Bill Emerson Good Samaritan Food Donation Act

Bill 166 Good Samaritan Act 1997

Fighting Food Waste Through the Emerson Act

Bill 166 1997

An Act to protect Persons from Liability in respect of Voluntary Emergency Medical or First Aid Services

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: Definition

1. In this Act,

“health care professional” means a member of a College of a health profession set out in Schedule 1 of the Regulated Health Professions Act, 1991. Protection from liability

2. Despite the rules of common law, a person described in subsection who voluntarily and without reasonable expectation of compensation or reward provides the services described in that subsection is not liable for damages that result from the person’s negligence in acting or failing to act while providing the services, unless it is established that the damages were caused by the gross negligence of the person. Persons covered

Subsection applies to,

a health care professional who provides emergency health care services or first aid assistance to a person who is ill, injured or unconscious as a result of an accident or other emergency, if the health care professional does not provide the services or assistance at a hospital or other place having appropriate health care facilities and equipment for that purpose and

3. This Act comes into force on the day it receives Royal Assent.Short title

4. The short title of this Act is the Good Samaritan Act, 1997.

Recommendations For Strengthening Federal Liability Protection Policy

The broad base of liability protection provided by the Emerson Act was intended to encourage food donations, yet donors are often unaware of it. Further, several provisions in the Act could be broadened to better align with the current food recovery landscape. Clarifying the Emerson Acts coverage and expanding its protections, as described below, can boost more food donations. Most of these suggestions, put forth by Natural Resources Defense Council and the Harvard Law School Food Law and Policy Clinic, would require Congressional action to modify the Acts language. However, a federal agency can take action immediately to clarify the Emerson Act by providing interpretive guidance.

Congress should require USDA to publish regulations interpreting the Emerson Act, as well as raising awareness among businesses of its coverage.

Congress should broaden the language of the Emerson Act to protect nonprofit organizations that sell food to end recipients at a reduced price and the donors that donate to these nonprofits.

Congress should modify the language of the Emerson Act to include donations made by licensed food service establishments, such as restaurants and retailers, directly to individuals.

For more details about these three recommendations, download this fact sheet from from Harvard Food Law and Policy Clinic and NRDC.

Legal Fact Sheet: The Bill Emerson Good Samaritan Food Donation Act

Businesses and nonprofits that provide or receive donated food are generally well-protected by laws designed to provide immunity from liability related to food donations. The Bill Emerson Good Samaritan Food Donation Act provides a federal baseline of protection for food donors.i The Emerson Act covers individuals, businesses, nonprofit organizations, the officers of businesses and nonprofit organizations, and gleaners individuals that harvest donated agricultural crops for a nonprofit organization that distributes the food to the needy.ii

The Emerson Act protections apply so long as the following criteria are met:

Donation Recipient: The donor must donate to a nonprofit organization that distributes the donated food to needy populations.iii Direct donations from the donor to needy individuals are not protected by the Act.iv

Good Faith: The donations must be made in good faith.v

Qualifying Foods: The donor must donate qualifying foods, unless specific reconditioning steps have been taken.vi Qualifying foods are those that meet all quality and labeling standards imposed by Federal, State, and local laws and regulations, even if they are not readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions.vii State and local quality and labeling laws vary, and donors should be aware of requirements specific to their state or locality since the Emerson Act does not protect donations that are not in compliance with those laws.viii

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Table : Who Is Covered Under The Good Samaritan Act For Food Donations

Entity
The acts definition of person expressly covers donations by caterers.
Food trucks	Donations by a food truck would be covered under the broad definition of person, which includes corporations, partnerships, organizations, and associations.
School food authorities and institutions of higher education	Yes, these entities are expressly included in the definition of qualified direct donors in the Emergency Food Assistance Act of 1983, as amended by the 2018 Farm Bill.
Food banks	The act expressly covers donations by nonprofit food distributors.
Kitchens that create meals from donated food and then sell the meals at extremely low prices in underserved neighborhoods	No, for a donation to be covered by the act, the ultimate recipients of the food or grocery items must not be required to give anything of value.

All fifty states and the District of Columbia have additional food donation statues that limit food donors liabilitythese currently vary widely, such as by who , and what foods and food products are covered. The Department of Justice Office of Legal Counsel has interpreted the Act as preempting state laws that provide less liability protection to donors. In simple language, this means that under the DOJs interpretation, state laws may provide greater protection against liability, but not less. The Good Samaritan Act serves as a floor or minimum bar for states food donation statutes.

