Good Samaritan Act

The Bill Emerson Good Samaritan Food Donation Act

On October 1, 1996, President Clinton signed the Bill Emerson Good Samaritan Food Donation Act to encourage the donation of food and grocery products to non-profit organizations for distribution to needy individuals. This law makes it easier to donate. Here's how:

  • It protects donors from liability when donating to a non-profit organization.
  • It protects donors from civil and criminal liability should the product donated in good faith later cause harm to the needy recipient.
  • It standardizes donor liability exposure. Donors and their legal counsel no longer have to investigate liability laws in 50 states.
  • It sets a liability floor of "gross negligence" or intentional misconduct for persons who donate grocery products. (See Act text for further definitions.)

Congress recognized that the provision of food close to recommended date of sale is, in and of itself, not grounds for finding gross negligence. For example, cereal can be donated if it is marked close to code date for retail sale. The bill was named for Rep. Bill Emerson (R-Missouri) who fought for the proposal but died of cancer before it was passed.

The text of this Act follows on the next page


The Bill Emerson Food Donation Act

One Hundred Fourth Congress of the United States of America

At the Second Session

Begun and held at the City of Washington on Wednesday, the third day of January, one thousand nine hundred and ninety-six.

An Act

To encourage the donation of food and grocery products to nonprofit organizations for distribution to needy individuals by giving the Model Good Samaritan Food Donation Act the full force and effect of law.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Section 1. CONVERSION TO PERMANENT LAW OD MODEL GOOD SAMARITAN FOOD DONATION ACT AND TRANSFER OF THAT ACT TO CHILD NUTRITION ACT OF 1966.

(a) Conversion to Permanent Law. -- Title IV of the National and Community Service Act of 1990 is amended

-- by striking the title heading and sections 401 and 403 (42 U.S.C. 12671 and 12673); and in section 402 (42 U.S.C. 12672) -- (A) in the section heading, by striking "model" and inserting "bill emerson" (B) in subsection (a), by striking "Good Samaritan" and inserting "Bill Emerson Good Samaritan:" (C) in subsection

(b)(7), to read as follows: "(7) GROSS NEGLIGENCE. -- The term 'gross negligence' means 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."; (D) by striking subsection

(c) and inserting the following: "(c) LIABILITY FOR DAMAGES FROM DONATED FOOD AND GROCERY PRODUCTS. "

(1) LIABILITY OF PERSON OR GLEANER. -- A person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals. "

(2) LIABILITY OF NONPROFIT ORGANIZATION. -- A nonprofit organization shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals. "

