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The Law of Food Recovery: Reducing Risk, Maximizing Benefit, Creating Culture

Austin Zero Food Waste Forum!
by

Nicole Civita

on 18 July 2015

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Transcript of The Law of Food Recovery: Reducing Risk, Maximizing Benefit, Creating Culture

Barriers to Food Recovery
National Standard?
Other Details
1. The donated item must be either:
"
apparently wholesome food
" or
"
apparently fit grocery product
"

2. The covered party must
donate the items in

good faith

3. The donation must be made
to a nonprofit organization
&

4. The nonprofit must
distribute
the donated items
to needy individuals
.
How It Works
http://foodrecoveryproject.com/
Nicole M. Civita, J.D. LL.M.
Affiliated Professor
LL.M. Program in Agricultural & Food Law
Director, Food Recovery Project
University of Arkansas School of Law
Fayetteville, Arkansas




Faculty in Sustainable Food Systems
Asst. Director, Rian Fried Center for Sustainable Agriculture & Food Systems
Sterling College
Craftsbury Common, VT




Of Counsel
Foscolo & Handel, PLLC
The Food Law Firm
Sag Harbor, NY
RISK
Legal Liability
Foodborne Illness
The Bill Emerson Good Samaritan Food Donation Act
http://law.uark.edu/foodrecovery
nmcivita@uark.edu
The BEA creates a powerful
exemption from liability for
negligently caused
harm
arising from the
nature, age, packaging, or condition
of donated items as long as the following 4 requirements are met:
Each year, the Program prepares a small number of carefully selected attorneys as specialists in the complex legal issues involving agriculture & our food system.

The LL.M. Program in Agricultural & Food Law offers the only advanced legal degree program in agricultural & food law
in the United States.
The Program attracts candidates from throughout the United States & the world. Alumni currently work in 40 different states & 17 foreign countries, serving as leaders in private practice, government, agribusiness, public policy, & academia.
[now offerng part-time & distance options]
Negative Attention
Perceived
vs. Actual Risk
Premises Liability
Partial Compliance
What Can Be Donated
Who Is Protected?
"It's against the law to give away the food we don't sell."
Expectation of
ILLEGALITY
RESISTANCE
Path of Least
Planning
Training
Oversight
Covered Activities
Field gleaning
Persons,
Gleaners &
Non-Profits
Intent was to create a national
MINIMUM standard
for liability protection

No state can provide
less protection than the BEA

Food & grocery products that meet
all quality & labeling standards imposed by
Federal, State, & local laws & regulations
even though not readily marketable
disposable paper & plastic products,
laundry detergent, cleaning products, &
miscellaneous household items
Often food donations are made by grocery stores, food wholesalers, caterers, & the like, when the food has fallen below the donator’s quality or appearance standards but the food is still wholesome. It may also happen that processed food is donated at or near the "freshness date" or "code date" on the box or container.

However, because donated food is reconditioned & often used quickly after donation, many factors must be considered when determining what is and is not gross negligence.

- House Report 104-661

Legislative History
GROSS NEGLIGENCE:
everyone involved must still comply
with all applicable
federal, state, or local
health and safety regulations
Presently knowing & purposefully harmful conduct
[Sell by / Use by / Expiration Dates
are NOT NECESSARILY Determinative]
“voluntary and conscious conduct (including a failure to act) 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.”
Case-specific, multi-factor inquiry
Why not eliminate
ALL potential liability?
ordinary negligence
gross negligence
recklessness &
intentional misconduct
Protect the vulnerable?
Maximum recovery?
Food/grocery items that don't meet all applicable standards
may be donated
notify the receiving nonprofit about the nonconformity
nonprofit knows how to recondition & agrees to do so
Model Consumer Commodity Salvage Code
exempts
donor
from negligence liability associated with accidents that occur while gleaning/recovering
Develop & Implement a Comprehensive Food Recovery Plan
Best Advice:
Grocery Products include:
(Other Legal Dimensions)
Beyond Liability
Slopping bans / laws pertaining to animal feed
Tax Code & permanence of the Sec. 170(e)(3)(C) enhanced deduction // State tax benefits
State/Local organic waste bans & limits
Develop a productive & proactive relationship with your local regulators/inspector
(Contact your Dept. of Health for guidance)
USDA/FDA:
Comprehensive Guide to Food Recovery
http://law.uark.edu/academics/llm/
produces resources &
legal information
designed to encourage &
support businesses in
developing & implementing
food recovery programs
Individual states can
-- & do -- go further
"Gleaner" =one who harvests for donation an agricultural product grown by another
"Non-profit" = charitable purpose
"Person" = very broadly defined
Good Faith
1. Honesty in belief or purpose

