—we found that minority servicemembers were either less likely to receive a more severe punishment in general and special courts-martial compared to White servicemembers, or there were no statistically significant differences in punishments among racial groups. Specifically, as shown in figure 7, Black servicemembers were less likely to receive a more severe punishment in general and special courts-martial compared to White servicemembers in the Navy, but there was no statistically significant difference for Black servicemembers in the Marine Corps, the Army, and the Air Force. Additionally, there were no statistically significant differences for Hispanic servicemembers in the Navy, the Marine Corps, the Army, or the Air Force. We could not determine disparities in case outcomes—convictions and punishment severity—in the Coast Guard’s general and special courts- martial for fiscal years 2013 through 2017 because the Coast Guard did not collect and maintain complete conviction and punishment data in its military justice database. Specifically, 16 percent of all Coast Guard cases were missing conviction and punishment data. When broken down by court-martial type, 20 percent of general court-martial cases, 15 percent of special court-martial cases, and 4 percent of summary court- martial cases were missing conviction and punishment data. Coast Guard officials acknowledged that incomplete conviction and punishment data entry is a consistent problem. They said that data entry had improved recently. On December 17, 2018, the General Counsel of the Department of Defense issued the uniform standards and criteria required by article 140a of the Military Justice Act of 2016. As part of these uniform standards, the military services were directed to collect information about the findings for each offense charged, and the sentence or punishment imposed. The DOD General Counsel directed that the military services are to implement the Secretary’s direction no later than December 23, 2020. DOD and the Military Services Have Conducted Some Assessments of Military Justice Disparities, but Have Not Studied the Causes of Disparities DOD and the military services have taken some steps to study racial disparities in the military justice system over the last several decades, but they have not comprehensively studied the causes of any disparities. We previously reported in 1995 on DOD studies on discrimination and equal opportunity, and found DOD and the military services conducted seven reviews of racial disparities in discipline rates between 1974 and 1993. Since our 1995 report through 2016, DOD and military service assessments of military justice disparities have been limited. Officials in the Office of Diversity, Equity and Inclusion noted DOD has not conducted any department-wide assessments of racial disparities in military justice during this period. The military services’ diversity offices also were not able to identify any service-specific reviews of disparities in military justice. However, DOD has conducted climate surveys to address servicemembers’ perceptions of bias. In addition, the military services have some initiatives to examine and address disparities in military justice. For example, the Air Force routinely analyzes military justice data using a rates-per-thousand analysis to identify whether certain demographic groups are tried by courts-martial or subject to nonjudicial punishments at higher rates than others. These Air Force analyses found that Black servicemembers were more likely than White servicemembers to be subject to courts-martial and nonjudicial punishments from fiscal years 2013 through 2017, which is consistent with what we found. However, the other services do not routinely conduct such analyses. Officials from DOD and the military services acknowledged that they do not know the cause of the racial disparities that have been identified in the military justice system. This is because they have not conducted a comprehensive evaluation to identify potential causes of these disparities and make recommendations about any appropriate corrective actions to remediate the cause(s) of the disparities. Recommendation to identify causes of racial disparities in the military justice system. In our May 2019 report, we recommended that the Secretary of Defense, in collaboration with the Secretaries of the military services and the Secretary of Homeland Security, conduct an evaluation to identify the causes of any disparities in the military justice system, and take steps to address the causes of these disparities as appropriate. DOD partially concurred with this recommendation, agreeing with the content, but requesting that we modify the recommendation to direct it to more appropriate entities. We made that change before the report was issued. In October 2019, DOD officials said that the department was exploring the feasibility of conducting a research project to delve into the differences in military justice data to inform implementation of this recommendation. At that time, they estimated that this research might be concluded in March 2021. In December 2019, the National Defense Authorization Act for Fiscal Year 2020 included a provision directing the Secretary of Defense to conduct an evaluation consistent with our recommendation. DOD was directed to commence or carry out these activities by June 2020. We believe that conducting a comprehensive analysis into the causes of disparities in the military justice system, would better position DOD and the military services to identify actions to address disparities, and thus help ensure that the military justice system is fair and just, a key principle of the UCMJ. In conclusion, our analysis of available data identified racial disparities in all of the military services for servicemembers with recorded investigations, and for four of the military services for trials in special and general courts-martial, but these disparities generally were not present in the convictions or punishments of cases. These findings show an association for disparities at particular stages of the military justice process, but are inconclusive regarding other stages for the period covered by our analysis. However, our findings of racial disparities, taken alone, do not establish whether unlawful discrimination has occurred, as that is a legal determination that would involve other corroborating information along with supporting statistics. The absence of complete nonjudicial punishment data in the Army, the Navy, and the Coast Guard limits their visibility into the vast majority of legal punishments imposed on servicemembers under the UCMJ every year. Without such data, these three military services will remain limited in their ability to assess or identify disparities among populations subject to this type of punishment. Our May 2019 report included several recommendations with specific actions that can be taken to better position DOD and the military services to identify and address disparities, such as (1) developing the capability to present race and ethnicity data from the military services’ personnel and investigations databases using the same categories as the military justice databases; (2) establishing criteria to determine when possible disparities among racial or ethnic groups should be further reviewed, and describing the steps that should be taken in such a review; and, importantly, (3) conducting a comprehensive evaluation of the causes of these disparities and taking steps to address them. To help build confidence that DOD is committed to a military justice system that is fair and just, and for the system of military law to be recognized as fair and just by both members of the armed forces and by the American public, DOD and the military services need to take actions to address these recommendations. Madam Chairwoman Speier, Ranking Member Kelly, and Members of the Subcommittee, this completes my prepared statement. I would be pleased to respond to any questions that you or other Members of the Subcommittee may have at this time. GAO Contact and Staff Acknowledgments If you or your staff have any questions about this testimony, please contact Brenda S. Farrell, Director, Defense Capabilities and Management, who may be reached at (202) 512-3604 or farrellb@gao.gov. In addition, contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. GAO staff who made key contributions to this testimony are Kimberly C. Seay, Assistant Director; Christopher Allison; Renee S. Brown; Vincent M. Buquicchio; Christopher Gezon; Won (Danny) Lee; Serena C. Lo; Dae B. Park; Samuel J. Portnow; and Clarice Ransom. This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.


