Senators Pat Toomey (R-PA) and Richard Blumenthal (D-CT) recently 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 Improvement Act of 2019 (S. 3141), which addresses key policy changes recommended by FLPC.
The Food Donation Improvement Act of 2019 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 Improvement Act of 2019 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 issue regulations clarifying what quality and labeling standards must be met in order for liability protection to apply.
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. Current law only protects food donation if the final recipient receives the food for free. However, nonprofit organizations that sell foods at a greatly 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. The legislation would also extend protection to certain donations given by food businesses directly to those in need, which will increase efficiency, reduce costs, and enable timely use of perishable food. Under current law, food donors are only protected if they give food to a nonprofit organization to distribute it to those in need. Protecting direct donation from food businesses will allow individuals in need to pick up food from more accessible locations right at the source, such as local restaurants, grocery stores, and schools. Food service 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 barriers to food donation by requiring USDA to issue regulations to clarify which quality and labeling standards donated food products must meet in order for liability protection to apply. Often food goes to waste because it is accidentally mislabeled. 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 require USDA to determine which of these labeling requirements must be met by donated products in order for liability protection to extend to donors or distributing organizations.
By making small changes to the Emerson Act, this legislation will 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 37 million Americans, including 6 million children, who are food insecure.
The legislation introduced by Senators Toomey (R-PA) and Blumenthal (D-CT) presents an opportunity 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 Improvement Act of 2019 (S. 3141).