Good news for donating food from events! Donating food in good faith to nonprofits has had liability protection in the U.S. for 25+ years, but Congress recently passed new legislation to expand those protections even further.
The food donation law already on the books is the Bill Emerson Good Samaritan Food Donation Act, which has been in effect since 1996. (Feeding America has a great summary and the full text of the prior version.) In January 2023, a bill amending this act was passed into law. Here are the significant changes:
First, qualified direct donors can donate food directly to individuals in need.
The previous version of the law provided liability protection only when donors donated food to a nonprofit organization. The new update provides more options and flexibility to qualified donors.
It’s important to note that only certain entities qualify for liability protection when donating directly to individuals. The covered entities are retail grocers, wholesalers, agricultural producers, agricultural processors, agricultural distributors, restaurants, caterers, school food authorities, and institutions of higher education.
With this change, qualified donors can give surplus food directly to individuals without having to go through a nonprofit as an intermediary. This update will make it faster and easier for caterers and restaurants to give out surplus food, especially if there are individuals in need in the immediate vicinity of their location.
Second, donors can now charge a “Good Samaritan reduced price” for food and still receive liability protection.
The price must be no greater than the cost of handling, administering, harvesting, processing, packaging, transporting, and distributing the food or product. This update allows donors to charge nonprofits a fee to help cover the administrative costs related to providing the food donation. I also wonder if this update is somewhat targeted to grocery retailers, who often sell older produce or products approaching their sell-by dates at a discount.
My understanding of the text is that donations directly to individuals in need must still be at “zero cost” to the individual. You can see the full text of the law and the official summary on Congress.gov.
The 2022 FDA Food Code, released in December 2022, also had food donation related updates. It clarified that food that is stored, prepared, packaged, displayed, and labeled according to Food Code safety provisions can be donated.
As a reminder, I’m not a lawyer, so my ability to interpret these laws is limited. I encourage you to consult with your legal counsel to fully understand how this legislation applies to your business. (In those conversations, I also urge you to remind your lawyers that the point of these laws is to encourage food donation, not inhibit it!)
How does your organization handle surplus food from events? Share your donation tips and tricks in the comments!