Background In fiscal year 2019, states are required to spend at least 8 percent of CCDF funding for “quality activities”—activities that are designed to improve the quality of child care services the state provides. These activities may include supporting the professional development of the child care workforce and improving the supply and quality of child care programs and services for infants and toddlers. Table 1 describes examples of quality activities states may choose to fund with their required quality set-aside, as well as requirements for states to carry out certain activities from the CCDBG Act of 2014, where applicable. After setting aside funds for quality activities and administrative activities, states must spend at least 70 percent of discretionary funds that remain on subsidies for eligible families. They provide subsidies to eligible families through the CCDF program in the form of certificates or vouchers to use for child care in homes, child care centers, and classrooms, or through grants or contracts to child care providers. Children receiving CCDF subsidies may receive care alongside nonsubsidized children— that is, children who may be eligible for child care subsidies but who do not receive them, or who may be ineligible for child care subsidies. A Majority of States Reported Relying on CCDF Funds to Support Key Quality Child Care Activities A majority of states used fiscal year 2017 CCDF funds to entirely or mostly fund 7 of 10 major state child care activities, according to our survey of CCDF administrators in the 50 states and D.C. (see fig. 1). The 10 child care activities included in our survey, components of which are also required by CCDF, are key means through which states may choose to improve the quality of their child care services (i.e., quality activities). They also represent diverse aspects of a state’s child care system. Among states that relied on CCDF funding to support the quality activities, we found that, on average, states funded 6 of the 10 activities entirely or mostly with CCDF. Nearly one-third of states (16) funded at least 8 of the 10 to that degree. States reported that they relied on CCDF funding most frequently for the following activities: child care resource and referral systems, consumer education, and health and safety standards establishment and training. Child care resource and referral systems. More than three-quarters of states (40) reported in our survey that all (22) or most (18) of the funding they used for their child care resource and referral systems in fiscal year 2017 came from CCDF. Statewide systems of child care resource and referral agencies can serve an important role in supporting state quality improvement efforts, though not all states have them, according to HHS. For example, child care resource and referral agencies may provide training and technical assistance to child care providers and share consumer education with families, among other things. States may use CCDF funds to establish or support a system of local or regional agencies that is coordinated by a lead child care resource and referral organization. Officials in the states we interviewed described various ways in which their child care resource and referral agencies support child care providers and parents, such as: Delivering professional development, including training and technical assistance, to child care providers, regardless of whether or not the providers accept subsidized children, according to several CCDF administrators interviewed. Supporting parents by determining eligibility for subsidies, providing referrals for care, and offering information on child care quality, according to state officials. For example, one state houses eligibility specialists in regional child care resource and referral agencies, through which families apply for subsidies, while another state uses these agencies to refer families to child care providers and support families with specialists, including mental health consultants and infant specialists, as needed. Consumer education. About 70 percent of states (36) reported that all (12) or most (24) of the funding they used for consumer education activities in fiscal year 2017 came from CCDF. Consumer education activities are intended to help parents seeking child care make informed decisions and improve access to information that supports child development. States must certify that they have policies to make public the results of child care providers’ monitoring and inspection reports, as well as certify that they will collect and disseminate information on child care services available through CCDF, research and best practices concerning child development, and state policies regarding the social- emotional and behavioral health of children, among other requirements. Moreover, many of the 15 states we interviewed used child care resource and referral agencies to do this. Examples from our state interviews illustrate that: One state promotes awareness of its quality rating and improvement system for child care providers through materials available from the state’s child care resource and referral agencies, according to its CCDF administrator. Another state’s child care resource and referral system has a public awareness campaign aimed at the parents of infants, toddlers, and preschoolers to help families understand and identify quality child care, according to the head of the state’s child care resource and referral network. Parents in a third state can obtain information on child development through resources available from lending libraries, according to the state’s CCDF administrator. Health and safety standards. About 70 percent of states (36) also reported entirely funding (15) or mostly funding (21) the development or deployment of training for health and safety standards with CCDF in fiscal year 2017. According to the CCDBG Act, states are required to certify that they have health and safety standards in specific topic areas, such as the use of safe sleeping practices and pediatric first-aid, and certify that all CCDF providers will receive minimum health and safety training in these areas. Most of the 15 states that we interviewed went beyond CCDBG Act requirements and elected to apply their health and safety training requirements to all licensed child care providers in the state, and in some cases, to child care providers that are exempt from licensing. In doing so, officials described how their requirements served to elevate the health and safety of children in care regardless of whether they receive CCCF subsidies. Several state officials specifically credited the CCDBG Act as the impetus for their states’ changes. State officials we interviewed also described taking various approaches, including offering financial incentives, to facilitate child care providers in meeting training requirements. Examples of these approaches and their impact include the following: One state official said that while the state child care agency had wanted to increase health and safety requirements for child care providers for years, the reauthorization of the CCDBG Act propelled the state forward in its efforts to increase child care quality and require the same health and safety training of all licensed and license-exempt providers. One state offers health and safety grants to child care providers to meet these requirements, while another is considering increasing child care provider payment rates to a level that will allow them to meet the updated health and safety requirements, according to state officials. CCDF administrators in two states told us they are developing online training modules for the required health and safety training so child care providers can access the modules more easily and for free or have mailed training DVDs to every child care program in the state. CCDF administrators in almost all of the 15 states we interviewed told us their states set aside more than the minimum amount that CCDF required to support quality in 2017. They described how their states use quality set-aside funds to support child care licensing programs, accreditation, and quality rating systems for child care providers, among other things. Some state officials we interviewed also described specific supports for infants and toddlers, such as partnerships to provide training for child care providers around the care of this age group, and increases in provider payment rates for infant and toddler care, which is costly to provide, from the infant and toddler-specific set-aside. According to one state CCDF administrator, the ability to divert funds to activities that benefit infants and toddlers is critical as this is the neediest age—a time when children and parents need the most support. States Report That Consumer Education, Licensing, and Professional Development, Among Other Quality Activities, Also Affect Children Not Receiving Subsidies A range of CCDF quality activities, including consumer education, child care licensing, and professional development of the child care workforce affect the care of children not receiving subsidies (nonsubsidized children), according to our 51-state survey of CCDF administrators (see fig. 2). On average, states reported that 9 of the 10 activities included in our survey affect nonsubsidized children receiving child care in the state, with more than 40 percent of states (22) reporting that all of the activities affect nonsubsidized children, according to our analysis of the survey data. As previously noted, the activities serve as key supports for building quality in state child care systems. Of these activities, CCDF administrators unanimously cited three in our survey as affecting nonsubsidized children: consumer education; licensing, monitoring or background checks for child care; and professional development. Below are some specific examples of the way nonsubsidized children are affected by these activities, as discussed with CCDF administrators in our 15 state interviews. Consumer education. During our interviews, state officials discussed ways in which their CCDF programs share