Posted by Jean Buzby, USDA Food Loss and Waste Liaison in Food and Nutrition Health and Safety
Aug 22, 2022
Food donations to help those in need have been an important part of America’s safety net during the challenges posed by COVID-19. Did you know that the Bill Emerson Good Samaritan Food Donation Act of 1996 (PDF, 207 KB) (42 U.S. Code § 1791) 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 (Section 12504 of the Agriculture Improvement Act of 2018) to call for USDA to raise awareness of the liability protection afforded by the act. As USDA’s 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 faith apparently 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? Let’s take one bite at a time.
- Here, 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 nonprofit 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. See table 1 for application of the act by type of entity.
- The act covers donations made and received in “good faith,” but it does not define “good faith.”
- 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.
- The term “apparently fit grocery product” means a grocery product that meets all quality and labeling standards 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.
The act also extends liability protections to donors of food and grocery products who do not meet all quality and labeling standards if the donor informs the nonprofit organization that receives the items, the nonprofit organization agrees to recondition the items to meet all quality and labeling standards, and the nonprofit organization is knowledgeable of the standards to do so properly.
Table 1: Who is covered under the Good Samaritan Act for food donations?
Donations by backyard gardeners would be covered under the broad definition of “person,” which includes individuals.
(Video) "Bill Emerson Good Samaritan Act and Other Financial Benefits of Food Donation" Joseph Beckmann
The act expressly covers farmers.
The act expressly covers gleaners.
Restaurants, retail grocers and manufacturers
The act expressly covers donations by restaurants, retail grocers and manufacturers. Donations by a food service company also would be covered under the broad definition of “person,” which includes corporations, partnerships, organizations, and associations.
The act’s 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.
(Video) Food Liability Laws Could Donated Food Get Your Nonprofit Sued 0 0
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 donor’s liability—these currently vary widely, such as by who (i.e., donors, nonprofit organizations), and what foods and food products are covered. The Department of Justice (DOJ) 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 DOJ’s 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.
For more information, see individual state’s websites and USDA’s Food Loss and Waste web page on donating food, which includes links to a number of organizations which offer legal guidance on food recovery and the Bill Emerson Good Samaritan Act.
The information presented is not a guidance document and does not constitute legal advice or create an attorney-client relationship.
Read more USDA blogs on the topic of food waste.
 Preemptive Effect of the Bill Emerson Good Samaritan Food Donation Act, 21 Op. O.L.C. 55 (March 10, 1997), available at www.justice.gov/sites/default/files/olc/opinions/1997/03/31/op-olc-v021-p0055_0.pdf (PDF, 133 KB).
[i] The protection under the act does not apply to acts or omissions constituting gross negligence or intentional misconduct.
Category/Topic: Food and Nutrition Health and Safety
Tags: Food Waste food loss
Write a Response
May 09, 2021
This is a great piece of information. To clarify, however, both the food donator (restaurant, grocery store, etc.) and the distributor (non-profit, food bank, etc.) are both covered under this law when the food bank or non-profit distributes to either another institution (say a school or shelter) and directly to an individual (homeless or infirm persons). Correct?
Mar 30, 2022
What about expired food? To What extent is food not suitable for pantry's to donate? Like cereal that is 2-3 years old? or MRE?
Tana Z Stellato
May 19, 2022
How can I get involved with an outreach for people in my industry as conference and convention planners to insist that hotels and convention centers allow unused food product as a result of overordering at our programs, be donated to distribution centers for the needy? In most cases when we request this of the hotel or convention center, they respond that they are not permitted to do so because of liabilities. I attempt to educate them about the Good Samaritan Act but am generally rejected. Please advise as to how I can begin an awareness campaign.
May 24, 2022
@Tana Z Stellato - thank you for your comment. Below are some resources and information that you might find helpful.
Businesses that wish to donate food have protections under the Bill Emerson Good Samaritan Food Donation Act of 1996 (PDF, 207 KB). The Act removes liability for “persons and gleaners” who make good faith donations to nonprofits that feed the hungry. Here, the term “person” includes farmers, grocers, wholesalers, hotels, manufacturers, restaurants, caterers, and more. Please visit 42 U.S. Code § 1791 for more information.
For more information, see:
Calling all food sector businesses: Donate excess food with the Bill Emerson Good Samaritan Food Donation Act (PDF, 123 KB) | Spanish language version (PDF, 213 KB)
USDA’s Frequently Asked Questions about the Bill Emerson Good Samaritan Food Donation Act (PDF, 241 KB)
Jun 07, 2022
Does this also include medications that are donated (ex. allergy medication)?
In every part of Canada, the law provides protections for companies and individuals who donate food rather than throwing it away. The laws are worded in various ways, but they all provide food donors with a strong defence if a consumer sues because of illness caused by the donated food.
Good Samaritan laws take their name from a parable found in the Bible, attributed to Jesus, commonly referred to as the Parable of the Good Samaritan which is contained in Luke 10:29–37.
An eligible person that donates agricultural products to eligible community food programs in Ontario, including food banks, may be able to claim a tax credit, in addition to the charitable donation tax credit.
- Permission of ill/injured person when possible.
- Care given in appropriate (non-reckless) manner.
- Person covered by good samaritan laws was NOT the one who caused an accident.
- Care was being given because it was an emergency situation and trained help had yet to arrive.
Typically, Good Samaritan laws provide immunity from civil damages for personal injuries, even including death, that result from ordinary negligence. They do not, for the most part, protect against allegations of gross negligence.
What is Good Samaritan Law? The Good Samaritan Law allows a person, without expectation of payment or reward and without any duty of care or special relationship, voluntarily come forward to administer immediate assistance or emergency care to a person injured in an accident, or crash, or emergency medical condition.
Since their Biblical roots, Good Samaritan laws have traveled the world, and are commonly used in several different countries, America included. California's version of the law was first passed in 2009 and was designed to protect both medical and nonmedical personnel trying to help others in times of crisis.
The truth is that Good Samaritan laws do exist in all 50 states, but they are not what the writers of Seinfeld portrayed them as. Good Samaritan laws do not compel a person to take action for fear of legal recourse, but rather they protect them if, in the event of rendering aid, they accidentally harm someone.
All 50 states and the District of Columbia have a good Samaritan law, in addition to Federal laws for specific circumstances. Many good Samaritan laws were initially written to protect physicians from liability when rendering care outside their usual clinical setting.
This parable is unique to Luke's Gospel and reflects Luke's stress on Jesus' attitude to the marginalized, here, the foreigner. The parable is triggered by a lawyer trying to catch Jesus out by testing his ability to interpret the Jewish Scriptures and solve the human puzzle of how to receive 'eternal life'.