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Expanded Federal Protection Allows Farmers To Donate Food Directly To People In Need


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Image by Edwin Remsberg

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On January 5, 2023, President Biden signed into law the Food Donation Improvement Act (FDIA). While farmers and gleaners have been protected from civil and criminal liability since 1996 under the Bill Emerson Good Samaritan Food Donation Act (the Emerson Act) when they donate food to nonprofits who then distribute the food to people who are in need, they were not covered if they wanted to donate food to people directly. They also were not covered unless they donated the food for free. In other words, they were not afforded protection under the Emerson Act if they received anything of value in exchange for their donation. Congress passed the FDIA with the goal of expanding food donations across the country while also reducing food waste by providing protection to a wider group of “agricultural producers” who can now donate food directly to people in need, and also providing protection to farmers, gleaners and individuals who can now donate food to nonprofits at zero cost or at cost. Keep reading to learn more.


The Law Protects Good Faith Donations Of Wholesome Food


Under the Emerson Act, as amended by the FDIA, all donations have to be made “in good faith.” “Good faith” is not defined in the law, but the protection under the act does not apply to acts or omissions constituting gross negligence or intentional misconduct. Also, food that is donated has to be “apparently wholesome food.” “Apparently wholesome food” means food that meets all quality and labeling standards imposed by federal, state, and local laws and regulations even though the food may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions. And “food” means “any raw, cooked, processed, or prepared edible substance, ice, beverage, or ingredient used or intended for use in whole or in part for human consumption.”


New Protections For Direct Donations


Until now, the Emerson Act did not provide protection for producers to donate food directly to individuals in need. The FDIA, however, expands the Emerson Act’s liability protections for “qualified direct donors” who donate food directly to individuals or families in need at zero cost for the recipients. “Qualified direct donors” include “retail grocers, wholesalers, agricultural producers, agricultural processors, agricultural distributors, restaurants, caterers, school food authorities, or institutions of higher education.”


New Protections For Donations Made To Nonprofits For Cost


The Emerson Act, as amended by the FDIA, provides protections when a “person” or “gleaner” donates food to a nonprofit organization for distribution to people in need either “at zero cost or at a good Samaritan reduced price.” A “person” includes an “individual” and also a “farmer.” And “a good Samaritan reduced price” is “a price that is an amount not greater than the cost of handling, administering, harvesting, processing, packaging, transporting, and distributing the “apparently wholesome food.” So, farmers and gleaners, which the law defines as “a person who harvests for free distribution to the needy, or for donation to a nonprofit organization for ultimate distribution to the needy, an agricultural crop that has been donated by the owner,” are expressly covered, but so are backyard gardeners because they are “individuals.” And now, donations of food that are made “at a good Samaritan reduced price” are just as protected as those that are made at zero cost.


Other Protected Donations


The Emerson Act, as amended by the FDIA, also provides the same protections for donations of “apparently fit grocery product(s).” “Grocery product(s)” are nonfood grocery products, including disposable paper or plastic products, household cleaning products, laundry detergent, cleaning products, or miscellaneous household items. The term “apparently fit grocery product” means a grocery product that meets all quality and labeling standards imposed by Federal, State, and local laws and regulations even though the product may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions. It also extends liability protections to donors of food and grocery products who do not meet all quality and labeling standards, but only if the donor informs the nonprofit organization that receives the items, the nonprofit organization agrees to recondition the items to meet all quality and labeling standards, and the nonprofit organization is knowledgeable of the standards to do so properly.


State Law Protections


The Emerson Act (and the FDIA) give uniform federal protection to donors who may cross state lines. Of course, state laws may provide greater protection against liability (but not less). All fifty states and the District of Columbia have additional food donation statues that protect food donors, but they vary somewhat on things like who is protected (i.e., donors, nonprofit organizations) and what foods are covered, etc. Information about Maryland’s Food Waste Policies can be found at https://policyfinder.refed.org/maryland/. And more information about the Emerson Act, the FDIA, and other laws designed to encourage food donations, including tax deductions, is available at https://www.usda.gov/foodlossandwaste/donating.

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