important information on child care quality and child development with all families, including those not receiving subsidies. As previously noted, many of the 15 states we interviewed rely on their child care resource and referral agencies to provide such information to the public. HHS requires states to have a website that includes, among other things, a searchable list of licensed child care providers and information about the provider’s quality rating, if available. States we interviewed use these and other consumer education tools, such as billboards, public service announcements, and commercials in an effort to reach a wide-ranging audience. Licensing, monitoring, or background checks. According to the CCDBG Act, states must certify they have policies to annually conduct unannounced inspections of all licensed CCDF providers for compliance with all child care licensing standards, including health, safety, and fire standards, with at least one pre-licensure inspection. But most of the 15 states we interviewed have elected to apply certain CCDBG Act requirements for CCDF providers, including those pertaining to monitoring and inspections, to all licensed providers in the state, according to their states’ CCDF administrators. Officials in several states suggested that updating their requirements for all licensed providers with the CCDF requirements establishes a high-quality foundation for child care that reflects the importance of a healthy and safe environment for all children receiving care, regardless of whether children receive a subsidy. Examples from some states that we interviewed are: In one state, where subsidized children make up about 20 percent of children in licensed care, the state’s CCDF administrator estimated that significant numbers of nonsubsidized children benefit from higher quality care, including from more extensive monitoring of all licensed providers. Another state applied the requirements for CCDF providers to all license-exempt child care providers (including those not serving subsidized children), which helps ensure that all children in care benefit from the updated monitoring, health and safety, and background check requirements. An official from another state that does not apply CCDBG Act requirements more broadly said that, because nonsubsidized children share classrooms with subsidized children, requirements that apply to subsidized providers, in turn, also still benefit the nonsubsidized children in their classrooms. In particular, he said that the requirement that all CCDF providers that serve subsidized children be inspected has opened up child care centers that previously, as license-exempt providers, were not inspected, and has resulted in improvements in some centers. Professional development. CCDF administrators we interviewed recognize professional development as key to high-quality child care for all children, including nonsubsidized children. The CCDBG Act requires states to describe the training and professional development requirements designed to enable CCDF providers to promote the social, emotional, physical, and cognitive development of children. According to HHS, states must also require ongoing training for CCDF providers that is accessible, appropriate to the age and setting of the children served, and aligned to a progression of professional development that includes a minimum number of annual hours of training for the child care workforce. As with certain other CCDBG Act requirements, a majority of states we interviewed have established the same professional development requirements for all licensed child care providers, whether or not they care for subsidized children, according to state officials. One CCDF administrator said that the updated CCDF requirements for subsidized providers were an impetus for her state to raise the training requirements for providers that do not care for children receiving subsidies and that are unlicensed. She said the updated, more comprehensive training requirements help ensure that all children are in care with child care providers that parents can trust. CCDF administrators also highlighted characteristics of their states’ professional development activities that serve to positively impact nonsubsidized children as well—namely, availability, accessibility, and affordability of professional development opportunities to child care providers. For example, state officials told us of making these opportunities available to all child care providers through online training courses, training and onsite consultation from child care resource and referral agencies, technical assistance and coaching, and resource lending libraries. Nearly all states we interviewed use their states’ quality set-aside funds to support such training, technical assistance, and/or coaching opportunities. Where training may not be free, CCDF administrators told us of financial incentives that assist child care providers in their efforts to increase quality through professional development. For example, several states use their quality set-aside funds to offer scholarship grant programs available to child care providers to help increase their qualifications, whether or not they care for subsidized children. One state offers incentive payments based on a provider’s level of attainment in the state’s career ladder, for which all providers are eligible to apply, according to its CCDF administrator, and can result in provider development that benefits the nonsubsidized children in their care. In addition to spending on quality activities, states reported through our interviews that nonsubsidized children also indirectly benefit from state spending on subsidies. According to officials in many of the 15 states that we interviewed, states’ spending on subsidies helps increase the economic stability of CCDF providers, which, in turn, also benefits nonsubsidized children in their care. Officials said that subsidizing providers to help pay for the cost of care for eligible families can provide a consistent source of revenue for CCDF providers that allows them to continue stable operations, invest in professional development, and increase teacher pay, for example. Such spending, in turn, can lead to improved child care quality as well as access (i.e., by helping providers stay in business) to nonsubsidized children, too, who are in their care, according to state officials. However, officials in many states we interviewed also noted that CCDF subsidies or related policies may negatively impact nonsubsidized children and families. For example, several said that state increases in payment rates for CCDF providers may lead providers to similarly increase the rates they charge for the nonsubsidized children in their care, which, some noted, could drive families for whom such care is no longer affordable to alternative, unregulated providers that may have lower quality standards. Rate increases can be particularly difficult for middle-income families who do not qualify for CCDF and are struggling to meet the current market rate of child care, according to one state’s CCDF administrator. CCDF administrators from several other states also noted a drop in CCDF child care providers in recent years due to various factors, including low payment rates, extensive CCDF requirements for inspections and background checks, and an insufficient number of children to sustain operating costs, for example. In much of one state’s neediest areas, local elementary schools often provide the highest quality care, according to the state’s CCDF administrator; however, with the addition of background checks that some school districts have found administratively burdensome and duplicative, the official said that many districts have dropped out of the CCDF program. States Most Often Report Plans to Spend the New CCDF Funds on Quality Activities That Affect All Children in Care, Despite Funding Uncertainty Among quality activities, states most often reported plans to spend the new discretionary CCDF funding from the Consolidated Appropriations Act, 2018 on three—licensing, consumer education, and professional development—the same activities that all states reported affect nonsubsidized children, according to our survey of CCDF administrators in the 50 states and D.C. (see fig. 3). Licensing, monitoring, or background checks. More than two thirds of states we surveyed (34) plan to spend the new CCDF funds on child care licensing or related activities of monitoring and background checks. During our interviews, many state CCDF administrators provided examples of how they plan to use new funds on licensing-related activities, such as hiring or increasing pay of licensing staff or making administrative or system improvements to facilitate the interstate background checks required under the CCDBG Act. For example, one state plans to enhance its online background check portal to streamline interstate coordination while another state plans to help providers pay for the interstate background check fees by offsetting the increased cost for the next 1 or 2 years. A third state, which has been operating under an HHS waiver that allowed for delayed implementation of the interstate background check requirements, now plans to use new funds to conduct the required checks, according to the state’s CCDF administrator. Without the new funds, officials from two states said that they may have