September 21, 2015

How the Bill Emerson Act Can Reduce Wasted Food

Debbie Balthazar

Debbie Balthazar

Research Assistant

Johns Hopkins Center for a Livable Future

Sault_Ste_Marie_food_donation_DVIDS1112500Every year 50 million Americans go hungry. At the same time, about 40 percent of the food grown annually in the U.S. never gets eaten, ending up in landfills. So why not just give the wasted food to those who are hungry? That’s easier said than done.

An article from the Los Angeles Times highlights one of the roadblocks. The article illustrates the valiant efforts of Shirley Wei Sher, a member of the Southern California Chinese Lawyers Association (SCCLA), who wanted to end the annual cycle of having to throw away leftovers that could have potentially fed about 100 people. Sher planned to donate leftover food to a local charity, but was refused on the basis of being ‘“concerned about violating the local health code.”’ The refusal centered around the concern that donated food could make the recipients sick. This might be a legitimate concern, were it not for the Bill Emerson Good Samaritan Food Donation Act of 1996, a federal law that shields potential food donors from liability.

So doesn’t this mean that all potential food donors are protected by federal law? Well, not so fast.

According to the Bill Emerson Act, no part of it “shall be construed to supersede state or local health regulations.” In a guide explaining the Act, developed by the University of Arkansas School of Law, we learn that “the Bill Emerson Act only preempts those state or local laws that provide less liability protection” for the food involved in the food recovery process.

The local law in California requires that all donated food meets the local health safety requirements before being served to guests. Charities that are already in charge of preparing thousands of meals for people in need cannot ensure the quality and wholesomeness of the food risk having their kitchens closed if something were to happen.

But if we look at the fine print of the Bill Emerson Act, we see that it protects anyone involved in the food donation process, including the persons who donate food and nonprofit organizations. Nonprofit organizations are taken to mean those that operate for “religious, charitable, or educational purposes.” This means that not only would the SCCLA not be held liable for the food they donate, but neither would the Union Rescue Mission be liable for serving it. The only way for either side to be held liable according to the stipulation of the act would either be from “gross negligence” or “intentional misconduct.”

According to the University Of Arkansas School Of Law’s legal guide to food recovery, no one has ever been held liable for any illness from donated food.

In Maryland, organizations such as Community Food Rescue and Nourish Now ensure the safety and wholesomeness of donated food, acting as go-betweens for food donors and recipients.

Unfortunately, even with these protections and support, food donation is not viable for all businesses. Packaging and shipping food costs money, as does the time-consuming effort of coordinating deliveries. Some companies believe that it would be cheaper just to throw away the food.

As of now the only viable way for food donations to be profitable for potential donors would be through tax incentives, which are currently only available for C corporations. These corporations can receive permanent tax deductions for donating food to nonprofit organizations. Smaller businesses such as restaurants and farms do not have these permanent tax incentives, and can be understandably discouraged from donating if it will be more expensive than discarding.

Recovering wasted food and feeding the hungry would be helped a great deal by two big efforts: educating businesses about the ins and outs of the Bill Emerson Act, and developing permanent tax incentives that would make food recovery and donation indispensable parts of their operations.

Image: Wikimedia Commons.

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