Summary: Food waste is  a potent source of greenhouse gas emissions in the United States. By encouraging food donation and streamlining food-recovery policies the federal government can build a national framework to combat the massive accumulation of food waste and begin to change people’s food-waste habits.


By Bonnie Smith

Every year Americans punt enough food to fill 730 football stadiums. Imagine 730 football stadiums brimming with rotting food. The stench is unbearable, the air laden with methane gas. Eventually all the organic matter breaks down into compost and the methane gas clears. The methane moves into the atmosphere where it has 21 times the climate-affecting capabilities as carbon dioxide. Food waste accounts for over 20% of methane emissions. Methane accounts for 10% of anthropogenic, or human caused, greenhouse gas emissions in the United States.

The federal government should take the lead in providing solutions to the problem of food waste. Simply sitting back and watching discarded food pile up in landfills while global temperature rise increasingly threatens the planet is no longer an option

What’s the Big Deal with Food Waste?

Approximately one 1/4 of food produced in the United States for human consumption is lost or wasted each year. Once discarded, excess food is almost never recovered. Ninety-eight percent of discarded food ends up in landfills. There, the food decomposes and releases methane gas into the atmosphere. In fact, food waste accounts for 7% of greenhouse gas emissions around the world, with each ton of wasted food producing 3.8 tons of greenhouse gas emissions.

In addition to food waste causing large quantities of methane gas to enter the atmosphere, food waste also negatively impacts the environment because water, land, energy, and labor capital resources are expended to grow, produce, and transport food that feeds no one. Applying fertilizers and pesticides, harvesting, processing, shipping, refrigerating, and storing food require large amounts of fossil fuels.When consumers, farmers, or businesses have excess food, they often discard it in the trash, which eventually goes to landfills.

How Do We Fix This Jumbo-Sized Problem?

The United States should address the problem of food waste by expanding the federal framework for food donation and date labeling. This article advocates a three-pronged approach for reducing food waste.

First, amending the Bill Emerson Act to explicitly make it the minimum national liability scheme for food donation would help reduce food waste. Congress passed the Bill Emerson Good Samaritan Food Act (“Bill Emerson Act”) in 1996. The purpose of the Bill Emerson Act is to encourage food recovery and gleaning efforts by providing a federal law to reduce potential donor liability. The Act removes civil and criminal liability for “persons” or “gleaners” who in “good faith” donate “apparently wholesome food” or “apparently fit grocery product[s]…to a nonprofit organization for ultimate distribution to needy individuals.”

Unfortunately since Congress enacted the Bill Emerson Act, food waste has actually increased in the United States. Confusion as to whether the Bill Emerson Act actually preempts state laws discourages businesses working intrastate from donating food. This confusion arises because the Act contains no explicit preemption language and because all fifty states have Good Samaritan food-donation laws. Many businesses do not know whether federal or state law applies to food donation. Amending The Bill Emerson Act to include a preemption clause deeming the Act to be the minimum national standard for food-donation liability would help reduce the confusion surrounding food donations.

Second, extending the federal tax code’s food donation incentives to include farmers, nonprofit organizations, and small businesses would help abet the problem of food waste. Section 170(3) of the Internal Revenue Code allows C corporations to receive charitable tax deductions for donating food to non-profit charitable organizations working on behalf of impoverished populations and the environment. C corporations are for-profit businesses, typically larger companies with many employees such as large retailers, restaurants, and food manufacturers. These larger, for-profit businesses typically have more resources than non-profit organizations and smaller for-profit businesses. Many small businesses and producers are unable to pay the costs associated with food donation and would benefit from tax incentives. Expanding the scope of Section 170(e)’s tax deductions beyond C corporations would provide greater opportunities for smaller businesses and producers in the food industry to donate excess food to food-donation centers.

Third, creating a uniform federal date-labeling policy for food would help address the food-waste problem. In the United States, misinterpreting date labels on food products is a major cause of waste. The confusion with date labels arises because date labels that say ‘“use-by,” “sell-by,” or “best-before” are vague and not always targeted toward consumers. They give consumers the impression that the date listed is an expiration date, when often it is not. As a result, people and food-donation centers throw away perfectly edible food, incorrectly believing it to be bad or unsafe to eat.

The problem of inconsistent and confusing date labeling is due to the federal government’s lack of a comprehensive framework establishing standard laws or regulations for the date labels of food products. This lack of federal oversight gives states the ability to regulate date labels on food. But states do so in a patchwork of ways that is confusing for businesses and consumers. Some states do not regulate date labels at all.

The federal government should create a new and uniform date-labeling system for food products that consumers and food-donation centers can easily understand. Various changes will be needed to help consumers and food-donation centers change their food-discarding habits. Such changes could include: removing the sell-by date from customers’ vision so that they are not confused with safety dates; removing dates from nonperishable items; establishing a clear, uniform labeling system vocabulary; and adding freeze-by dates on products to encourage preserving food products for longer periods.

In conclusion, adopting this three-pronged plan would help the United States reduce climate-affecting greenhouse gas emissions by encouraging food donation and by helping consumers understand when their food actually goes bad. For a more comprehensive explanation of this plan, look for the full version of this article to be published in VJEL Volume 18.

Bonnie isBonnieSmith_400 a second year law student at Vermont Law School and is pursuing a dual degree in French business law with Cergy-Pontoise in Paris. Through her legal studies, Bonnie aspires to reach a greater understanding of sustainable solutions to human development though responsible business practices.