had to reduce funding to other child care activities, including subsidies, in order to allocate the additional resources needed to comply with licensing, monitoring, or background check requirements. Consumer education. More than half of states we surveyed (30) said they plan to spend new funds on consumer education activities. Some state officials we interviewed described plans to enhance public state child care websites to make them more user-friendly or available in other languages, such as Spanish. For example, one state plans to improve online access to provider information by featuring a dashboard with a snapshot of each provider’s license history, including inspection violations. Officials from another state said they plan to use new funds to launch a public engagement campaign to provide timely and important information about child care and state-based child care services. In the absence of the new funding, officials from two states said they would likely need to reduce their efforts to better educate families statewide about important child development information and the states’ publicly- available tools that can help parents identify high-quality child care. Specifically, officials from one state said they would have to forgo plans to make their public child care website more sophisticated and consumer- friendly and officials from another state said they would not be able to conduct their planned public education campaigns. Professional development. More than half of states we surveyed (30) said they plan to fund professional development activities for child care providers. Officials we interviewed in several states told us about plans to use the new funds to implement or improve online professional development systems, such as by increasing online course offerings or creating training applications accessible by cellphone, which can improve accessibility for all child care providers. We also heard about plans in five states to use some new funds to provide specialized training, including training focused on infant and toddler-specific topics, caring for children exposed to trauma, and emergency planning and response. CCDF administrators from two other states described plans to fund more scholarships for child care workforce training and certification programs, including Child Development Associate credential programs. Lastly, officials in one state told us they plan to create a mentorship program whereby high-quality licensed providers mentor licensed-exempt providers in order to help providers who are interested in becoming licensed improve their quality and professional development qualifications. Without the new funds, officials from one state said they would not have been able to continue to support as many professional development opportunities that support both subsidized and nonsubsidized children, such as conferences, networking events, and coaching. Another CCDF administrator expressed concern that in the absence of the new funds, her state may have struggled to implement a new workforce registry system that tracks child care providers’ education and credentials. Most states reported plans to allocate the new funds to multiple state child care activities, according to our analysis of the survey data. Specifically, we found that more than two thirds of states plan to fund at least three of the activities, and half of states plan to fund at least five activities. Moreover, according to our survey, about 40 percent of states (20) also plan to spend at least some of the new funds to increase the proportion of funding set aside for quality activities beyond the required minimum for the year—which, as described earlier, they can use to fund these activities. During our interviews, we heard about states’ plans to spend new funds on a variety of qualifying activities, including child care resource and referral systems, accreditation of child care providers, and development of high-quality program standards. In the absence of the new funds, one state CCDF administrator told us that the state would likely have had to eliminate some optional quality activities, such as financial support to help providers become accredited. She further explained that the state is more willing to cut back on quality activities when there is insufficient funding than to disenroll families from the CCDF program. Aside from quality activities, states we surveyed also reported plans to spend new CCDF funds toward subsidies. More than half of states (31) plan to spend at least some of the new funds on increasing payment rates for CCDF providers or lowering parental copayments. For example, one state official we interviewed told us about plans to increase payment rates for infant and toddler care, with a goal to increase access to child care for infants and toddlers across the state. In addition, about half of states (25) we surveyed reported plans to spend new funds to implement two requirements that allow families to continue receiving subsidies for a longer period of time—the 12-month eligibility period and the graduated phase-out of assistance. Lastly, nearly one-third of surveyed states (16) reported plans to use new funds to pay for subsidies for children on their wait lists to receive child care. CCDF administrators in all of the states we interviewed that use a wait list (5) stated that they might have had to expand their wait lists in the absence of the new funds. However, several state CCDF administrators expressed uncertainty about their states’ plans for using the new CCDF funds in interviews (conducted in May and June 2018). Officials from more than a third of the 15 states we interviewed (6) said their spending plans were still in flux. In some of these states, officials said they were still developing and reviewing their funding proposals as part of their state’s legislative and budgeting process and they were awaiting future legislative approval or spending authorization. For example, in one state, the CCDF administrator said she was awaiting information on how much money the state would receive before she planned to convene stakeholder groups to discuss potential funding proposals. In another state, the CCDF administrator said her office needed to wait for other local budget appropriation decisions before her office could commit the new CCDF funds to specific priorities. Officials in more than half of the 15 states we interviewed also told us they faced challenges making spending decisions because they were unclear whether the new funds would be provided on an ongoing basis. For example, CCDF administrators in two states that plan to expand subsidies to children on their wait lists expressed concerns about having to disenroll children from the program if funding is discontinued. Officials from several states suggested that they are proceeding cautiously with spending decisions given there is no guarantee that the increased funds will be provided in the future, while an official from another state told us they are operating under the assumption that the new funds will be provided on an ongoing basis and do not have a contingency plan in the event that the funds are not continued. Agency Comments We provided a draft of this report to HHS for review and comment. HHS provided technical comments only, which we incorporated as appropriate. As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to the appropriate congressional committees, the Secretary of the Department of Health and Human Services, and other interested parties. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov. If you or your staff have any questions about this report, please contact me at (202) 512-7215 or larink@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff members who made key contributions to this report are listed in appendix II. Appendix I: List of States Interviewed Appendix II: GAO Contact and Staff Acknowledgments GAO Contact Staff Acknowledgments In addition to the contact named above, Janet Mascia (Assistant Director), Avani Locke (Analyst-in-Charge), and Elizabeth Hartjes made key contributions to this report. Also contributing to the report were Seto Bagdoyan, James Bennett, Randy De Leon, Kirsten Lauber, Sheila R. McCoy, Jonathon Oldmixon, Jessica Orr, James Rebbe, Almeta Spencer, and Amy Sweet.