A Closer Look At The Bill Emerson Act

The Legal Guide to the Bill Emerson Good Samaritan Food Donation Act ...

The Bill Emerson Good Samaritan Food Donation Act partially preempts state liability laws by creating a uniform minimum liability protection for certain parties participating in particular activities related to food recovery and food distribution to the needy.

Preemption

Facially, the Bill Emerson Act conflicts with most state laws concerning food donation and the liability of donors. The general rule for a conflict between state and federal law is that federal law preempts state law. 112 Preemption can be express or implied, full or partial. Express preemption occurs when the federal law states that Congress intends for the law to preempt state law. The Bill Emerson Act is silent on the matter of preemption. 113 But because the legislative history clearly manifests Congressional intent for the Act to supersede conflicting state and local law, the Bill Emerson Act is an example of implied preemption. 114 During floor debate, numerous congressional representatives expressly stated that they intended for the Bill Emerson Act to establish a single national liability standard for the good-faith donation of food and grocery products 115 and believed that doing so would encourage and enable restaurants, grocers, and other donors to help feed the hungry. 116 One major benefit of the Bill Emerson Acts partial preemption is that there is now a uniform liability standard that applies nationwide.

Exemption of Liability for Damages

Covered Activities

Gleaning and Crop Insurance

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The Food Waste Problem

America wastes a lot of food. Waste occurs at all levels of the U.S. food system in fields, commercial kitchens, manufacturing plants, markets, schools, and restaurants. 1 In 1996, Congress estimated that the U.S. thr away 20 percent of the food it produce each year. 2 In 1997, EPA and USDA jointly published a document which found that ach year about 27% of Americas food gets thrown out, with more than 300 pounds of food per person ending up in the waste stream. 3 This equates to approximately 96 billion pounds of food a year. 4 Presently, there is no single agreed upon percentage of food waste numbers range from 29 percent 5 to 40 percent, 6 depending on the study. Unfortunately, all studies show that the percentage of food wasted has continued to grow rapidly. In fact, one study concludes that the per capita food waste in the U.S. has increased fifty percent since 1974. 7

If the percentage of food wasted can increase through our actions, then it can also decrease through our actions. But based on the examples of where food waste is occurring at each level, it would be unrealistic, impractical, and prohibitively expensive to strive for a zero-waste food system. However, if we recovered just five percent of the food we wasted we could feed an additional four million Americans every day. 19

Cost of Food Waste

Environmental Impact of Food Waste

United States Legal Liability Issues

The Federal Bill Emerson Good Samaritan Food Donation Act protects the donor and the recipient agency against liability, excepting only gross negligence and/or intentional misconduct. In addition, each state has passed Good Samaritan Laws that provide liability protection to good faith donors. Each of the Harvest Programs we coordinate have established procedures to ensure that safe food handling and storage is built into their donation program.

Federal Law: The Bill Emerson Good Samaritan Food Donation Act

In 1996, President Clinton signed into law The Bill Emerson Good Samaritan Food Donation Act.

Why the Emerson Act is important

Each year, 14 billion pounds of food are sent to landfills. Meanwhile, nearly 30 million Americans, including 12 million children, are at risk of hunger. Potential donors most often cite fear of liability as the reason they refuse to donate to feeding programs. Before passage of the national law, all 50 states and the District of Columbia had adopted laws protecting donors. Yet, differences in language and applicability between states often discouraged national and regional companies from donating. With the national law in place, regional and national donors have the uniform language that protects them from civil and criminal liability.

What does the law do?

Who is protected?

What sort of food is protected?

How can I get a copy of the law?

The text of the Emerson Good Samaritan Food Donation Act can be viewed here.

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Bill 98 Good Samaritan Act 2000

persons from liability in respect

of voluntary emergency medical

or first aid services

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definition

1. In this Act, “

health care professional” means a member of a College of a health profession set out in Schedule 1 to the Regulated Health Professions Act, 1991.

Protection from liability

Persons covered

Subsection applies to,

Reimbursement of expenses

Reasonable reimbursement that a person receives for expenses that the person reasonably incurs in providing the services described in subsection shall be deemed not to be compensation or reward for the purpose of subsection .

