This blog post was written by Tori Oto, a student in the Food Law and Policy Clinic.
Senators Pat Toomey and Richard Blumenthal recently reintroduced legislation that will increase food donations across the country and will reduce waste of edible, wholesome food. The Harvard Law School Food Law & Policy Clinic (FLPC) ardently supports the Food Donation Improvement Act of 2021. The Act implements one of the changes that the Food Law & Policy Clinic recommends as a key way to support increased food donation and reduce senseless food waste.
As the COVID-19 pandemic continues to put strain on the food system, which results in high food prices for consumers, there is ample opportunity to incentivize greater food donation across the supply chain. Americans continue to go hungry, while nearly 40% of food in the United States is thrown away. Much of this food is safe, edible, and fit for consumption, but businesses and food vendors cite liability concerns as a primary obstacle to donating food. The Food Donation Improvement Act of 2021 addresses this obstacle by expanding and clarifying the liability protections for food donors who donate directly to needy individuals and to food recovery organizations that charge a nominal fee to final consumers for donated food.
The Food Donation Improvement Act of 2021 builds off liability protections already in place under the Bill Emerson Good Samaritan Food Donation Act (Emerson Act). The Emerson Act protects food donors who donate apparently wholesome food and grocery products to food recovery organizations like food banks for free distribution to those in need, so long as the donation is made in good faith and without gross negligence or intentional misconduct. The new legislation would extend this liability protection to donors who donate directly to needy individuals. Often food is wasted because it cannot get to people in need in time before it spoils. Food vendors, who already comply with food safety laws and regulations, should be able to provide food directly to community members. Protecting direct donations will reduce donation costs and enable timely consumption of perishable food.
The legislation also extends liability protections to innovative food models, such as social supermarkets, that charge consumers a small fee. Social supermarkets fill a gap in the food donation space by providing extremely reduced-cost food and grocery products to individuals who are unable or unwilling to qualify for government assistance or to use a food pantry or soup kitchen. It is difficult for food recovery organizations to bear the costs of preparing, processing, and transporting food to needy individuals. By charging a small fee to final recipients to cover at least a portion of these operating costs, social supermarkets scale their operations and reach many needy individuals than they would without the fee. Many states already extend liability protection to food donors and food recovery organizations for food offered for free or when the charge is only enough to “to cover the cost of handling such food.” The Food Donation Improvement Act would make this provision true nationally.
Beyond extending liability protections to direct donors and to organizations that charge a nominal fee, the Food Donation Improvement Act of 2021 also requires the USDA to issue regulations to clarify which quality and labeling standards donated food products must meet to receive liability protection. Due to confusion under existing law, completely safe but slightly mislabeled food is thrown out rather than donated to needy individuals. Federal law includes numerous labeling standards, some of which are important for consumer safety, but some of which are not. For example, the ingredient list (which includes allergen information) is important for food safety, but the net weight is not. By issuing regulations clearly stating which labeling requirements donated products must meet to be donated, the USDA will incentivize more food donation.
These small changes to the Emerson Act could translate to large increases in wholesome food donation. The Food Donation Improvement Act of 2021 presents an excellent opportunity to increase food security for Americans while reducing the amount of food that otherwise ends up in a landfill. The Food Law & Policy Clinic now looks to the rest of Congress to pass this important bill.