Food Donation Tax Credits For Farmers
Canadians who donate food to a charity may be able to receive a donation tax credit for the retail value of the items, although few of those who make such in-kind donations seek a tax receipt. And they cannot receive a tax receipt for donations they make directly to needy families or to organizations that are not registered charities.
Food donations by farmers are treated differently. Four provinces provide tax credits for farmers who donate to food banks or community food programs. Typically, these programs provide farmers with a non-refundable tax credit of 25% of the wholesale value of the donated product. Food Banks Canada points out that this means every dollar of tax revenue foregone will result in seven dollars worth of food going to food banks.
One limitation of these programs is that they typically only provide a credit to the producer of the food. Restaurants, retailers and wholesalers, for example, cannot claim these credits. A food donation tax credit program in the USA was expanded in 2015 to apply to donations by all types of businesses, provided they donate food to a charity that uses it for the care of the ill, needy, or infants.
Miller Thomson lawyers have experience advising charities and not-for-profits on all areas of law the firm also acts for numerous clients in the food and agriculture sector. Contact Miller Thomson for advice and assistance in any of these areas.
Bill 166 Good Samaritan Act 1997
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.
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
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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.
A Closer Look At The Bill Emerson 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.
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
Gleaning and Crop Insurance
Also Check: All Faith Food Bank Sarasota Florida
Food Donation Laws In Canada
At this time of year, many charities ask for donations that can be provided to needy families in the form of Christmas hampers. Other charities are preparing to serve holiday meals to the poor and homeless. Many offices and apartment buildings encourage people to put food bank donations under a Christmas tree. What these charities and donors may not realize is that most Canadian provinces have passed special laws to encourage food donations. Some of these laws provide food donors with protection from lawsuits, while others offer special tax incentives for farmers who donate food.
Bill Emerson Good Samaritan Food Donation Act
Originally passed as public law in 1996, the Bill Emerson Good Samaritan Food Donation Act contains the following.
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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.
Appendix A The Bill Emerson Good Samaritan Food Donation Act
Effective: October 1, 1996
42 U.S.C.A. § 1791
Bill Emerson Good Samaritan Food Donation Act 194
This section may be cited as the Bill Emerson Good Samaritan Food Donation Act.
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.
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
, , 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
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Why Do Businesses Throw Away Excess Food
Every day businesses, families, or anyone could be wasting food for a variety of reasons. In the case of grocery stores, the issues stem from the high volume of deliveries that most stores have to take in and make room for reports Insider. There is not enough room in the store for all of the available products. Some things have to go. Even unexpired foods are disposed of if space needs to be made for incoming shipments.
The same Insiderarticle finds that although some businesses and individuals alike may have thought about donating their leftovers, they are concerned about liability when they give food away for free. Plus, many believe that they can be sued if the food or beverage that they provide ends up getting someone sick. Even if it was previously determined that the food was safe to consume.
Table : Who Is Covered Under The Good Samaritan Act For Food Donations
The acts definition of person expressly covers donations by caterers.
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.
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.
Read more USDA blogs on the topic of food waste.
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Donate Food Without Fear With Good Samaritan Law
The federal Good Samaritan law protects people and businesses who donate food.
Around 53 million Americans sought assistance from food banks to feed their households in 2021 according to Feeding America. Yet we throw away tons of good food. Its a logistical problem that can be helped by encouraging people to donate surplus food rather than toss it in landfills.
Liability is a major concern for many potential food donors. And people consuming donated food need to be protected and know that what they are eating is safe. Empowering individuals and businesses to donate food is what the federal Good Samaritan Law of 1996 is designed to do.
It can be confusing for many of us to know which foods are ok to donate and under what circumstances. This article aims to help you better understand the laws designed to protect food donors and the public consuming that food.
Oranges in a dumpster at a farm.
How Much Food Does America Waste
Today in the U.S. around 40% of the nations food supply is wasted according to the U.S. Food and Drug Association. We waste more food than any other country in the worldnearly 80 billion pounds every year reports Recycle Track Systems.
That equates to around 219 pounds of food waste per person in the U.S.
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Law Encourages People To Donate Food
The law was signed to encourage businesses and individuals alike to donate their excess food. With overstocking and excess shipments of food, the opportunity is there for businesses and consumers alike to make sure that all extra food does not go to waste.
In addition, the Bill Emerson Act also sets a standard of how to give when able and lessens the worry of any potential donors.
All fifty states have additional food donation statutes that limit food donors liability. These laws currently vary widely, such as by who , and what foods and food products receive coverage. The Department of Justice Office of Legal Counsel has interpreted the Act as preempting state laws that provide less liability protection to donors, continues Buzby, of the USDA.
Moreover, its important to remember some of the key terms that tie to the law to fully comprehend its extent. For example, food, donate, gleaner, and grocery product all have their own definitions to help guide any potential donors to take action comfortably.
The Bill Emerson Good Samaritan Food Donation Act
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
Recommended Reading: Northern Il Food Bank Geneva
Organizations Protected From Civil / Criminal Liability When Donating Food
- Non-Profit Feeding Programs
Included in this act are food and grocery products that meet all federal, state and local regulations and laws for quality and labeling standards despite appearance, age, freshness, grade, size, surplus or other conditions that may make the products not readily marketable.
A copy of the Bill Emerson Good Samaritan Food Donation Act can be seen at the U.S. Government Printing Office here.
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