A 133 Billion Pound Burden—Who’s Doing the Heavy Lifting?

Summary: Good samaritan food laws across the country provide liability protection for those who donate food. Unfortunately, families who depend on such donations pay a dramatic cost if they become ill because of simple negligence.

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By Sarah Munger

In 2010, the United States wasted an estimated 133 billion pounds of post-harvest food.1 Of that, 43 billion pounds of waste occurred in the retail sector and 90 billion pounds occurred at the consumer level.2 Next to paper, food waste is the second largest category sent to landfills—it accounts for 18% of the waste stream.3 In addition, the EPA notes that food waste significantly contributes to the 18% of methane gas emissions from landfills.4

Making smarter, individual purchasing choices and adjusting personal habits will reduce consumer food waste. Retail food waste, on the other hand, is the result of a culture of surplus that over orders food inventory and subsidizes growing extra food. Smarter and more specific ordering can reduce some retail food waste, but there is some food waste on farms that cannot be avoided. Even when a farmer donates extra crops, not all their crops get harvested. A recent Vermont food loss study revealed “only 33% of vegetables that are not sold are donated”.5 Increasing food donations from farms and retailers can reduce food waste as well as provide food to the 12% of food insecure households in the U.S.6 Almost 100% of food insecure households in 2015 were worried their food would run out, could not afford to buy balanced meals, cut the size of their meals, and/or skipped meals.7

To increase food donations from retailers and farmers, the U.S. passed the Bill Emerson Good Samaritan Food Donation Act (Bill Emerson Act) in 1996. 8 The Bill Emerson Act relieves good faith food donors and nonprofit food distributors, like food banks, from liability for injury to the consumer except in cases of gross negligence or intentional misconduct. This means there is no legal remedy for someone who depends on food banks or pantries and suffers a food illness born from simple negligence. Yet paying customers could sue for negligence. Good Samaritan laws are part of the U.S. legal tradition because the promote good deeds by limiting liability. They also leave some of the nations must vulnerable citizens unprotected and without legal recourse.

To date, there is no record of a recipient of donated food suing a food donor. Even before Congress passed the Bill Emerson Act, there was no record of any such law suit. Though each state had (and still has) their own version of a Good Samaritan food donation law that also limits liability to food donors. The social situation of food insecure families combined with laws that limit food donor liability likely explains the absence of a legal precedent in this field. The alternative is that all donated food is safe and no one has ever gotten sick. This seems highly improbable given that many personal injury attorneys advertise their ability to recover damages for costs associated with food born illness. In addition, the Center for Disease Control estimates that every year 1 in 6 people in the U.S. get sick from contaminated food or beverages.9 True, many food banks and pantries take extensive quality control measures but so do many retailers. Food born illness is bound to result regardless of precautionary measures due the scale of the modern food system.

Like my VJEL colleague who also wrote about food waste,10 I call for amending the Bill Emerson Act. I would like to see a standard that protects the recipient while also providing some liability protection to food donors. Liability fear still prevents many from donating perfectly edible food. One subtle but effective method is to remove the “good faith” qualifying language from the Bill Emerson Act. Generally, donations made in good faith refer to a subjective state of mind. The question is whether the donor had an honest belief that the donation was fit for human consumption. Removing the good faith standard would still limit liability unless the donor or nonprofit distributor acted with gross negligence or intentional misconduct. But the law would measure their conduct objectively rather than subjectively. Food waste is a problem of enormous portions with real consequences for our planet, but food insecure families should not bear the burden.

Sarah Munger is a 2L at Vermont Law School and is a research associate with the National Gleaning Project. Sarah hopes to foster sustainable resource management in her legal career.