We are sometimes asked about liability issues surrounding food donations. To thoroughly answer this question, our volunteer legal research team put together a brief (but exhaustive) law review on the topic:

A federal law protects food donors from liability: the Bill Emerson Good Samaritan Food Donation Act. Passed in 1996, this law states that an individual or company shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product donated in good faith to a nonprofit organization for ultimate distribution to needy individuals, except in cases of gross negligence or intentional misconduct [2]. The Bill Emerson Act hasn’t been tested in court yet, i.e., there isn’t relevant case law in any state. However, it is a broadly written federal bill and offers strong protection for good faith donors.

The Bill Emerson Good Samaritan Food Donation Act was amended to include the following [1]:

1. The definition of the term ‘good Samaritan reduced price’

A price that is an amount not greater than the cost of handling, harvesting,
processing, administering, packaging, transporting and distributing the
apparently wholesome food/fit grocery products can be charged to the recipient
or user of the donation

2. The definition of a qualified direct donor

A qualified direct donor includes a retail grocer, wholesaler, agricultural
producer, agricultural processor, agricultural distributor, caterer, restaurant,
school food authority, or institution of higher education

3. A person or gleaner is not subject to civil or criminal liability when donating in good faith
to a nonprofit to be distributed to needy individuals at zero cost or at a good Samaritan
reduced price.

4. A qualified direct donor is not subject to civil or criminal liability when donating in good
faith to a needy individual at zero cost.

5. A nonprofit organization is not subject to civil or criminal liability arising from donations
received in good faith from a person or gleaner for distribution to needy individuals
at zero cost or at a good Samaritan reduced price.

6. The term ‘donate’ was updated to include “the ultimate recipient or user is not required
to give anything of monetary value or is charged a good Samaritan reduced price.

There are several good summaries online about the bill & its implications:

• EPA.gov – Liability Protection and Food Donations
• Food Donation Connection

There is also a Colorado state law on food donation, C.R.S. 13-21-113, which offers more explicit, but narrower protection for food donors [2]. It states:

No farmer, retail food establishment, or processor, distributor, wholesaler, or retailer of food who donates items of food to a nonprofit organization for use or distribution in providing assistance to needy or poor persons nor any nonprofit organization in receipt of such gleaned or donated food who transfers said food to another nonprofit organization for use or distribution in providing assistance to needy or poor persons shall be liable for damages in any civil action or subject to prosecution in any criminal proceeding resulting from the nature, age, condition, or packaging of such donated foods; except that this exemption shall not apply to the willful, wanton, or reckless acts of donors which result in injury to recipients of such donated foods.

It, too, has yet to be tested in court. However, as the Bill Emerson Good Samaritan Food Donation Act offers broader protection from liability, it would preempt the Colorado state law [3].

References:

[1] A bill to amend the Bill Emerson Good Samaritan Food Donation Act to improve the program and for other purposes. 2022. http://www.justice.gov/olc/bressman.htm

[2] Bill Emerson Good Samaritan Food Donation Act (1996) http://www.gpo.gov/fdsys/pkg/USCODE-2010-title42/html/USCODE-2010-title42-chap13A-sec1791.htm

[3] Colorado Revised Statutes/Colorado Revised Statutes/TITLE 13 COURTS AND COURT PROCEDURE/DAMAGES/Damages/ARTICLE 21 DAMAGES/PART 1 GENERAL PROVISIONS/13-21-113. Donation of items of food – exemption from civil and criminal liability. http://www.state.co.us/gov_dir/leg_dir/olls/sl2000/RBTitle13.htm