Background In general, date labels on packaged foods are not required by federal regulations, except in the case of infant formula. However, manufacturers may choose to provide date labels to help consumers and retailers decide when the food is of best quality. These date labels may carry different introductory phrases, such as ‘“best by,” “sell by,” “use by,” or “best if used by,” prior to the date, according to the preference of the manufacturer. In most cases, these labels indicate quality or freshness (i.e., the last date by which the manufacturer believes the food will be fresh or taste best), according to USDA. However, according to representatives from the Food Marketing Institute, because date labels are not federally regulated, manufacturers use a number of different date labels across industry, and this variation in date labels may result in consumer confusion about the meaning of the labels. Consumer confusion about date labels on packaged foods contributes to food waste, according to various studies. Due to this confusion about what date labels mean, consumers may throw out food that is safe to eat, even if the food does not have visible signs of spoilage, according to these studies. For example, in a 2017 study, participants were asked to state what they thought a particular date label on a certain packaged food meant. The study found that participants did not have a consistent understanding of date labels—some thought the labels indicated safety, and some thought they indicated quality, and others were unsure what the labels meant. Furthermore, three studies estimated that from 34 percent to 70 percent of consumers think that their risk of foodborne illness increases if they consume a packaged food product past the date label. In addition to confusion about the meaning of date labels, one study found that consumers are confused about who is responsible for date labels. According to the study, more than one-third of consumers surveyed believed the federal government regulates date labels, and 26 percent were unsure. Federal and Nonfederal Roles Related to Date Labels USDA and FDA share oversight of nearly all the nation’s food supply but do not regulate most date labels and are not required to do so by federal law. USDA is responsible for the safety and proper labeling of meat, poultry, and egg products, and FDA is responsible for the safety and proper labeling of virtually all other foods. Within USDA, FSIS is the public-health agency responsible for ensuring that meat, poultry, and processed egg products are safe, wholesome, and accurately labeled. According to FSIS, its goals include lowering the incidence of pathogens that cause foodborne illnesses and limiting the occurrence of outbreaks, and ensuring that regulated products are properly packaged and labeled so consumers have access to important information about the product. Also within USDA, AMS provides voluntary quality-grading programs for producers of products such as milk, eggs, and meat. These quality- grading programs are paid for by the producers of these commodities and can require, among other things, that producers participating in these programs use date labels. In addition, USDA has research components that could address issues relating to date labels. For example, USDA’s National Institute of Food and Agriculture supports research through grants to individuals, institutions, and organizations, and the Economic Research Service conducts economic research to inform and enhance decision-making. FDA has statutory authority to regulate the safety of foods and nutrition labels on packaged foods not regulated by FSIS. However, the agency is not required by statute to regulate the use of date labels. FDA also exercises its general authority to assist state and local governments with food safety efforts through its State Cooperative Programs specifically for Grade A milk, molluscan shellfish, and retail and food-service establishments. As part of these programs, FDA provides technical support, guidance, and training to help its regulatory partners with reducing foodborne illnesses associated with these commodities. Also, in coordination with its regulatory partners and industry, FDA develops guidance, including guidance on date labels for certain products and in certain circumstances. Such guidance represents FDA’s best advice for a uniform system of provisions that address the safety and protection of food offered at retail and in food service. State, Municipal, and Tribal Governments As we reported in May 2016, the federal food safety oversight system is supplemented by states, localities, tribes, and territories, which may have their own laws and agencies to address the safety and quality of food. Generally, state, local and tribal governments may choose whether to regulate date labels on packaged foods. For example, the majority of states and the District of Columbia have some date labeling requirements for, most commonly, shellfish, dairy, and eggs, as figure 1 shows. Additionally, some states and the District of Columbia prohibit retailers from selling some packaged foods to consumers if the date on the label has passed. Furthermore, some municipalities choose to regulate date labels in addition to, or in the absence of, state regulations. For example, while Maryland prohibits the sale of grade “A” milk or milk products past the “Sell by” date marked on its cap or container, the city of Baltimore generally prohibits the sale of any perishable food past its expiration date. Tribal governments may also have regulations that address labels on packaged food. For example, the Navajo Nation Code has requirements related to labeling of some packaged foods, such as shellfish. Industry Where no state or local regulations are in place regarding date labeling, manufacturers may decide which of their packaged food products display a date label and what wording to use on the date label. Estimates on the number of different date labels currently in use across industry vary. Figure 2 below provides examples of introductory phrases for date labels currently used by packaged food manufacturers. In response to consumer confusion about date labels and resulting food waste, two industry associations, the Food Marketing Institute and the Grocery Manufacturers Association, in 2017 announced a voluntary industry initiative to encourage manufacturers and retailers to standardize date labels on packaged foods. This initiative calls for manufacturers to use either of two introductory phrases for date labels on packaged foods: (1) a “best if used by” label as an indication of product quality and (2) “use by” for certain perishable products that may be more susceptible to degradation of quality or potential food safety concerns. In December 2018, the Food Marketing Institute and the Grocery Manufacturers Association reported that in a consumer survey on these date labels, 88 percent of those surveyed said these two date label phrases were clear to them and 85 percent said they were helpful. Advocacy Groups, International Organizations, and Countries Some advocacy groups work to reduce consumer confusion over date labels as part of their overall food waste reduction efforts. For example, Rethink Food Waste Through Economics and Data (ReFED), an advocacy group committed to reducing food waste in the United States, in 2016 issued a report that outlined key steps to reduce food waste. The report listed standardizing date labeling as one of the top three solutions to reducing food waste with the greatest economic value and net environmental benefit. According to representatives from ReFED, the organization works alongside industry to promote the Food Marketing Institute and the Grocery Manufacturers Association joint voluntary initiative by providing manufacturers with a tool they can use to determine which wording to use on date labels for different products. In addition, according to these representatives, ReFED is developing methods to disseminate information to consumers about the meaning of date labels. Representatives from the Natural Resources Defense Council (NRDC), an international nonprofit environmental advocacy organization, said that NRDC is coordinating with the National Ad Council, a nonprofit organization that provides public-service communications, to develop a multiyear outreach and education campaign aimed at reducing household food waste. According to NRDC representatives, this joint effort may include information about date labels. Furthermore, in 2017, NRDC and the Harvard Food Law and Policy Clinic issued a report that found that the lack of standard date labels leads to a mistaken belief that past-date food is unsafe to consume, which causes unnecessary waste. The report called for Congress to pass legislation or for FDA and USDA to work together to create uniform regulations that standardize date labels throughout the nation. International entities have also taken steps to address date labeling practices and make date labels clearer to consumers. For example, according to its website, the Consumer Goods Forum—an association of 400 manufacturers and retailers across 100 countries that sell globally— has teamed up to help meet the United Nations sustainable development goal that calls for cutting in half per capita global food waste at the retail and consumer levels and reducing food losses along production and supply chains by 2030. As part of this effort to reduce food waste, the Consumer Goods Forum has called for standardized date labels. Other countries have also taken steps to address date labels. For example, in the United Kingdom, in 2008 a nonprofit group conducted research that found that consumers threw out about 22 percent of food that they could have eaten, because they were confused about what the date labels meant. In 2015, the United Kingdom government issued guidance on date labels, specifically that packaged foods must display either a “best before” or “use by” date on the packaging or label of prepacked food products. According to this United Kingdom guidance, a “use by” date label communicates that there may be a safety issue with consuming the product after the date. Furthermore, selling food that is past its “use by” date is prohibited in the United Kingdom. Additionally, the Canadian government has standardized date labels, requiring that prepackaged products with a durable life of 90 days or less be labeled with date markings and storage instructions, where applicable. Such foods