At the time, CVS was fined $3,500: not so much a slap on the wrist as a nuzzle on the neck. No surprise that the problem would be a recurring one: Between March and May 2008, the attorney general's office discovered that 140 New York CVS stores -- 61% of the locations it inspected -- were selling expired drugs, infant formula, milk, and eggs, some more than two years past expiration.

On June 12, 2008, the attorney general's office revealed its findings to CVS and announced its intention to sue. CVS responded: "We will work aggressively to ensure that our review and removal procedures are followed consistently, in all our stores." In an inspection five days later, almost 40% of its stores were still found to be stocking expired items.

CVS responded to our inquiry about this matter with a clod of corporate boilerplate: "CVS is fully committed to maintaining inventory management practices to prevent expired products from being sold to customers. We have a comprehensive national product removal policy in place to ensure that our stores do not sell products past their expiration dates." It's not clear when CVS's "comprehensive national product removal policy" went into effect, or how it functions; director of public relations Michael DeAngelis, in an e-mail, merely cited plans to "post in-store notices reminding customers to check expiration dates."

CVS seems quite comfortable with putting its policing responsibility in the hands of its customers. The chain ran an ad in the May 2008 issue of Good Housekeeping advising readers to clear out their medicine cabinets, pointing out, "Expired products are not just ineffective but can be harmful as well." The ad urged customers to come to CVS to "replace some of the products you tossed." (DeAngelis's e-mail stated that the chain "is not aware of any consumers who were harmed by expired products that may have been sold in CVS/pharmacy stores.")

A mixed message on OTC drugs' expiration dates should come as no surprise; expired milk and eggs are one thing, but 90% of drugs retain their efficiency long after their pull dates, according to a U.S. army study. Even FDA scientists have argued that expiration dates have more to do with marketing than public safety. That gives little impetus for stores to police their OTC medications' expiration dates aggressively.

Pulling expired meds is a time-consuming, expensive process, and consumers replacing their expired or nearly expired drugs with new drugs bring lots of revenue to drugstores. So it's easy to see why CVS and Rite Aid would drag their feet on expiration compliance. In fact, the only economic impetus for spending money on expiration compliance is the threat of lawsuits and fines.

The settlements against CVS and Rite Aid help New York customers, but they don't redress expiration policing problems in other states. The issue seems to be a national one; inspectors have found similar problems with expired products in California, Pennsylvania, and New Jersey. If expiration dates really are merely a marketing tool, perhaps they need to be extended. If they're not, then it's time for the FDA to step up to the plate.