Federal Liability Protection

Many food manufacturers, retailers, and wholesalers cite fear of liability as a primary deterrent to donating food. However, strong federal liability protections exist for businesses that donate or directly distribute food, and nonprofits that receive and distribute donated food. The Bill Emerson Good Samaritan Food Donation Act, originally passed in 1996 and amended by the Food Donation Improvement Act in 2022, provides federal civil and criminal liability protection against federal and state liability claims for food donors and the nonprofit organizations that receive and distribute food donations to those in need, as long as certain requirements are met.

Donors and distributors must meet the following four requirements to receive protection under the Act:

1) Qualifying foods and grocery products: The donor must donate “apparently wholesome food” or an “apparently fit grocery product” that meets food safety standards imposed by Federal, State, and local laws and regulations, even if they contain flaws that makes them unmarketable (for example, food products that contain aesthetic flaws or are the wrong size or grade).

Exception for Reconditioned Items: Even if a food or grocery product does not meet all applicable standards, donors can still be protected by the Emerson Act if the donor follows all the Act’s reconditioning procedures, which include: 

• The donor informs the nonprofit of the nonconforming nature of the product; 
• The nonprofit agrees to recondition the item so that it is compliant; and 
• The nonprofit knows the standards for reconditioning the item.

2) Direct Donations or Donations Through Non-Profits: Unless the donor is a “qualified direct donor,” all donations must be made through a nonprofit organization, such as a food bank or food recovery organization, to needy individuals. A “qualified direct donor” may donate through a nonprofit organization or directly to needy individuals. Organizations that qualify as direct donors are retail grocers; wholesalers; agricultural producers, processors, and distributors; restaurants, caterers, school food authorities, and higher educational institutions.

3) Free or Good Samaritan Reduced Price: When donors donate food or grocery products to nonprofit organizations, such as food banks and other food recovery organizations, liability protections will apply where the nonprofit offers the food to end recipients for free or at a “Good Samaritan Reduced Price,” which is a price not greater than the cost of handling and distributing the food. When a “qualified direct donor” donates directly to individuals, liability protections will apply only if donations are made free of charge.

4) Good Faith: Donations must be made and distributed in “good faith.” While “good faith” is not explicitly defined in the Act, it will likely be satisfied provided all other elements of the Act are met, meaning that the donation meets the requirements for “apparently fit grocery product” or “apparently wholesome food.” Further, protection is not available for donations made or distributed with “gross negligence” or “intentional misconduct.”

• Gross Negligence involves “voluntary and conscious conduct (including a failure to act)” by a person or organization that knew when the donation was made that the donated food was likely to have harmful health impacts.
• Intentional Misconduct is when a person or organization donates “with knowledge . . . that the conduct is harmful to the health or well-being of another person.”

In other words, one should not donate or facilitate the distribution of donated food that one knows is likely to be harmful or dangerous. The Emerson Act gives little guidance on what activities qualify as gross negligence or intentional misconduct.

So long as these criteria are met, the Emerson Act is quite protective of donors and nonprofit organizations. In addition to federal liability protections, states are free to enact state level liability protections that are more protective of food donors than the federal Emerson Act. Explore state liability protection laws.

For a printable version and citations of these guidelines, download this fact sheet from Harvard Law School Food Law and Policy Clinic.