Failure to Follow WIC Stocking Requirements Can Endanger Your Program Status

September 2015

California Grocer, Issue 4

If your store is a participant in the women, infants and children (WIC) program, failure to vigilantly keep mandated foods on the shelf and remove “outdated” inventory could put your store at risk of disqualification from the program.

Maintaining the proper inventory of WIC products can be difficult, especially during a busy shopping day when inventory is quickly depleted

However, during a WIC inspection, something as small as having only eight items on the shelf when the minimum stocking requirement is 10, or having even slightly “outdated” merchandise on the shelf, are violations that can in some instances result in your store’s disqualification from the program.

All WIC program participants, from small mom-andpop stores up to big box retailers, enter into a Vendor Agreement which, among other things, mandates that certain types and quantities of foods be kept on the shelf, and that such foods not be “outdated.”

Vendors are responsible for training their employees in all WIC program rules, including what merchandise must be on the shelves at all times. Such vigilance is important because WIC investigators conduct routine monitoring visits to ensure compliance with the program rules, and failure to follow these rules may result in violations that can lead to disqualification from the program by the California Department of Health Care Services.

We have seen the WIC rules enforced strictly, even when the rules are ambiguous.

For example, Title 22, California Code of Regulations, Section 40741(a)(6), which is incorporated into the Vendor Agreement, prohibits the sale of “outdated merchandise.” But, neither the regulation nor the Vendor Agreement define the term “outdated merchandise.”

Labeling terminology varies, and includes terms like “Best By,” “Best Before,” “Use By,” and “Sell By,” with no uniform standard for the use of these terms. Labels that include “Best By” and “Best Before” dates are generally used by food manufacturers to communicate to retailers when that item will reach peak quality, rather than convey a date beyond which the food should not be consumed.

Food items that include terms like “Use By” and “Sell By” provide more clarity for store owners regarding when they can no longer sell the product. Many store owners treat all of these label dates the same, regardless of the different meaning that the manufacturers intends them to convey, and endeavor not to have any items on their shelves that are beyond the “Best By,” “Best Before,” “Use By,” or “Sell By” date on any given item.

When it comes to WIC merchandise, it’s especially prudent to take a conservative approach and keep all WIC products off the shelves that are beyond any of these dates in order to avoid a WIC violation for selling “outdated merchandise.”

Despite the fact that California regulations do not define what is meant by “outdated merchandise” and USDA literature recognizes that food items sold beyond a “Best By” or “Best Before” date may be beyond their peak quality but are not necessarily spoiled, WIC has taken the position that such food items are “outdated” and having them on the store shelf is a violation of WIC rules.

In a WIC appeal on behalf of one of our clients, an Administrative Law Judge recently agreed with WIC and ruled that “outdated merchandise” includes all foods stocked after the “Best By” date, regardless of any actual safety risk.

In the ruling, the Administrative Law Judge recognized the ambiguity in such labeling, but took a “better safe than sorry” approach. While this ruling does not set binding legal precedent on this issue, we believe that other Administrative Law judges would likely reach the same result.

WIC vendors are advised to treat all WIC products that are beyond the “Best By” or “Best Before” dates as being “outdated” under WIC rules.

WIC is also especially strict when it comes to the program’s minimum stocking requirements.

It is a violation of the WIC rules not to have a minimum number of certain products on the shelf at all times. Failure to meet these minimum stocking requirements is a violation that, in cases of multiple or repeat violations, can lead to disqualification from the program.

The minimum stocking requirements are very specific, not only as to the type of the product, but also as to the package size. Because of WIC’s strict enforcement practices, vendors participating in the WIC program should be vigilant in following the WIC stocking requirements.