Liability Protections for Food Donation Help Address Food Insecurity and Food Waste
August 7, 2024
Overview
Food insecurity and food waste are both increasing in the United States, which negatively impacts public health and creates environmental problems. States can work to address both by passing clear, comprehensive laws regarding liability protection for donated foods, and by providing financial incentives for food donation and imposing organic waste requirements.
Food insecurity and food waste are both increasing in the United States, which creates public health and environmental problems. These are antithetical problems, where the number of people with inadequate food is increasing while the waste of consumable food is also increasing. Law and policy incentivizing food donation and reducing the liability related to donating food helps reduce both problems. States can create a double positive impact by passing clear, comprehensive laws regarding liability protection for donated foods, providing financial incentives for food donation, and imposing organic waste requirements.
A 2022 report by the United States Department of Agriculture (USDA) found that 44.2 million people live in households that experience food insecurity, with 7.3 million food-insecure children. The rate of adults living in households that are food insecure has gotten worse since this report, according to the Household Pulse Survey, which shows rates increasing since March 2023. Food insecurity—a limited or uncertain access to adequate food—is linked to negative health outcomes and disparities. It also disproportionately impacts lower-income households, unemployed individuals, and Black and Hispanic households.
Along with food insecurity, food waste and loss is a major problem in the United States, as 30 to 40 percent of food produced is wasted. The amount of food wasted correlates to nearly 130 billion meals annually. And food waste is worsening in the United States, with a 4.8 percent increase from 2016 to 2021. Households and businesses, including restaurants, produce the most amount of waste in the supply chain, so policies encouraging these groups to donate food, rather than throw it away, will reduce the harms of food insecurity and food waste, improving public health and the environment.
Federally, the Bill Emerson Good Samaritan Food Donation Act (Emerson Act) protects food donators from liability for injuries caused by donated food. To incentivize the donation of food, individuals and businesses that donate “apparently wholesome food” are protected from civil or criminal liability. Without the risk of being sued over their donation of food, businesses and individuals are more likely to donate food. The Emerson Act is a helpful tool but has been criticized for falling short of its goals, and the current Congress does not appear interested in improving the law.
In addition to federal law, however, most states have laws that protect those who donate food from state civil and criminal penalties. Many state laws are clearer and more comprehensive than the Emerson Act on describing who gets immunity for what products and under what donation circumstances. Many state laws go further than the Emerson Act in protecting those who donate. States that provide greater liability protection beyond the floor set by the Emerson Act offer more significant incentives to food donation, explicitly removing all liability concerns that serve as barriers to food donation.
Some states, like New Jersey, expand the definition of donated food covered by liability protection to include food that is past its packaged “best-by” date, which is an indicator of when a product will be of best flavor or quality, not the date by which it should be consumed due to food safety concerns. On the other hand, some states, like Utah, define food covered by liability protection as “wholesome food,” which provides much less guidance for would-be donors on what type of food is actually protected. The clearer and more comprehensive the definitions, the more effective the incentive.
Some states are addressing food waste and food donation with tax incentives for those who donate food. California and Maryland both offer some type of credit to farmers for donated crops, and Pennsylvania offers credits to donors approved under their Charitable Food Program. Additionally, to address food waste, some states have organic waste requirements to reduce the environmental impacts of food waste in landfills. Connecticut has a tiered approach that will progressively increase the number of businesses that must send organic waste to composting facilities. Because composting is an expense businesses want to avoid, these laws, coupled with tax incentives and liability protections, may increase food donation as well.
Laws that incentivize donation and protect those who donate will help to address both food insecurity and environmental problems associated with wasted food. Increased food donation could potentially address health equity around food access, as it would provide an avenue for all households to access healthy foods, regardless of their socioeconomic status. More robust and descriptive donation protection laws would hopefully lead to fewer health disparities that disproportionately impact low-income, Black, and Hispanic households.
For more information, see the Network resource: Food Loss and Waste: Snapshot of Food Donation Laws and Other Incentives to Increase Food Security and Reduce Environmental Harm. To view donation laws by state, see this Network 50-State Survey: State Laws Addressing Food Donation.
This article was written by Alex Sadzewicz, J.D., Research Assistant, under the supervision of Kathi Hoke, J.D., Director, Network for Public Health Law, Eastern Region.
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