USDA issues final guidelines on donated food

Background

The final guidelines announced¹ were created as part of a multi-agency effort to reduce food waste and combat food insecurity. In October 2018, USDA, EPA, and FDA entered into a formal agreement based on the Winning on Reducing Food Waste Initiative, affirming their shared commitment to reduce food loss and waste by 50 percent by 2030.  As part of the agreement, the agencies decided to coordinate measures to reduce food loss and waste.  In December 2020, FSIS proposed guidelines to address questions regarding food donation from meat and poultry establishments and non-profit organizations.  The new, final guidelines reflect FSIS’s consideration of stakeholder comments.

Final Guidelines

Below we summarize the final guidelines regarding limited liability protection for donors, products eligible and ineligible for donation, shipping donated products, donation of products produced under inspection exemptions, and guidance for recipients of donated products.  A flowchart outlining which products may be donated is attached as an Appendix. 

1. Limited Liability Protection for Donors

The Bill Emerson Good Samaritan Food Donation Act of 1996 and the Food Donation Improvement Act of 2023, which amended the Bill Emerson Good Samaritan Food Donation Act, encourage the donation of food to needy individuals, either directly or through non-profit organizations who distribute donations to needy individuals. Both Acts exempt individuals who make a good faith donation of food to a non-profit organization or directly to a needy individual from liability for injury caused by the donated foods. This exemption also applies to the non-profit organizations who receive the donated food in good faith.  Even so, all donations must comply with applicable state and local health and food safety laws. Relevant standards of both Acts are summarized below:

• Persons and gleaners (including qualified direct donors): Persons and gleaners, including qualified direct donors (see below), who make a good faith donation of food to non-profit organizations that feed needy individuals or make donations directly to needy individuals are not subject to liability arising from injuries due to the nature, age, packaging, or condition of the food donated.
• Qualified Direct Donors: The term includes retail grocers, wholesalers, agricultural producers, agricultural processors, agricultural distributors, restaurants, caterers, school food authorities, and institutions of higher education.
• Non-profit organizations: Like persons and gleaners, non-profit organizations who, in good faith, receive donated food for distribution to needy individuals will not be subject to liability for injuries arising from the nature, age, packaging, or condition of the donated food.
• Direct Donations to Needy Individuals: A qualified direct donor will not be subject to liability for injury arising from the nature, age, packaging, or condition of food or grocery products donated in good faith.

The limited liability protection for donors does not extend to adulterated products. Further, the donor, shipping firm, and recipient of donated food all share the responsibility to maintain the safety of donated food.  These liability protections apply to companies donating FDA- or FSIS-regulated products, although the remainder of the FSIS guidance described further below applies only to FDA-regulated products.

2. Donation Eligibility of Specific Products

The guidelines identify FSIS-regulated products that are eligible and ineligible for donation. Products that have passed inspection, have an incorrect standard of identity, or contain use limitations may always be donated. Misbranded or economically adulterated products,  products intended for export, products inspected by state authorities, and expired products may be donated under certain conditions. Adulterated and experimental products cannot be donated. We summarize the donation eligiblity of these products in the chart below.

3. Donation of Products Produced Under Inspection Exemptions

The guideline allows donation of some meat, poultry, and egg products slaughtered and/or processed under a federal inspection exemption, as summarized in the following charts:

Eligibility of Meat Products for Donation

Eligibility of Poultry Products for Donation

Eligibility of Egg Products for Donation

4. Guidance for Organizations Receiving Donated Products

A non-profit organization may receive and distribute federally inspected products to customers in need under the retail exemption to federal inspection requirements. If the non-profit organization receives state-inspected products, those may only be distributed within the state. Further, retailers must follow all FDA, state, and local requirements while supplying products under the retail exemption, including all adulteration and misbranding provisions. Further, the non-profit organization must ensure that any repackaged products meet all FSIS labeling requirements that apply at retail and must ensure that any repackaged products are properly labeled.⁷

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Please contact us if you have any questions regarding this or any other matter.

Authored by Brian Eyink and Jamie Hannah.

References

1 FSIS Guideline to Assist with the Donation of Eligible Meat and Poultry Products to Non-Profit Organizations, 89 Fed. Reg. 45620 (May 23, 2024), available here.

2 21 U.S.C. 673(a)(5)(A) and 21 U.S.C. 467b(a)(5)(A).

3  A product is economically adulterated when any valuable constituent in whole or in part has been omitted or removed, when any less valuable substance has been substituted, when any substance is added or mixed, or when packaging misrepresents the weight or bulk making them appear to be of greater value. See 21 U.S.C. 601(m)(8); 21 U.S.C. 453(g)(8); 21 U.S.C. 1033(a)(8)).

4 Ingredients of public health concern include the Big 9 allergens, sulfites, lactose, Yellow 5, gluten, and MSG.

5 See 9 CFR 412.1(f)(1).

6  Experimental products are new or existing products that introduce a new formulation or flavor and are limited to research and development purposes. See FSIS Directive 7000.2, Experimental and Sample Products Policy.

7 See 9 CFR 317.2, 9 CFR 381 Subpart N, and 9 CFR 590.411. Labeling requirements include the name of the product, the name and address of the manufacturer, packer or distributor of the product (which can be the food bank), a list of ingredients if the product is made from two or more ingredients, a special handling statement (e.g., “Keep Refrigerated”) if the product is perishable, nutrition information (unless an exemption applies, such as that the product will not be sold), and safe-handling instructions if not ready-to-eat.