must display “best before” and its corresponding French, “meilleur avant.” Federal and International Roles Related to Food Loss and Waste According to a 2014 USDA report, food loss and waste represents significant amounts of money and other resources invested in food production, including land, fresh water, labor, energy, agricultural chemicals (e.g., fertilizer, pesticides), and other inputs to produce food that does not ultimately meet its intended purpose of feeding people. Furthermore, according to the 2014 report, reducing food waste will become an increasingly important strategy in the future to help feed a growing human population both here and abroad. In the United States, USDA and EPA are leading the federal government’s efforts to reduce food loss and waste, according to officials from the Office of Management and Budget and the Council on Environmental Quality. For example, in 2013, USDA and EPA launched the U.S. Food Waste Challenge for participants across the food supply chain to share best practices on reducing, recovering, and recycling waste. Furthermore, in September 2015, USDA and EPA announced a national goal to reduce food loss and waste in the United States by 50 percent by 2030, which aligns with the United Nations sustainable development goal that calls for cutting in half per capita global food waste. According to FDA officials, the agency was not involved with establishing the national goal because the agency has a limited mission related to food loss and waste; it is primarily responsible for protecting public health by ensuring the safety of the nation’s food supply, among other things. USDA and FDA Have Taken Steps to Address Consumer Confusion about Date Labels USDA Has Issued Guidance for Consumers and Industry USDA and FDA have taken steps to address consumer confusion about date labels on packaged foods. For example, USDA has issued guidance to consumers and industry, promulgated regulations and implemented policies, and funded research on issues related to date labeling. In addition, FDA has issued information to consumers and supported industry efforts to standardize date labels. In December 2016, USDA’s FSIS announced the availability of a fact sheet that provides guidance related to date labels for industry and consumers. The fact sheet, among other things, explains the meaning of commonly used phrases on date labels and recommends that grocery manufacturers and retailers that use date labels on their products use the language “best if used by” to reduce consumer confusion and resulting food waste. According to an FSIS announcement at the time, the agency chose this phrase because research showed that consumers easily understand the phrase as an indicator of food quality rather than food safety. FSIS also solicited comments on the fact sheet and, in April 2019, after receiving and reviewing comments, updated the fact sheet by, among other things, adding “freeze by’“ to the list of phrases commonly used on labels to describe food quality dates. Figure 3 shows excerpts from the 2019 fact sheet. In addition, FSIS offers a smartphone application (app), called FoodKeeper, that provides information for consumers on the shelf life of products, how to use food when it is at peak quality, and how to store food properly. FSIS developed the FoodKeeper app in 2015 in partnership with Cornell University and the Food Marketing Institute. The app offers users advice on how to store more than 650 food and beverage items, with specific storage timelines for the refrigerator, freezer, and pantry, depending on the nature of the product. In addition, the app allows consumers to note in their devices’ calendars when they purchased the products and to receive notifications when these products are near the end of their recommended storage date, among other things. According to FSIS, the agency is working on an updated version of the app. USDA Has Promulgated Regulations and Implemented Policies USDA has promulgated regulations and implemented policies related to required or voluntary date labels on certain products, such as poultry and eggs, and on foods used for its nutrition assistance programs. For example, FSIS has promulgated regulations that require that either the immediate container or the shipping container of all poultry food products be marked with a code or with the date the product was packed. According to FSIS, while USDA does not require date labeling for quality or food safety for products under its purview, the agency requires this “pack date’’ for poultry products to help the agency identify product lots and facilitate trace-back activities in the event of an outbreak of foodborne illness. Additionally, FSIS has promulgated regulations regarding voluntary date labeling. While there are no regulations requiring meat products to have a calendar date, a meat manufacturer may voluntarily place a date on the package. For both poultry and meat products, FSIS’s regulations regarding language on these labels require that this date contain the day and month and be accompanied by a phrase explaining the meaning of the date, specifically “packing” date, “sell by,” or “use before.” The regulations also give manufacturers the option of adding a further qualifying phrase such as “for maximum freshness” or “for best quality.” In the case of meat and poultry products that are hermetically sealed, dried, or frozen, the year must be included as well, to prevent misleading consumers. According to FSIS, a retailer cannot remove or change the date while the product remains in its original packaging if a meat or poultry manufacturer voluntarily places a date on the package. In addition, AMS has promulgated regulations regarding a voluntary egg grademark program, in which egg producers may obtain a USDA grademark, or shield, on their eggs that indicates they meet applicable quality and size standards. The regulations contain requirements related to date labels. Among other requirements to obtain a grademark, the cartons or consumer packaging containing these eggs must show the day of the year on which the eggs were packed. Specific introductory phrasing for the date label—such as sell by, best by, or use before—is not required, but if these terms are used, AMS policies restrict the number of days from the pack date that can be used on a date label. An egg producer may choose to not use an expiration date and still receive AMS certification, but the lot number must be present on each carton. Cartons not identified with a USDA grademark are not subject to federal regulation; however, regardless of whether the eggs bear a USDA grademark, they are subject to state and local date labeling requirements. Furthermore, USDA’s Food and Nutrition Service, which administers 15 federal nutrition assistance programs, policy, last updated in 2017, clarifies that date labels indicate quality, not safety. This policy references the agency’s regulation that prohibits distributors of food assistance from providing food with expired date labels or food that is “out-of-condition,” regardless of the date on the label, to recipients of any Food and Nutrition Service programs. The policy states that, to give program recipients the opportunity to eat all donated foods before their expiration dates, distributors and recipient agencies should use an inventory-management system that distributes products marked with the earliest end date first, even if they were received after other similar products. USDA Funded Research Related to Date Labels From 2008 through 2018, USDA provided funding for two grants related to date labels, resulting in three studies: one grant resulted in a 2008 study, and the other grant resulted in studies in 2017 and 2018. The 2008 study assessed participant understanding of date labels on ready-to-eat meat and poultry products to minimize the risk of listeriosis in vulnerable populations. The study found that participants paid attention to the date labels but varied highly in their interpretation of the statements. However, they generally interpreted “sell by” date labels as primarily intended for the retailer’s use on when to pull stock and “best if used by” labels as pertaining more to quality than safety considerations. The researchers reported that participants considered “use by” statements clearer and more helpful than “sell by” or “best if used by” labels and that they believed there was a need for a standardized approach to labeling. The study recommended that if a “sell by” date is used on a product solely for the store to know when to pull a product off the shelf, then a “consume or use by” date should also be implemented on behalf of the consumer. The 2017 study examined, among other things, consumer understanding of phrases on date labels—specifically, “best by,” “fresh by,” “sell by,” and “use by”—on specific products and how these labels affected the participants’ willingness to waste the food. The study found that participants had different levels of willingness to waste food depending on the phrase on the label. In the study, willingness to waste was highest for “use by” and lowest for “sell by,” and this difference held regardless of the product. The researchers suggested that this could be because “use by” may be the least ambiguous and suggestive of food safety, while, conversely, “sell by” may the most ambiguous and least suggestive of food safety. The