2. Faithfulness to one's duty or obligation;

3. Observance of reasonable commercial
standards of fair dealing

4. Absence of intent to defraud or
to seek unconscionable advantage
[Rules of Engagment Vary by Location]
food rescue / food recovery / food salvage
"served"
specific types of food that can / not be recovered
"out-of-date" products
"offered for sale"
labeling / disclosure / allergen declarations
crossing borders (city, county, state)
Federal Liability Protection
INTENTIONAL MISCONDUCT:
http://law.uark.edu/documents/2013/06/food-recovery-final2007.pdf
Food Recovery: A Legal Guide
http://law.uark.edu/documents/2013/06/Legal-Guide-to-the-BEA-Haley-Final.pdf
http://law.uark.edu/documents/2013/06/Legal-Guide-To-Food-Recovery.pdf
More detailed legal research
http://law.uark.edu/documents/2013/06/Bill-Emerson-Act.pdf
look for variation
regarding treatment of:
Representative Emerson died of lung cancer on June 22,1996, before final passage of the bill, which he co-sponsored & fought for despite failing health.

After his passing, Congress wanted to honor him & mark his legacy, so they amended the bill's title to be
“The Bill Emerson Good Samaritan Food Donation Act”

Missouri

Representative Bill Emerson

worked tirelessly during his legislative career to secure bi-partisan support for anti-hunger initiatives.
Before the BEA, liability protctions varied state-by-state.

50 states =50 standards

This made it difficult for businesses to develop low-risk, consistent food recovery programs & protocols.
http://www.ourcommunityfoodbank.org/file/Food%20Drive%20Sorting%20and%20Salvage%20Handbook%20with%20Appendixes.pdf
Food Handling / Health Safety Regulation
K-12 School Food Waste Reduction & Recovery Promotion
FOOD CONSERVATION POLICY
Food Product Dating
Nonperishable processed food collection
Perishable & prepared food rescue
Perishable produce rescue/salvage
Currently being updated & made more user friendly
ncivita@sterlingcollege.edu
nicole@foodlawfirm.com
http://sterlingcollege.edu
http://foodlawfirm.com
http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.76.htm
VTCA Civil Practice & Remedies Code
Sections 76.001-76.004
available at
TEXAS
similar in most respects, but note
non-profit definition
exclusion of damaged canned goods
express gleaning premises protection
"SUBSTANTIAL COMPLIANCE" standard for non-profits

NO LAWSUITS
(The French Approach)
Gaspillage Alimentaire
DONATION: Supermarkets could have a legal obligation to donate extra food to non-profit organizations (upon request)
TRANSPARENCY: Large corporations would have to include data on food waste in CSR statements
LANDFILL BANS & HIERARCHICAL DIVERSION: Large generators of organic waste would be required to follow a hierarchy of alternatives to landfilling (animal feed, industrial applications, anaerobic digestion or composting)
REGULATORY REFORMS: A range of proposed measures would clarify expiration dates, establish parameters for shipment rejection, encourage waste reduction in government food programs and institutions, encourage gleaning of unharvested crops on farms, and offer "clemency" to dumpster-divers, etc.
FUNDING FOR GOV'T TRACKING & MANAGEMENT + PUBLIC EDUCATION
The amount of the deduction is the lesser of (1) the donated food’s basis cost plus 50% of the donated food’s appreciated value or (2) two times the basis cost of the donated food.
The America Gives More Act of 2015 (H.R. 644)would permanently extend the deduction for charitable contributions of food inventory and expand it by:

Increasing the contribution limit for C corporations to 15 percent (from 10 percent) of the
taxpayer’s net income for the taxable year, and increasing the limit for a taxpayer that is
not a C corporation to 15 percent of the taxpayer’s aggregate net income for the taxable
year from all trades or businesses from which such contributions were made for the
taxable year;

• Providing a five-year carryforward for qualifying food inventory contributions that exceed
the 15 percent limit; and

• Adding presumptions that certain taxpayers may use in determining the tax basis and
the fair market value of donated food inventory.
Full transcript