Liability

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

A federal law exists which protects donors of food 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 donate[d] in good faith to a nonprofit organization for ultimate distribution to needy individuals” except in cases of “gross negligence or intentional misconduct” [1]. 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.

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

• EPA.gov – Liability Protection and Food Donations
• Food Liability Law Blog – Donate Food Generously and With Immunity
• Food Donation Connection

There is also a Colorado state law pertaining to 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 (see [3]).

References:

[1] Bill Emerson Good Samaritan Food Donation Act. Pub. L. No. 104-210, 110 Stat. 3011 (1996) http://www.gpo.gov/fdsys/pkg/USCODE-2010-title42/html/USCODE-2010-title42-chap13A-sec1791.htm
[2] 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
[3] Preemptive effect of the Bill Emerson Good Samaritan Food Donation Act: Memorandum for James S. Gilliland, General Counsel, Department of Agriculture. March 10, 1997. https://www.justice.gov/sites/default/files/olc/opinions/1997/03/31/op-olc-v021-p0055.pdf