• Marlene

Food Donation Laws And Food Waste

In anticipation of the 20th anniversary of the Bill Emerson Act, Trellis has partnered with 412 Food Rescue, a Pittsburgh based non-profit dedicated to reducing food waste, to bring you more information about laws surrounding food donations. In today’s post we’re going to break down the Bill Emerson Act, the federal law that limits liability for food donation to non-profits, as well as Pennsylvania food donation laws.

Food waste is a problem. Period. According to the Food and Agriculture Organization approximately 40 percent of food in the U.S. goes to waste. However, it’s also reported that approximately 14% of U.S. households (17.4 million households) are food insecure. So there are hundreds of pounds of food going to waste every year, but people are still going without adequate nutrition.


One way to help combat this issue is the collection and distribution of food that would normally go to waste, but is still perfectly edible. The challenge is that some stores and restaurants may be hesitant to donate food because they don’t know what they can donate, and are worried about liability for the food after donation.  In hopes of addressing these issues, President Bill Clinton signed the 1996 Bill Emerson Good Samaritan Food Donation Act to encourage donation of food and grocery products to nonprofit organizations to distribute to needy individuals by relieving donors of liability for any donations.


In Allegheny County, 412 Food Rescue works with food retailers, wholesalers, restaurants, caterers, universities, and other food providers to rescue un-sellable but perfectly good food in order to combat food waste. They then work with community organizations throughout Allegheny County—from soup kitchens, to school backpack programs, and other non-profits to distribute the rescued food those who are food insecure. Because 412 Food Rescue works with donors and distributes donated food, the Bill Emerson Act and local food safety laws are crucial to helping further their mission. Trellis Legal is a big supporter so we thought we would share the following information about the laws to help spread the word about how easy and legally safe it is to donate food!


The Bill Emerson Good Samaritan Act


The Bill Emerson Good Samaritan Act (the “Act”), named in honor of Missouri representative Bill Emerson who fought for an Act that would standardize limited liability for food donations but sadly passed away before its passage, relieves food donors and receiving non-profits from civil or criminal liability related to the donated food so they can help reduce food waste while not having to worry about potential legal issues. Property owners that allow gleaning are also not liable for any injury or death of gleaners on their property.


Protected Entities: Who does the Act Apply to?


The Act applies to individuals, businesses, non-profits, officers of businesses and non-profits, gleaners, and property owners that allow gleaning on their property so long as the meet the other requirements of the Act. Non-profits include both those that donate and those that receive and distribute the donated food.


Qualifying Food


For the Act to apply, the food must be “qualifying food.” Qualifying food must be “apparently wholesome” or an “apparently fit grocery product,” and meet “all quality and labeling standards imposed by Federal, State, and local laws and regulations,” even if it is not “readily marketable due to appearance, age, freshness, grade, size, surplus or other conditions.”


Food and grocery products that do not meet all Federal, State, and local laws can still be protected by the Emerson Act as long as all of the Act’s reconditioning procedures are followed, which include:

  • Donor informing non-profit of the nonconforming nature of the product

  • Non-profit agreeing to recondition the item so that it is compliant; and

  • Non-profit knowing the standards for reconditioning the item.

Qualifying Transaction


In order for the Act to protect a donor or gleaner from liability, the transaction must be structured so that:

  • The donor donates to a non-profit organization.

  • The receiving non-profit distributes the food to needy populations.

  • The recipients of the food do not pay for the donated food.

However, if one non-profit donates the food to another non-profit for distribution, the Act allows the first non-profit to charge the distributing non-profit a nominal fee to cover costs.


Donations Must be Made in Good Faith


If a donor donates in good faith and meets all the other criteria, a donor is not liable for any incidents arising from the donated food. However, the Act does not cover gross negligence or intentional misconduct. Gross Negligence involves “voluntary and conscious conduct (including a failure to act) by a person or organization that knew at the time the donation was made that the food was likely to result in harmful health impacts.”


Intentional Misconduct is when a person or organization donates “with knowledge… that the conduct is harmful to the health or well-being of another person.” Food that someone knows is likely to be harmful or dangerous should NOT BE DONATED. Research has shown a LACK OF COURT CASES addressing liability under the Act, indicating the act is very protective of donors.


Pennsylvania-Specific Laws Addressing Food Donation


In addition to the Bill Emerson Act, which establishes a federal “floor” in terms of protection (States can provide more protection but not less than that provided in the federal law), Pennsylvania’s Donated Food Limited Liability Act protects food (including wildlife game) donors and gleaners, including those not readily marketable due to considerations not affecting its fitness for human consumption including but not limited to appearance, freshness, grade or surplus, against liability as long as:

  • the donor reasonably inspects the food at the time of donation and finds the food fit for human consumption;

  • Any subsequent health or other damages are not the result of gross negligence, intentional misconduct, recklessness or if the donor has, or should have had, actual or constructive knowledge that the food is tainted, contaminated or harmful to the health or well-being of the ultimate recipient. The state statute does not specifically define gross negligence, intentional misconduct or recklessness.

The law also states that the accepting charitable or religious organization shall be exempt from liability if the organization:

  • reasonably inspects the food at the times of donation and distribution and finds it fit for human consumption, reasonably processes, prepares, and distributes any wildlife, and requests local health authorities to inspect the food at regular intervals.

The Judiciary and Judicial Procedure Title of the Pennsylvania Statutes also addresses liability for donated food. The statute states, that a person is not subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or of grocery products donated in good faith to a non-profit organization that will distribute them to needy individuals.


Mirroring the Bill Emerson Act, Pennsylvania releases from liability any person who permits gleaning on property owned or occupied by him/her from injury or death of any individual involved in the collection of the agricultural crop or the gleaned donations unless injury or death is the result of gross negligence, intentional misconduct, or recklessness.


The important takeaway? Federal law and Pennsylvania state law provide liability protection for food donors, the non-profits that distribute donated food, and the gleaners and owners of gleaned property. So donate if you can!

To learn more about 412 Food Rescue and how you can volunteer your time or donate food to help those in need visit their website here. If you have questions about food donation laws or qualifying food shoot us an email at Marlene@Trellispgh.com

JOIN OUR NEWSLETTER!

Get our monthly newsletter, which includes our latest blog posts, upcoming webinars, and other helpful legal info.

©2020 Trellis Legal, LLC. DISCLAIMER: The content of this website is intended to convey general information about Trellis Legal, LLC. Content on this website should not be relied upon as legal advice. The content is also not intended to create an attorney-client relationship or constitute an offer of services. Emails sent to any member of Trellis through this website will not create an attorney-client relationship and will not be considered confidential. All uses of this site except for personal purposes are prohibited.