(3) EXCEPTION. -- Paragraphs (1) and (2) shall not apply to an injury to or death of an ultimate user or recipient of the food or grocery product that results from an act or omission of the person, gleaner or nonprofit organization, as applicable, constituting gross negligence or intentional misconduct."; and (E) in subsection (f), by adding at the end the following: "Nothing in this section shall be construed to supersede State or local health regulations.". (b) TRANSFER TO CHILD NUTRITION ACT OF 1966. -- Section 402 of the National and Community Service Act of 1990 (42 U.S.C. 12762) (as amended by subsection (a)) -- is transferred from the National and Community Service Act of 1990 to the Child Nutrition Act of 1966; is redesignated as section 22 of the Child Nutrition Act of 1966; and is added at the end of such Act. (c) CONFORMING AMENDMENT. -- The table of contents for the National and Community Service Act of 1990 is amended by striking the items relating to title IV. Newt Gingrich Speaker of the House of Representatives Strom Thurmond President of the Senate Pro Tempore Approved 10/01/96 William J. Clinton President of the United States P.L. 104-210 http://www.usdoj.gov/olc/bressman.htm PREEMPTIVE EFFECT OF THE BILL EMERSON GOOD SAMARITAN FOOD DONATION ACT The Bill Emerson Good Samaritan Food Donation Act ("Act") preempts state "good samaritan" statutes that provide less protection than the Act from civil and criminal liability arising from food donated in good faith for distribution to the needy. March 10, 1997 MEMORANDUM FOR JAMES S. GILLILAND GENERAL COUNSEL, DEPARTMENT OF AGRICULTURE You have requested our views on the question whether the Bill Emerson Good Samaritan Food Donation Act (the "Act"), Pub. L. No. 104-210, 110 Stat. 3011 (1996), preempts state statutes that provide less protection from civil and criminal liability arising from food donated in good faith for distribution to the needy. We believe that Congress intended to establish a minimum level of immunity for those engaged in food donation and distribution. Accordingly, we believe that Congress intended to preempt state "good samaritan" statutes that provide less liability protection than the Act. I. In order to "encourage the donation of food and grocery products to nonprofit organizations for distribution to needy individuals," the Bill Emerson Good Samaritan Food Donation Act precludes civil and criminal liability arising from food donated in good faith, except in cases of gross negligence or intentional misconduct. Pub. L. No. 104-210, 110 Stat. at 3011. It converts to affirmative law the Model Good Samaritan Food Donation Act (the "Model Act"), 42 U.S.C. §§ 12671-12673, which was enacted in 1990 to provide states with model language for revising their existing good samaritan laws.(1) The Act provides: 1. LIABILITY OF PERSON OR GLEANER. -- A person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals. 2. LIABILITY OF NONPROFIT ORGANIZATION. -- A nonprofit organization shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals. 3. EXCEPTION. -- Paragraphs (1) and (2) shall not apply to an injury to or death of an ultimate user or recipient of the food or grocery product that results from an act or omission of the person, gleaner, or nonprofit organization, as applicable, constituting gross negligence or intentional misconduct. 110 Stat. at 3011-12.(2) II. As the Supreme Court has observed, preemption is fundamentally a question of congressional intent. See Medtronic, Inc. v. Lohr, 116 S. Ct. 2240, 2250 (1996) ("[t]he purpose of Congress is the ultimate touchstone in every pre-emption case") (internal quotations omitted). In assessing congressional intent, the Court has "long presumed that Congress does not cavalierly pre-empt state-law causes of action." Id. In cases where "Congress has 'legislated . . . in a field which the States have traditionally occupied.'" the Court "'start[s] with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). It is with this admonition in mind that we examine the preemptive effect of the Act. The Supreme Court has identified three ways in which a federal law may preempt state law.(3) First, Congress may preempt state law explicitly in the text of its statute. See English v. General Elec. Co., 496 U.S. 72, 78 (1990).(4) Second, Congress may preempt state laws implicitly by demonstrating an intent to occupy the field exclusively with federal regulation. See Rice, 331 U.S. at 230. Finally, even where Congress permits concurrent state regulation in a field, such regulation is preempted to the extent it actually conflicts with federal law. The Supreme Court has found an actual conflict where "compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce," Florida Lime & Avocato Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1962), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Although the Act contains no express preemption clause, its purpose is to supersede, at least to a certain extent, state good samaritan statutes. Thus, the question is to what extent it supersedes those statutes. We believe the Act clearly preempts state good samaritan statutes to the extent they provide less liability protection than federal law -- for example, to the extent they permit liability based on evidence of negligence -- because such laws literally would "stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, 312 U.S. at 67. As stated above, the express purpose of the Act is to "encourage the donation of food and grocery products to nonprofit organizations for distribution to needy individuals" by limiting liability for such activities. Unless potential donors and distributors are assured that the Act sets an absolute liability ceiling, they will continue to be deterred by