(Text of Emerson Good Samaritan Food Donation Act)

PUBLIC LAW 104-210

An Act

To encourage the donation of food and grocery products to non-profit organizations for distribution to needy individuals by giving the model Good Samaritan Food Donation Act the full force and effect of law.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.

SECTION 1.

CONVERSION TO PERMANENT LAW MODEL GOOD SAMARTAN FOOD DONATION ACT AND TRANSFER OF THAT ACT TO CHILD NUTRITION ACT OF 1966.

(a) Conversion to Permanent Law. - Title IV of the National and Community Service Act of 1990 is amended -

(1) By striking the title heading and sections 401 and 403 (42 U.S.C. 12671 and 12673) ; and

(2) In section 402 (42 U.S.C. 12672)-

(A) In the section heading by striking "model" and inserting "Bill Emerson";

(B) In subsection heading (a) by striking "Good Samaritan" and inserting "Bill Emerson Good Samaritan";

(C) In subsection (b)(7) to read as follows:

"(7) Gross negligence. - The term "gross negligence" means voluntary and conscious conduct (including a failure to act) by a person who, at the time of the conduct, knew that the conduct was likely to be harmful to the health or well-being of another person".

(D) By striking subsection(c) and inserting the following:

(c) Liability for Damages From Donated Food and Grocery Products. -

(1) Liability of person or gleaner. - A person or gleaner 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 that the person or gleaner donates in good faith to a non-profit organization for ultimate distribution to needy individuals.

(2) Liability of non-profit organization. - A nonprofit organization 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 that the non-profit organization received as a donation in good faith from a person for ultimate distribution to needy individuals.

(3) Exception. - Paragraphs (1) and (2) shall not apply to an injury to or death of an ultimate user or recipient of the food or grocery product that results from an act or omission of the person, gleaner, or nonprofit organization as applicable, constituting gross negligence or intentional misconduct, and

(E) In subsection (f) by adding at the end the following:

"Nothing in this section shall be construed to supersede State or local health regulations".

(b) Transfer to Child Nutrition Act of 1996. - Section 402 of the National and Community Service Act of 1990 (42 U.S.C. 12672) (as amended by subsection(a)) -

(1) is transferred from the National and Community Service Act of 1990 to the Child Nutrition Act of 1996;

(2) is redesignated as section 22 of the Child Nutrition Act of 1996; and

(3) is added at the end of such Act.

(c) Conforming Amendment. - The table of contents for the National and Community Service Act of 1990 is amended by striking the items relating to Title IV.

SECTION OF THE NATIONAL AND COMMUNITY SERVICE ACT OF 1990 THAT WAS AMENDED BY THE EMERSON GOOD SAMARITAN FOOD DONATION ACT:

Public Law No. 101-610, 104 Stat 3183 (codified at 42 U.S.C. 12671-12673) (1990)

TITLE IV - FOOD DONATIONS

SEC. 401. SENSE OF CONGRESS CONCERNING ENACTMENT OF GOOD SAMARITAN FOOD DONATION ACT.

(a) IN GENERAL. - It is the sense of Congress that each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States should

(1) encourage the donation of apparently wholesome food and grocery products to non-profit organizations for distribution to needy individuals; and

(2) consider the model Good Samaritan Food Donation Act (provided in section 402) as a means of encouraging the donation of food and grocery products.

(b) DISTRIBUTION OF COPIES. - The Archivist of the United States shall distribute a copy of this title to the Chief Executive Officer of each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.

SEC. 402 MODEL GOOD SAMARITAN FOOD DONATION ACT.

(a) SHORT TITLE. - This section may be cited as the "Good Samaritan Food Donation Act.

(b) DEFINITIONS. - As used in this section:

(1) APPARENTLY FIT GROCERY PRODUCT. - The term "apparently fit grocery product" means a grocery product that meets a quality and labeling standard 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.

(2) APPARENTLY WHOLESOME FOOD. - The term "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.

(3) DONATE. - The term "donate" means to give without requiring anything of monetary value from the recipient, except that the term shall include giving by a non-profit organization to another non-profit organization, notwithstanding that the donor organization has charged a nominal fee to the donee organization, if the ultimate recipient or user is not required anything of monetary value.

(4) FOOD. - The term "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.

(5) GLEANER. - The term "gleaner" means a person who harvests for free distribution to the needy or for donation to a non-profit organization for ultimate distribution to the needy an agricultural crop that has been donated by the owner.

(6) GROCERY PRODUCT. - The term "grocery product" means a non-food grocery product, including a disposable paper or plastic product, household cleaning product, laundry detergent, cleaning product, or miscellaneous household item.

(7) GROSS NEGLIGENCE. -The term "gross negligence" means voluntary and conscious conduct by a person with knowledge (at the time of conduct) that the conduct is likely to be harmful to the health or well being of another person.

(8) INTENTIONAL MISCONDUCT. - The term "intentional misconduct" means conduct by a person with knowledge (at the time of the conduct) that the conduct is harmful to the health or well being of another person.

