Making the Case to Clarify Safety Procedures for Food Donation

Written by Molly Malavey, student in the Spring 2018 Food Law and Policy Clinic.

Members of FLPC’s food waste team had the exciting opportunity to attend April 2018’s Conference for Food Protection’s (CFP) Biennial Meeting in Richmond, VA, bringing the issue of food donation for the Council’s consideration. CFP is a wholly unique non-profit organization that gives food regulators, industry, academia, consumers, and professional organizations an opportunity to engage in a formal process to provide input into influential food safety guidance, such as the FDA Food Code. The FDA Food Code includes model food safety standards for the food retail and food service industries, and a version of the Food Code has been adopted by all 50 states.

The CFP’s model for deliberating and accepting issues is both fascinating and exceedingly particular. Any interested party can submit an issue—often a specific change to the FDA Food Code—for consideration. At the Council sessions, submitters briefly make their case to the designated Council, and the Council formally deliberates the issue using a process governed by parliamentary rules. The Council has broad discretion to accept, amend, or deny submissions. Once the Councils makes their recommendations, an Assembly of State Delegates votes to either accept the recommendations or to extract issues for deliberation by the CFP Executive Board. When issues are accepted, either as submitted or as amended, the CFP will take actions such as forming a committee to study a topic or sending a letter to FDA recommending a change to the FDA Food Code.

FLPC presented on food safety for food donation in Council I, Laws and Regulations with the recommendation that the FDA Food Code clarify food safety procedures that apply to food establishments when they donate food to food recovery organizations.

Nothing in the current FDA Food Code prevents the donation of food, but restaurants and retailers are often unsure about the specific safety procedures they need to follow when making donations. Since the FDA Food Code, and most state laws, don’t specifically address which food safety laws apply to food donation, potential donors are left wondering what procedures they must follow to donate safely and in compliance with the law. This confusion and lack of clarity causes potential donors to err on the side of caution and decide not to donate at all, contributing to food waste. Model language in the FDA Food Code affirming that food donation is lawful and specifying food safety procedures for food donations would go a long way toward facilitating food recovery, and would ensure that food is donated safely.

Council I, made up of twenty-two representatives from regulatory agencies, industry, academia, and consumer groups, heard our issue on Day 3 of the Conference. Prior to our presentation, we spoke with several Councilmembers who expressed support for the concept of food donation.  Yet we could not predict how our issue would be received by the Council, as our proposal would add an entirely new section on this topic to the FDA Food Code.

The Council’s ultimate resolution was positive.

After a long deliberation at the initial hearing on whether the FDA Food Code is the proper medium for food safety guidance for donations (and FLPC believes it is), the Council tabled our recommendation.

Upon rehearing, the Council determined two things. First, it accepted that language be added to the FDA Food Code to clarify that it does not preclude food donations. Second, it determined that a committee should be created to evaluate existing food safety guidance and recommend specific language to be added to the FDA Food Code at the next CFP meeting in 2020. Overall, this was a big step forward for food recovery at the CFP!

This major step for food recovery was the icing on the cake of a great week at the CFP, which proved to be an exciting event for anyone interested in the food system and policy making. While at first the rigorously-procedural nature of the CFP seemed tedious, I grew to love it. It doesn’t take long to see that Councilmembers deeply care about the exercise, and consistently give patient and respectful consideration to every matter that comes before them. Ultimately, these procedures facilitated interesting conversation, especially given the wide array of industry and regulatory interests and viewpoints. At the end of the day, all opinions were welcome at the table.