the threat of liability under state law and will not be encouraged by the Act to donate food. Thus, to have any effect at all, the Act must preempt state statutes that provide less liability protection. The legislative history of the Act confirms this interpretation. As Representative Danner explained when introducing the bill in the House, the current patchwork of State laws has been cited by many potential donors as the principal reason so much food is thrown away rather than given to food banks and food pantries for distribution to the hungry. . . . Simply put, we need a reasonable nationwide law that eliminates confusion and forges a stronger alliance between the public and private sectors in this Nation. That is exactly what this bill delivers. The [Act] will establish a uniform national law to protect organizations and individuals when they donate food in good faith. A business should not have to hire a legal team to interpret numerous State laws so that it feels comfortable in contributing food to the hungry. 142 Cong. Rec. H7479 (daily ed. July 12, 1996). The remarks of other members of Congress also demonstrated an intent to preempt those state good samaritan statutes that conflict with the federal standard. See e.g., H.R. Rep. No. 661, 104th Cong., 2d Sess. 7 (1996) ("The bill would preempt civil and criminal liability laws of state and local governments that deal with the donation of food and grocery products to nonprofit organizations."); 142 Cong. Rec. S9532 (daily ed. Aug. 2, 1996) (statement of Sen. Kennedy) (acknowledging that the Act would "diminish the protections afforded by the tort laws"). Indeed, Representative Conyers expressed concern about the intended preemptive effect of the Act: Although I am supportive of the impetus behind the legislation -- encouraging private entities to donate food to nonprofit organizations who distribute food to the needy -- I question whether preempting traditional State law prerogatives in this area is desirable . . . . [A]ll 50 States have enacted special statutory rights concerning food donations. Not surprisingly, the States have crafted a variety of liability rules -- ranging from those who subject all negligent parties to liability, to those who limit liability only to grossly negligent or intentional acts. Unfortunately, with the adoption of this bill, the House will be seeking to impose a one-size-fits-all legal standard for food donors . . . . 142 Cong. Rec. H7480 (daily ed. July 12, 1996). President Clinton also apparently believed that the Act would preempt conflicting state laws. In his signing statement the President observed: In working with various private sector donors and food banks . . . it has come to light that liability concerns are often an impediment to food recovery and donation efforts. Although many States have enacted their own "Good Samaritan" laws to support food recovery and donation efforts, many businesses have advised that these varying State statutes hinder food donations. This legislation will end the confusion regarding liability for food recovery and donation operations through uniform definitions in one national law. 32 Weekly Comp. Pres. Doc. 1943 (Oct. 1, 1996). We believe that the legislative history of the Act, together with its express purpose and the context in which it was enacted, indicate that Congress intended to establish a "uniform national law" that displaces conflicting state good samaritan statutes -- i.e., those that provide less liability protection than federal law. There is an argument that Congress intended to go even further, preempting not only less protective state statutes but all state good samaritan laws. Although we acknowledge that some parts of the legislative history could be read to support this argument, we find insufficient evidence that Congress intended to preempt the field. "Field preemption" does not seem necessary to achieve the congressional goals underlying the Act. The Act should have the desired effect of encouraging food donation as long as it assures potential donors that they will not incur liability for conduct above a certain national level of culpability. The existence of state standards that provide even greater protection from liability should not deter food donation; indeed, they may further promote it. Furthermore, as noted above, the Supreme Court is reluctant to construe preemption broadly in areas traditionally regulated by the states.(5) For these reasons, we decline to interpret the Act to preempt all state good samaritan statutes. Rather, we construe the Act to preempt only those state good samaritan statutes that furnish less liability protection than federal law. Dawn E. Johnsen Acting Assistant Attorney General 1 Every state and the District of Columbia prior to 1990 had enacted some form of statutory protection from liability for food donation and distribution. See H.R. Rep. No. 661, 104th Cong., 2d Sess. 2-3 (1996) (citing "Summary of Good Samaritan Food Donation Statutes" prepared by Winthrop, Stimson, Putnam and Roberts in 1992 for "Share Our Strength," a non-profit hunger relief organization). These statutes are exceptions to the common law or statutory rule of strict liability for distributing food or any other defective product, the defective aspect of which causes injury. Id. The statutes vary considerably, however. Some provide liability only for gross negligence or intentional acts, while other impose liability for negligence. Still others limit liability if the donor reasonably inspects the food at the time of donation and has no actual or constructive knowledge of any defective condition. Only one state has adopted the language in the Model Act. Id. 2 The Act defines a "gleaner" as "a person who harvests for free distribution to the needy, or for donation to a nonprofit organization for ultimate distribution to the needy, an agricultural crop that has been donated by the owner." 