Today, Representatives Marcia L. Fudge (D-OH), Dan Newhouse (R-WA), Chellie Pingree (D-ME) and James P. McGovern (D-MA) introduced legislation intended to boost food donations across the United States. The Harvard Law School Food Law and Policy Clinic (FLPC) enthusiastically supports The Food Donation Act of 2017 (H.R. 952), which addresses key policy changes recommended by FLPC and the Natural Resources Defense Council.
The Food Donation Act of 2017 enhances the coverage of the Bill Emerson Good Samaritan Food Donation Act (Emerson Act), which was passed by Congress in 1996 and promotes food donation by providing civil and criminal liability protection to food donors and food recovery organizations. The Emerson Act provides a broad base of liability protection that was intended to encourage food donations, yet donors are often unaware of the Act’s protections. Many food manufacturers, retailers, and restaurants still cite fear of liability as a primary deterrent to donating food. The Food Donation Act of 2017 will help to clarify some of the ambiguous terms in the Emerson Act and promote awareness of the Act by delegating authority over the Emerson Act to the U.S. Department of Agriculture (USDA) and directing the USDA to provide guidance and promote the Emerson Act.
Further, the proposed legislation would extend liability protection in several ways that support modern food donation. For example, it would extend liability protection to donations sold at a reduced price to recipients and to certain direct donations given to those in need, which will increase efficiency, reduce costs, and enable timely use of perishable food. Organizations that sell foods at a reduced rate, like social supermarkets, can fill a need for food insecure individuals who, for various reasons, are not willing or able to qualify for government assistance or use a food pantry or soup kitchen. Direct donation allows individuals in need to pick up food from more accessible locations right at the source, such as local restaurants and grocery stores. Foodservice establishments already have to comply with food safety requirements like training and inspections, which ensures that they have the food safety knowledge to make direct donations safely.
The legislation would also reduce several barriers to food donation. For example, it would eliminate labeling requirements that are not necessary for safety and clarify that donations of past-date food are protected. Often food goes to waste because it is accidentally mislabeled or past its “sell by” or “best by” date. Under the Emerson Act, donated food must meet all labeling requirements to receive protection. At the federal level, such labeling standards include name of the food, manufacturer’s address, net quantity of contents, and an ingredient list (including allergen information); however, compliance with some of these labels are not necessary to ensure that donated food is safe. For example, the ingredient list is important for safety but the net weight is not. This bill would only require donated food to bear labels that are related to safety. With regard to past date food, date labels on food are generally indicators of peak freshness; yet, many consumers, potential food donors, and state and local governments mistakenly interpret these labels as indicators of safety. This Act extends liability protection to explicitly cover such foods, thereby preventing unnecessary waste and encouraging the donation of wholesome foods that can feed families in need.
By making small changes to the Emerson Act, this legislation can support big increases on the ground in terms of wholesome food donations. Approximately 40 percent of the food produced in the U.S. goes uneaten, resulting in 63 million tons of wasted food each year. Although much of this excess food is healthy and safe to eat, a significant amount ends up in landfills, instead of on the plates of those in need. Food donation provides a critical link between businesses and organizations with wholesome, surplus foods and the 42 million Americans, including 13 million children, who are food insecure.
Representatives Marcia L. Fudge (D-OH), Dan Newhouse (R-WA), Chellie Pingree (D-ME) and James P. McGovern (D-MA) legislation offers the chance to both increase food security and reduce the waste of wholesome foods. FLPC is pleased to support this bill, which will clarify the Emerson Act’s coverage, expand its protection, and eliminate burdensome barriers in order to boost food donations.
Follow the progress of the Food Donation Act of 2017 (H.R. 952).
Food Law & Policy, Commentary
A grounding legal education in the Food Law and Policy Clinic
May 18, 2023