researchers suggested that if manufacturers move exclusively to the “sell by” date label, this could lead to less waste in the food system. However, while the study identified phrases least likely to result in food waste, it focused on only three products and did not address or make recommendations about steps federal agencies could take to address consumer confusion about date labeling. The 2018 study examined consumer perception of date labels— specifically, “use by” and “best by”—on deli meat and spaghetti sauce. The study found that participants had differing perceptions of date labels by product and what each introductory phrase on the labels meant—that is, whether they reflected safety, quality, taste, or nutrition. Generally, the study found that consumers tended to view “use by” as reflective of safety and nutrition, and “best by” as indicative of quality and taste. The three studies looked at consumer confusion on date labels on certain packaged foods but did not determine which introductory phrase for a date label would be most effective for reducing such confusion across a wide range of products that consumers may purchase, quantify the impact of such confusion on food waste, or determine steps USDA or other federal agencies could take to reduce waste resulting from such confusion. USDA’s 2014 report on food waste noted that food loss (particularly the food waste component) was becoming an increasingly important topic both domestically and internationally. Moreover, according to that report, better estimates of the amount and value of food loss, including food waste, could help serve as quantitative baselines for policymakers and the food industry to set targets and develop initiatives, legislation, or policies to minimize food waste, conserve resources, and improve human nutrition. Previously, we have reported that the nation’s increasingly tight budget environment underscores the need for federal research agencies to set priorities carefully and make effective use of limited research funding. USDA officials told us that their awareness of the role of consumer confusion about date labels and its effect on food waste had increased over time. Furthermore, these officials told us they planned to consider funding additional research if their process for determining research priorities indicates additional research is needed. FDA Regulates Date Labels on Infant Formula, Has Provided Information on Date Labels to Consumers, and Has Supported Industry Efforts to Standardize Date Labels FDA has taken some actions related to date labeling, such as promulgating regulations regarding date labels on infant formula. For example, since 1985, FDA has required that infant formula display a specific “use by” date on each container of infant formula, which specifies the date after which the formula should not be fed to infants. According to FDA, this label indicates that the manufacturer guarantees the nutrient content and the general acceptability of the quality of the formula up to that date. In addition, since 1993, FDA has published the Food Code, a model for safeguarding public health and ensuring food is unadulterated and honestly presented when offered to the consumer. According to FDA, it represents the agency’s best advice for a uniform system of regulation that address the safety and protection of food offered at retail and in food service, and, while it is not a federal requirement, it is designed to be consistent with federal food laws and regulations. The 2017 FDA Food Code, which is the most recent, contains limited provisions related to date labels applied by manufacturers of packaged foods sold in retail food stores and food-service establishments. For example, the Food Code contains a provision regarding shellfish. It specifies that retailers should only obtain shucked shellfish in packages that identify the “sell by” or “best if used by” date for packages of less than a half-gallon or the date shucked for those of a half-gallon or more. According to Food and Drug Administration (FDA) documents, in response to infant- formula products that were causing illnesses among children because the products lacked sufficient nutrients and industry had too much discretion to decide the appropriate nutritional content of these products, Congress passed the Infant Formula Act of 1980. The act mandates that FDA set uniform standards for the nutritional content of infant formula. Under this act, FDA established a range of regulations affecting infant formula, including a requirement that its labels include “use by” dates. The regulations mandate that manufacturers determine dates on infant formula based on tests that prove the concentration of nutrients is adequate for the health of children up to the marked date. In addition to displaying a “use by” label, manufacturers are required to regularly test for the harmful pathogens (disease-causing bacteria) Salmonella and Cronobacter and demonstrate that the infant formula they produce supports normal physical growth. Additionally, the Food Code’s provisions regarding the labeling of packaged foods state that “food establishment or manufacturers’ dating information on foods may not be concealed or altered.” However, the Food Code is voluntary and does not have provisions for the use of open- code date labels. The Food Code establishes limits for the time that a refrigerated, ready-to-eat food that has been opened or prepared in a food establishment may be held prior to sale or service. The date the food shall be consumed, sold, or discarded must be clearly marked; however, the date is not required to be visible to consumers and is handled separately from the disposition of packaged foods on which a manufacturer has voluntarily placed a date label. The Food Code also specifies how foods prepared in-house using specialized processing methods, such as reduced-oxygen packaging, are to be labeled to ensure they are stored, displayed for sale, or consumed within time limits considered adequate to reduce the risk of foodborne illness. In October 2017, FDA issued information on its website for consumers with food safety tips for foods purchased or received from a charity or bargain store. For example, according to the information, an expired “sell by” date does not necessarily mean that a food is spoiled or unsafe. However, in some cases, if food has not been handled safely, illness- causing bacteria may grow. In addition, the information states that consumers should avoid purchasing packaged foods that require refrigeration and that are past the “use by” or “sell by” dates because these foods may be perishable and may have begun to spoil. Moreover, in May 2019, FDA published an educational fact sheet for consumers on reducing food waste while maintaining food safety. This fact sheet includes information about the meaning of language on date labels, as consumers may waste food if they misunderstand what date labels actually mean. For example, it explains that a “best if used by” date indicates that a product will be at its best flavor and quality. On the fact sheet, FDA recommends consumers download USDA’s FoodKeeper app to know how long various food products will keep in the pantry, in the refrigerator, and in the freezer. Furthermore, FDA has promoted a voluntary industry initiative to standardize approaches to date labeling of packaged foods and improve consumer understanding of the meaning of date labels. In May 2019, FDA issued a letter to industry that described FDA’s position on the voluntary industry standard proposed by the Food Marketing Institute and the Grocery Manufacturers Association in January 2017. This voluntary industry standard called for using the “best if used by” introductory phrase in quality-based date labels on packaged foods. FDA said the agency strongly supports industry’s voluntary efforts to use the “best if used by” introductory phrase when grocery manufacturers choose to include a quality-based date label to indicate when a product will be at its best flavor and quality. While the Food Marketing Institute and the Grocery Manufacturers Association recommended the use of the introductory phrase “use by” to indicate the date by which products should be consumed or discarded for safety reasons, FDA did not address the “use by” product date label for safety reasons in the agency’s letter to industry. USDA and FDA Have Taken Steps to Coordinate with Each Other and Some Stakeholders but Have Not Coordinated with Other Stakeholders on an Approach to Date Labels USDA and FDA Have Coordinated on Some Initiatives USDA and FDA have coordinated on some initiatives focused specifically on date labels on packaged foods. For example, USDA and FDA officials told us the agencies are working together to develop information for food banks, food donors, and recipients of donated food regarding how to interpret date labels on packaged foods donated to food banks to ensure that food that is past the date on the label—but otherwise edible—is not wasted. USDA officials told us the agencies plan to finalize this information in 2019. USDA and FDA are also collaborating with EPA on an initiative to reduce food loss and waste. In October 2018, USDA, FDA, and EPA signed a formal interagency agreement, referred to by the agencies as the Winning on Reducing Food Waste Initiative. The formal agreement states the agencies are committed to increasing