(Last Updated 03/05/2021)
Date labels are the dates stamped on food items and accompanied by phrases such as “sell by,” “use by,” or “best by.” These dates are generally intended to communicate food quality, not food safety. Nevertheless, they exert a powerful influence on consumers and food vendors, who rely on these labels when deciding whether or not to throw food away. Under current federal law, date labels remain almost entirely unregulated, except for use on infant formula. States have filled this void with a variety of inconsistent date labeling regulations that often fail to reflect the distinction between food safety and food quality.
Currently, 41 states and the District of Columbia require at least some foods to have date labels. These state date label regulations vary widely. Some state regulations require the use of labels only on narrow categories of food, while others are much broader. New Hampshire, for example, requires date labels only on cream and pre-wrapped sandwiches. In contrast, Massachusetts requires date labels on all pre-packaged perishable and semi-perishable food products.
Twenty states and the District of Columbia prohibit or restrict sale or donation of food products once the date has passed, even when such foods are still healthy and safe to consume. These state laws also vary widely. Massachusetts and Oregon allow past-date products to be sold but require them to be clearly labeled as past-date and separated from pre-date products. Montana prohibits milk from being sold or “otherwise offered for public consumption” after the required “sell by” date, which must be 12 days after pasteurization in that state.
This patchwork state regulatory system, as well as the wide array of date labels that appear on products, contributes to confusion among consumers and regulators and ultimately results in the significant waste of safe, wholesome food.
Texas Date Labeling Regulations
25 Tex. Admin. Code § 241.66 (2013).
from the Law
Many potential food donors, including grocers and retailers, cite fear of liability as a primary deterrent to donating food. However, the federal Bill Emerson Good Samaritan Food Donation Act provides a national baseline of civil and criminal liability protection for food donors and recipient nonprofit organizations that receive and distribute food to needy individuals. States cannot make laws that remove or reduce the protection created under the Act, but they are free to enact laws that are the same or even stronger.
All 50 states have state liability protection acts, and several states provide additional liability protection above those offered by the Emerson Act. Examples of state improvements include providing protection even when nonprofit food recovery organizations charge the final recipient; protecting donors that donate directly to the final recipient; reducing unnecessary labeling requirements for liability protection for donated food; and explicitly offering protection when donors donate past-date foods. By going beyond the federal liability protection floor, states encourage food donation and help ensure more food makes it to the tables of those in need.
Texas Liability Protection Regulations
- Statute Citation
- Tex. Civ. Prac. & Rem. Code Ann. § 76.001—004
- Type of Protection
- Civil and criminal
- When protection will not apply
- Gross negligence, recklessness, or intentional misconduct
- Who it protects
- Donor: An individual, corporation, partnership, organization, association, governmental entity, or gleaner
Distributor: Nonprofit/charitable organization
- Standards for Donated Food
- Apparently wholesome (must meet all quality and health standards), but the law protects donations of food not readily marketable due to appearance, age, freshness, grade, size, or surplus
- Protections Apply When End Recipient Pays for the Donated Food
- Food recovery organization must distribute the food for free in order to receive protection; donor is protected even if the food recovery organization charges.
- Protections Apply to Direct Donations
Federal Liability Protection
The Bill Emerson Good Samaritan Food Donation Act provides a strong federal baseline of protection for food donors. It covers individuals, businesses, nonprofit organizations, the officers of businesses and nonprofit organizations, and gleaners. A donor must donate in good faith to a nonprofit organization that distributes the donated food to needy populations, and the food must meet all quality and labeling standards imposed by federal, state and local laws and regulations.
Tax incentives make food donation more cost-effective and economically beneficial. At the federal level, there are two tax deductions for food donations: a general deduction and an enhanced deduction. The enhanced deduction provides a significantly higher financial benefit, allowing businesses to deduct a value for donated food that is almost double the general deduction when the donated food meets certain eligibility criteria. These incentives have been extraordinarily successful in motivating food donation.
Additionally, a growing number of states have passed or considered state-level tax incentives in recent years. Currently, nine states (Arizona, California, Colorado, Iowa, Kentucky, Missouri, Oregon, South Carolina, and Virginia) and the District of Columbia offer such tax incentives. These incentives aim to assist certain businesses that do not benefit sufficiently from the federal tax incentive, such as farmers or other businesses with low profit margins. State tax incentives provide those businesses with a more tailored incentive and a benefit that is often easier to understand and utilize than the federal one.
Tax incentives for food donations are structured differently by state; for example, eight states and Washington DC offer tax credits, while Arizona offers a tax deduction. California and South Carolina cover specific costs related to processing or transporting food for donation. Different states also offer incentives for different types of donors, with the bulk targeting farmers.
Texas TAX INCENTIVES
Texas does not offer additional tax incentives beyond federal incentives.
