“Model Federal Bill Emerson Good Samaritan Food Donation Act”

Potential donors most often cite fear of liability as the reason they refuse to donate to feeding programs. Before passage of the national law “Model Federal Bill Emerson Good Samaritan Food Donation Act”, all 50 states and the District of Columbia had adopted laws protecting donors. Yet, differences in language and applicability between states often discouraged national and regional companies from donating. With the national law in place, regional and national donors have the uniform language that protects them from civil and criminal liability.

The resources created and compiled are provide as a helpful introduction to food donations and food rescue. However, the information on this site about legal matters is provided as a general guide only and should not be relied on as a substitute for specific legal advice. We endeavor to keep all the information on the site as up to date as possible, but errors may sometimes occur. Legal sources are The Food Recovery Project, an initiative of the University of Arkansas School of Law (LL.M. in Agricultural and Food Law) and Food Waste Reduction Alliance.

The Bill Emerson Good Samaritan Food Donation Act, or “Good Samaritan Act”, is federal legislation that protects both donors and recipients against liability as long as there has been no gross negligence and/or intentional misconduct.

Protection applies to all financial structures (individuals, corporations, partnerships, organizations, associations, non-profits, and government entities) as well as all sectors of the food industry (wholesalers, retailers, restaurateurs, manufacturers, farmers) .

The Act protects products that meet all quality and labeling standards imposed by federal, state and local laws and regulations even though the food may not be “readily marketable due to appearance, age, freshness, grade, size, surplus or other conditions”.

This includes:

• Dry, Refrigerated and Frozen Food
• Grocery Products (i.e. paper towels, dish soap)
• Health and Beauty Aids (i.e. shampoo)
• Over-the-Counter items (i.e. first aide supplies like bandages)
• Fresh Produce
• Prepared Foods & Perishable Goods (i.e. excess food prepared for a banquet, but not served — like trays of lasagna or pots of soup)
• Semi-finished Product (i.e. Misshapen meat patties for frozen meals, bulk ingredients like excess cereal for granola bars, or undersized frozen vegetables)

The 1976 Tax Reform Act (Section 2135) made inventory donation to charities more advantageous for business taxpayers by increasing the allowable income tax deduction by 50% of the difference between costs of goods sold and the fair market value of the goods not to exceed two times the cost.

In 2015, Congress passed the PATH Act, which includes several important improvements to tax incentives allowable for food donation.

These include:

Allowing all donors regardless of size to take an enhanced tax deduction and allowing a carryforward of the deduction for up to five years. Prior to 2015, only C corporations (large companies) could always take an enhanced tax deduction when donating food to a nonprofit; the law was expanded in 2006 to include non-C corporations (generally smaller companies) but the expansion was temporary until passage of the PATH Act;

Allowing farmers and other “cash method” accounting taxpayers to consider 25% of the fair market value (FMV) of the donated food as the cost to produce the food;

Increasing the 10% cap of allowable charitable contributions to 15% for donated food; and,

Codifying an important Tax Court ruling, Lucky Stores, Inc. v. Commissioner of Internal Revenue which opens more opportunities overall.

Donors are advised to consult with their tax advisor in applying the appropriate deductions, such as IRC Section 170 (e) (3).