Federal Liability Protections for Donating Food
Updated: Jul 23, 2020
By Sarah Everhart
Disposing of consumable food is an unfortunate reality on many farms and in many food businesses. Sometimes food that is disposed can be donated. In a previous post, Paul wrote about the legal protections for Maryland farmers who allow organizations such as the Maryland Food Bank onto farms to glean food from fields. There are also legal protections and tax incentives for the direct donation of food to non-profit organizations.
The federal Bill Emerson Good Samaritan Food Donation Act (42 U.S.C. §1791) (the “Act”), passed in 1996, protects a donor of the food and the recipient non-profit organization against civil and criminal liability arising from the nature, age, packaging, or condition of an apparently wholesome food or an apparently fit grocery product. The Act does not protect a donor or recipient organization from gross negligence and/or intentional misconduct, which require a purposeful act or failure to act done with the knowledge that it will cause harm to another. The Act protects a wide range of food donors and farmers are specifically included in the types of donors protected by the Act.
To be protected by the Act, donors and recipient non-profit organizations must meet the following four requirements:
The food must be donated to a nonprofit organization in good faith.
The food must meet all federal, state, and local quality and labeling requirements; if all quality and labeling requirements are not met, the food must be reconditioned to meet these requirements before donation.
The donated food must be distributed by the receiving nonprofit to needy individuals; and
The needy individuals receiving the food may not pay for it.
Interestingly, in 2011, University of Maryland College Park students Ben Simon, Mia Zavalij, and Cam Pascaul, after noticing dining hall food being disposed of, convinced the University to donate dining hall food to local organizations to feed the needy by explaining the liability protections available to the University established by the Act. The students went on to establish the Food Recovery Network, the largest student movement against food waste and hunger in America.
To read more about the Act and how it can be expanded and strengthened, check out this fact sheet from the Harvard Food Law and Policy Clinic. Also see this document to learn about tax incentives for farmers making food donations. To hear more about this topic, sign up for this upcoming webinar (January 12) on Repurposing Food, Reducing Risk: Legal & Practical Dimensions of Putting Excess Food to its Highest & Best Use.
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