(9) NON-PROFIT ORGANIZATION. - The term "non-profit organization" means an incorporated or unincorporated entity that -

(A) is operating for religious, charitable, or educational purposes; and

(B) does not provide net earnings to, or operate in any other manner that inures to the benefit of any officer, employee, or shareholder of the entity.

(10) PERSON. - The term "person" means an individual, corporation, partnership, organization, association, or governmental entity, including a retail grocer, wholesaler, hotel, motel, manufacturer, restaurant, caterer, farmer, and non-profit food distributor or hospital. In the case of a corporation, partnership, organization, association, or governmental entity, the term includes an officer, director, partner, deacon, trustee, council member, or other elected or appointed individual responsible for the governance of the entity.

(c) LIABILITY FOR DAMAGES FROM DONATED FOOD AND GROCERY PRODUCTS. - a person or gleaner 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 that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals, except that this paragraph shall not apply to an injury to or death of an ultimate user or recipient of the food or grocery product that results from an act or omission of the donor constituting gross negligence or intentional misconduct.

(d) COLLECTION OR GLEANING OF DONATIONS. - A person who allows the collection or gleaning of donations on property owned or occupied by the person by gleaners, or paid or unpaid representatives of a nonprofit organization, for ultimate distribution to needy individuals shall not be subject to civil or criminal liability that arises due to the injury or death of the gleaner or representative, except that this paragraph shall not apply to an injury or death that results from an act or omission of the person constituting gross negligence or intentional misconduct.

(e) PARTIAL COMPLIANCE. - If some or all of the donated food and grocery products do not meet all quality and labeling standards imposed by Federal, State, and local laws and regulations, the person or gleaner who donates the food and grocery products shall not be subject to civil or criminal liability in accordance with this section if the non-profit organization that receives the donated food or grocery product:

(1) is informed by the donor of the distressed or defective condition of the donated food or grocery products;

(2) agrees to recondition the donated food or grocery products to comply with all the quality and labeling standards prior to distribution; and

(3) is knowledgeable of the standards to properly recondition the donated food or grocery product.

(f) CONSTRUCTION. - This section shall not be construed to create any liability.

SEC. 402. EFFECT OF SECTION. 402

The model Good Samaritan Food Donation Act (provided in section 402) is intended only to serve as a model law for enactment by the States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States. The enactment of section 402 shall have no force or effect in law.

What the Bill Emerson Good Samaritan (one line) Food Donation Act Means?

Prior to passage of H.R. 2428, a review of state laws revealed that legislators took a variety of approaches and used a wide range of statutory language in their efforts to prevent good food from going to waste and to protect companies from liability surrounding their donations. Research of case law from all 50 states and the District of Columbia revealed that none of the state statutes had been tested in court though several state attorneys general had rendered opinions regarding the applicability of food donation statutes.

Because the laws differed in language and definition, determining the protection for a donor with operation in more than one state was difficult. In an effort to encourage donations of leftover food to food-rescue and charitable feeding programs; H.R. 2428 sets uniform definitions and language into law, replacing the state laws.

What sort of food is protected?

The Bill Emerson Good Samaritan Food Donation Act (the "Emerson Act") provides protection for food and grocery products that meet all quality and labeling standards imposed by Federal, State, and local laws and regulations even though the food or products may not be "readily marketable due to appearance, age, freshness, grade, size, surplus or other conditions."

Food may include any "raw, cooked, processed or prepared edible substance, ice, beverage or ingredient" used or intended for use by humans. Grocery product can include non-food products, including "disposable paper or plastic products, household cleaning products, laundry detergent, cleaning products or miscellaneous household items."

There are also provisions to deal with food and products that do not meet quality and labeling requirements of Federal, State and local laws.

Who is protected?

The national legislation protects food donors, including individuals, and non-profit feeding programs who act in good faith. While exceptions are noted for gross negligence, the law states that these groups will 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 ..." (See the attached for definitions)

How does the law improve on the state laws already in existence?

The national legislation replaces all state laws, including those in the District of Columbia, the commonwealth of Puerto Rico and all U.S. territories and possessions. Under the national law, food donors need only seek protection under one law. This should save significant time and resources on the donor's behalf and simplify the entire donation process.

How does the national law compare to state laws?

The Emerson Act has actually existed as a model for state laws since 1990 when it was placed in the National and Community Service Act of 1990, although it did not carry Bill Emerson's name until 1996. While state laws have never been tested in courts, and food-rescue programs have worked hard to prevent even a single case of food-borne illness, the national law is broader and simpler to apply.

Will the legislation be repealed?

The national law has received widespread bi-partisan support in the Senate and the House of Representatives. Both legislative bodies passed the bill by unanimous consent. Furthermore, the Emerson Act moves the Good Samaritan Law from the National and Community Service Act of 1990 to the Childhood Nutrition Act of 1996. No challenges are expected.