Federal Tax Incentives
The federal government provides tax deductions to incentivize businesses to donate food. As of December 2015, all businesses—including C-corporations, S-corporations, limited liability corporations (LLCs), partnerships and sole proprietorships—are eligible for an enhanced tax deduction that exceeds the property’s basis for donated food if they meet certain requirements. If they do not meet the requirements, they can still claim a general tax deduction in the amount of the property’s basis.
For centuries, using food scraps as animal feed was common worldwide. The practice declined rapidly in the 1980s, when several disease outbreaks were linked to unsafe animal feed. In an attempt to prevent the spread of such diseases, federal laws and regulations were enacted to restrict what is often pejoratively referred to as “garbage feeding” to animals. However, using food scraps as animal feed in a safe, resource-efficient way can be environmentally friendly and energy-efficient, providing multiple benefits for both farmers and food waste generators, such as retailers, restaurants, and institutional cafeterias. Interest in the practice of using a wider array of safe, properly-treated food scraps from a range of sources—including unsold retail food and post-consumer food scraps—as animal feed has been growing.
Federal and state governments regulate the feeding of food scraps to animals by setting restrictions, which vary based on the type of animal that may be fed food scraps and the kind of scraps they may be fed. Forty-eight states and Puerto Rico regulate these practices, most often regarding swine. The federal regulations function as a floor, and state regulations go beyond them, in some cases banning the practice of feeding any food scraps to animals. For example, 15 states ban feeding swine food scraps that contain any animal parts or material, and nine of these states even ban the feeding of vegetable waste to swine. Twelve states also have more stringent license and heat-treatment requirements than the federal rules. These states require heat-treating of vegetable-based food scraps (not just animal-derived food scraps) before they are fed to swine.
Texas Animal Feed Regulations
Tex. Ag. Code Ann. §§ 165.001, 165.026 (2015); see also Tex. Admin. Code tit. 4, § 55.3 (2015)
- Animals covered
- Definition of "garbage"
- “Restricted garbage” includes (A) the animal refuse matter and the putrescible animal waste resulting from handling, preparing, cooking, or consuming food containing all or part of an animal carcass; (B) the animal waste material byproducts or commingled animal and vegetable waste material byproducts of a restaurant, kitchen, cookery, or slaughterhouse; and (C) refuse accumulations of animal matter or commingled animal and vegetable matter, liquid or otherwise. “Unrestricted garbage” includes vegetable, fruit, dairy, or baked goods refuse matter and vegetable waste and refuse accumulations resulting from handling, preparing, cooking, or consuming food containing only vegetable matter, liquid or otherwise. § 165.026 (2015).
- No feeding garbage to swine. Exception for individuals feeding household garbage. § 165.026 (2015).
- An individual or facility can only feed unrestricted garbage to swine if it secures a permit from the state. But an individual feeding household garbage to his or her own swine need not obtain a permit. § 165.026 (2015).
- The commission may suspend a registration or require the immediate quarantine and closure of a garbage-feeding facility if the operation presents a danger to public health or the livestock industry. § 165.026 (2015).
- Treatment requirements
- Relevant state regulatory body
- Texas Animal Health Commission (§165.001 (2015)), http://www.tahc.texas.gov/.
Federal Animal Feed Policy
Under federal law, food scraps can generally be fed to animals, so long as food scraps with animal derived by-products are heat-treated by a licensed facility before being fed to swine; and food scraps containing animal-derived by-products are not fed to ruminants. The federal regulations function as a floor, and most state regulations go beyond them.
Organic Waste Bans & Waste Recycling Laws
In order to push businesses and consumers to reduce food waste, a growing number of states and localities are enacting organic waste bans or waste recycling laws to restrict the amount of food waste an entity can send to the landfill. Five states and several localities have passed either waste bans or waste recycling laws for food waste. Four states—Connecticut, Massachusetts, Rhode Island, and Vermont—structure their laws as organic waste bans, while one state, California, has instituted a waste recycling law requiring commercial generators of organic waste to either compost or anaerobically digest organic waste. Each of these states prohibits certain entities that generate specified amounts of food waste from sending this waste to landfills, subject to exceptions. The municipal laws that exist function similarly to the laws of these states.
However, each state differs regarding the specifics of its waste ban or recycling law. For example, they vary with regard to the types of entities covered under the law, how much organic waste an entity must produce in order to be covered, and whether exceptions exist for entities located far from a facility that accepts food scraps. As of 2020, Vermont’s law will cover anyone, including residents, who generates any amount of food waste. In contrast, other states cover only certain commercial, industrial, and institutional entities. These differences have a significant impact on the reach of these laws, and therefore on the amount of food waste diverted.
Texas Organic Waste Recycling Laws
Austin, Tex., Ordinance to Amend City Code Ch. 15-6 (Apr. 25, 2013)
- Generators Covered
- Any food enterprise, meaning any food establishment, food process plant, farmers market vendor, temporary or mobile food establishment that is required a food permit. All food enterprises must comply by October 1, 2020, with compliance phased in based on establishment size according to the following schedule: 2016: 50,000+ square feet 2017: 15,000+ square feet 2018: 5,000+ square feet 2019: 1,000+ square feet