The Bill Emerson Good Samaritan Food Donation Act

Jim Larson Food Donation Connection Food Waste

Congress identified and understood potential donors concerns over liability for donating items and saw that these legitimate concerns inhibited potential donation. 82 In 1996, Congress made a significant effort to remove liability-related barriers to food recovery and donation efforts by passing the Bill Emerson Act, which aims to absolve donors of potential civil and criminal liability for injuries resulting from the use of the donated item, except in cases of gross negligence or intentional misconduct. 83 The Bill Emerson Act addresses both the liability issue and eliminates the difficulty of complying with 51 different liability schemes. The Act establish a uniform national law to protect organizations and individuals when they donate goods in good faith 84 for the purpose of encourag and enabl restaurants, grocers, and other donors to feed the hungry. 85

History of the Act

Legislative Intent of the Bill Emerson Act

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The Federal Bill Emerson Good Samaritan Food Donation Act

On October 1, 1996, President Clinton signed this act to encourage donation of food and grocery products to non-profit organizations for distribution to individuals in need. This law:

Protects you from liability when you donate to a non-profit organization
Protects you from civil and criminal liability should the product donated in good faith later cause harm to the recipient
Standardizes donor liability exposure. You or your legal counsel do not need to investigate liability laws in 50 states and
Sets a floor of “gross negligence” or intentional misconduct for persons who donate grocery products. According to the new law, gross negligence is defined as “voluntary and conscious conduct by a person with knowledge that the conductis likely to be harmful to the health or well-being of another person.”

The text of the bill itself follows:

The Bill Emerson Food Donation Act

One Hundred Fourth Congress of the United States of America

At the Second Session

Begun and held at the City of Washington on Wednesday, the third day of January, one thousand nine hundred and ninety-six.

Section 1 Conversion To Permanent Law Of Model Good Samaritan Food Donation Act And Transfer Of That Act To Child Nutrition Act Of 1966

CONVERSION TO PERMANENT LAW

Title IV of the National and Community Service Act of 1990 is amended

in section 402

in the section heading, by striking “model´´ and inserting “Bill Emerson´´

in subsection , by striking “Good Samaritan´´ and inserting “Bill Emerson Good Samaritan´´

in subsection , to read as follows:

“ GROSS NEGLIGENCE

“The term “gross negligence´´ means voluntary and conscious conduct 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.’

“ LIABILITY FOR DAMAGES FROM DONATED FOOD AND GROCERY PRODUCTS

“ 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 nonprofit organization for ultimate distribution to needy individuals.

“ LIABILITY OF NONPROFIT 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 nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals.

TRANSFER TO CHILD NUTRITION ACT OF 1966

Good Samaritan Act Provides Liability Protection For Food Donations

Food donations to help those in need have been an important part of Americas safety net during the challenges posed by COVID-19. Did you know that the Bill Emerson Good Samaritan Food Donation Act of 1996 provides limited liability protection for people who make good faith donations of food and grocery products to nonprofits that feed the hungry? The act also provides limited liability protection, both civil and criminal, for those who distribute food and groceries, such as food banks.

If you have not heard about this act, you are not alone. This lack of awareness of the Good Samaritan Act prompted Congress in the 2018 Farm Bill to call for USDA to raise awareness of the liability protection afforded by the act. As USDAs Food Loss and Waste Liaison, I am leading outreach efforts to let businesses involved with food donations from farm-to-fork know about this limited liability protection.

In order to receive protection under the act, a person or gleaner must donate in good faithapparently wholesome food or apparently fit grocery products to a nonprofit organization for ultimate distribution to needy individuals. It does not cover direct donations to needy individuals or families. The act also provides protection against civil and criminal liability to the nonprofit organizations that receive such donated items in good faith.

So, what does this really mean? Lets take one bite at a time.

Appendix A The Bill Emerson Good Samaritan Food Donation Act

How to Donate Food from Events Without Liability

Effective: October 1, 1996

42 U.S.C.A. § 1791

Bill Emerson Good Samaritan Food Donation Act 194

Short title

This section may be cited as the Bill Emerson Good Samaritan Food Donation Act.

Definitions

As used in this section:

Liability for damages from donated food and grocery products

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 nonprofit organization for ultimate distribution to needy individuals.

Liability of nonprofit 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 nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals.

Exception

Paragraphs and 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.

Collection or gleaning of donations

Partial compliance

Construction

, , Oct. 1, 1996, 110 Stat. 3011, 3012.)

42 U.S.C.A. § 1791, 42 USCA § 1791

Current through P.L. 113-12 approved 6-3-13