collaboration and coordination in existing federal programs in areas of mutual interest relating to the reduction of food loss and waste, and to developing an interagency strategy to address this issue. According to USDA’s website, as part of this collaborative effort, the agencies agreed to coordinate food loss and waste actions, such as education and outreach, research, community investments, voluntary programs, public-private partnerships, tool development, technical assistance, event participation, and policy discussions on the impacts and importance of reducing food loss and waste. According to the agreement, the agencies will seek to work together at the federal level with actors throughout the entire food supply chain to leverage the private and nongovernmental sectors. Specifically, the agreement states the agencies will seek to educate these actors on best practices to reduce food loss and waste in the growing, manufacturing, transporting, selling and disposing of food, handling, preparation and storage of food, as well as creating new uses for excess food. After announcing the formal agreement in October 2018, the three agencies in April 2019 announced a federal interagency strategy to prioritize and coordinate their efforts as they implement the formal agreement. This strategy identifies date labeling as a priority action area and states that “establishing and communicating clearer, coordinated voluntary guidance on food date labels and liability protection around food donation could help increase food recovery and lead to reductions in food waste and food insecurity.” In the strategy, the agencies state that they built on information from several sources, including EPA and USDA’s Call to Action by Stakeholders: United States Food Loss & Waste 2030 Reduction Goal and two reports from nonprofit organizations, all of which cited clarifying or standardizing date labels as a key element for food loss and waste reduction efforts. Establishing a formal agreement is a positive step and aligns with leading practices for interagency collaboration. We have previously found that interagency collaborations benefit from collaborative mechanisms, such as written agreements, in that agencies can strengthen their commitment to working collaboratively, which USDA and FDA have done. USDA and FDA Have Taken Steps to Work with Some Nonfederal Stakeholders to Address Date Labels but Have Not Coordinated with Others In addition to steps they have taken toward interagency collaboration, USDA and FDA have taken steps to work with some nonfederal stakeholders—nonprofit organizations and an international organization— on date labeling. For example, in February 2019, USDA, EPA, and FDA met with NRDC and the Ad Council to discuss campaigns to inform the public about ways to reduce food loss and waste, which includes consumer education on date labeling. According to FDA officials, the agencies will meet with the two groups later in 2019 to continue this discussion. In addition, in April 2019, in keeping with the goal in the agencies’ Winning on Reducing Food Waste Initiative to expand collaboration with nonfederal stakeholders, EPA, FDA, and USDA signed a formal agreement with ReFED to collaborate on efforts to reduce food loss and waste. The agreement outlines actions the agencies and ReFED agree to take, including that the agencies will consult with ReFED to develop approaches for measuring the success of various strategies and techniques being deployed nationwide to reduce food waste. Furthermore, USDA and FDA provide senior staff and executive delegates to represent the United States at the Codex Alimentarius Committee on Food Labelling, among other committees under the purview of the Codex Alimentarius Commission. The commission, an international intergovernmental body, produces the Codex Alimentarius, or “Food Code,” a collection of standards, guidelines, and codes of practice related to food, food production, and food safety. In 2018, the commission revised its voluntary guidance on date labeling to clarify the distinction between dates based on food quality and those based on food safety. Because the Codex Alimentarius is a voluntary reference standard, its guidance, including on date labels, is not binding on member countries, including the United States. However, USDA and FDA have not consulted with all relevant stakeholders. For example, state and local officials we spoke with told us that USDA and FDA had not collaborated with them or consulted them on approaches to date labels. In our prior work, we identified a leading practice for interagency collaboration that calls for ensuring that the relevant participants are included in interagency collaborative efforts. Such efforts can include other federal agencies; state, local, and tribal governments; industry; and nonprofit advocacy organizations. Generally, state, local and tribal governments may choose whether to regulate date labels on packaged foods. For example, the majority of states and the District of Columbia have date labeling requirements. Advocacy organizations and state officials told us that efforts at reducing consumer confusion about date labels could be hindered without federal leadership, as states may continue to have varying approaches. USDA and FDA officials told us that they did not have a specific mechanism to coordinate or consult with state, local, or tribal officials on creating a common approach to date labels. By developing a mechanism to facilitate coordination with nonfederal stakeholders—including state, local, and tribal governments—on actions related to date labels as part of their efforts to reduce food loss and waste, USDA and FDA could better assure that approaches they take to address consumer understanding of date labels are effective in helping reduce consumer confusion and resulting effects such as wasted food. Conclusions USDA and FDA have taken important steps toward reducing consumer confusion about date labels by, among other things, providing information to consumers and, in USDA’s case, by conducting research on food waste. In addition, in October 2018, USDA, FDA, and EPA signed a formal agreement aimed at improving coordination and communication across federal agencies to educate Americans about the benefits of reducing food loss and waste. However, although USDA and FDA have taken steps to work with some nonfederal stakeholders, such as ReFED, on date labels, they have not worked with state, local, and tribal governments. We have identified that ensuring relevant stakeholders have been included in the collaborative effort as a leading collaboration practice. By developing a mechanism to facilitate coordination with relevant nonfederal stakeholders on actions related to date labels as part of their efforts to reduce food loss and waste, USDA and FDA could better assure that approaches they take to address consumer understanding of date labels are effective in helping reduce consumer confusion and resulting effects such as wasted food. Recommendations for Executive Action We are making two recommendations to the agencies in our review: The Secretary of Agriculture should work with the Commissioner of FDA to develop a mechanism to facilitate coordination with relevant nonfederal stakeholders, including state, local, and tribal governments, on actions related to date labels as part of their efforts to reduce food loss and waste. (Recommendation 1) The Commissioner of FDA should work with the Secretary of Agriculture to develop a mechanism to facilitate coordination with relevant nonfederal stakeholders, including state, local, and tribal governments, on actions related to date labels as part of their efforts to reduce food loss and waste. (Recommendation 2) Agency Comments and Our Evaluation We provided a draft of this report to the Departments of Agriculture and Health and Human Services for review and comment. In its comments, reproduced in appendix I, USDA agreed with our recommendation to the agency and described current and future actions to implement the recommendation. Similarly, in its comments, reproduced in appendix II, the Department of Health and Human Services agreed with our recommendation to it and described current and future actions to implement the recommendation. USDA and the Department of Health and Human Services provided technical comments, which we incorporated as appropriate. We are sending copies of this report to the appropriate congressional committees; the Secretaries of Agriculture and Health and Human Services; and other interested parties. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov. If you or your staff members have any questions about this report, please contact me at (202) 512-3841 or morriss@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff members who made contributions to this report are listed in appendix III. Appendix I: Comments from the U.S. Department of Agriculture Appendix II: Comments from the U.S. Department of Health and Human Services Appendix III: GAO Contact and Staff Acknowledgments GAO Contact Staff Acknowledgments In addition to the contact named above, Anne K. Johnson (Assistant Director), David Bennett (Analyst-in-Charge), Tara Congdon, and Jordan Mettica made key contributions to this report. Carol Bray, Kevin Bray, Serena Lo, Oliver Richard, Danny Royer, Kiki Theodoropoulos, and Sarah Veale also contributed to this report.