42 U.S.C. § 12672(b)(5). 3 See generally Freightliner Corp. v. Myrick, 115 S. Ct. 1483, 1487 (1995); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516-17 (1992). 4 For example, to expressly state regulation on a particular subject, Congress may provide that "[n]o State or political subdivision of a State may establish or continue in effect . . . any requirement - (1) which is different from or in addition to, any requirement applicable under [federal law] . . . and (2) which relates . . . to any other matter included in a requirement applicable . . .under [federal law]." 21 U.S.C. § 360k(a) (Federal Food, Drug, and Cosmetic Act, as amended by the Medical Device Amendments); see also 29 U.S.C. § 1144(a) (provision in ERISA preempting "any and State laws insofar as they may now or hereafter relate to any employee benefit plan"). Congress instead may limit the extent to which states may regulate, by providing for example that "[a] State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement." 45 U.S.C. § 434 (Federal Railroad Safety Act, repealed by Pub. L. No. 103-272 § 7(b), 108 Stat. 1379 (1994)). 5 See Medtronic, Inc., 116 S.Ct. at 2250; Rice 331 U.S. at 230. The Good News About Good Sam On October 1, 1996, President Clinton signed the Bill Emerson Good Samaritan Food Donation Act to encourage the donation of food and grocery products to nonprofit organizations for distribution to needy individual. This new law makes it easier to donate. Here is how: • It protects donors from liability when donating to a nonprofit organization. • It protects donors from civil and criminal liability should the product donated in good faith later cause harm to the needy recipient. • It standardizes donor liability exposure. Donors and their legal counsel no longer have to investigate liability laws in 50 states. It sets a liability floor of "gross negligence" or intentional misconduct for persons who donate grocery products. According to the law, gross negligence is defined as "voluntary and conscious conduct by a person with the knowledge (at the time of the conduct) that the conduct is likely to be harmful to the health or well-being of another person." Congress recognized that the provision of food close to recommended date of sales is, in and of itself, not grounds for finding gross negligence. For example, cereal can be donated if it is marked close-to-date for retail sale. Donating is easier now than ever before. The Foodbank of the Virginia Peninsula continues to meet or exceed the same federal food-handling and safety regulations that govern the food and grocery industry. For the complete text of the Bill Emerson Good Samaritan Food Donation Act, see below, send mail to This email address is being protected from spambots. You need JavaScript enabled to view it. with questions or comments about this web site. Text of Emerson Good Samaritan Food Donation Act PUBLIC LAW 104-210 An Act To encourage the donation of food and grocery products to nonprofit organizations for distribution to needy individuals by giving the Model Good Samaritan Food Donation Act the full force and effect of law. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, (a) Conversion to Permanent Law.--Title IV of the National and Community Service Act of 1990 is amended-- (1) by striking the title heading and sections 401 and 403 (42 U.S.C. 12671 and 12673); and (2) in section 402 (42 U.S.C.12672)-- (A) in the section heading, by striking ``model'' and inserting ``Bill Emerson''; (B) in subsection (a), by striking ``Good Samaritan'' and inserting ``Bill Emerson Good Samaritan''; (C) in subsection (b)(7), to read as follows: ``(7) Gross negligence.--The term `gross negligence' means 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.''; (D) by striking subsection (c) and inserting the following: (c) Liability for Damages From Donated Food and Grocery Products.-- (1) Liability of person or gleaner.--A person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a non-profit organization for ultimate distribution to needy individuals. (2) Liability of non-profit organization.--A non-profit organization shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the non-profit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals. (3) Exception.--Paragraphs (1) and (2) shall not apply to an injury to or death of an ultimate user or recipient of the food or grocery product that results from an act or omission of the person, gleaner, or non-profit organization, as applicable, constituting gross negligence or intentional misconduct.''; and (E) in subsection (f), by adding at the end the following: ``Nothing in this section shall be construed to supersede State or local health regulations.''. (b) Transfer to Child Nutrition Act of 1966.--Section 402 of the National and Community Service Act of 1990 (42 U.S.C.12672) (as amended by subsection (a))-- (1) is transferred from the National and Community Service Act of 1990 to the Child Nutrition Act of 1966; (2) is redesignated as section 22 of the Child Nutrition Act of 1966; and (3) is added at the end of such Act. (c) Conforming Amendment.--The table of contents for the National and Community Service Act of 1990 is amended by striking the items relating to title IV. SECTION 1. CONVERSION TO PERMANENT LAW OF MODEL GOOD SAMARITAN FOOD DONATION ACT AND TRANSFER OF THAT ACT TO CHILD NUTRITION ACT OF 1966. SECTION OF THE NATIONAL AND COMMUNITY SERVICE ACT OF 1990 THAT WAS AMENDED BY THE EMERSON GOOD SAMARITAN FOOD DONATION ACT: Public Law No. 101-610, 104 Stat. 3183 (codified at 42 U.S.C. 12671-12673) (1990) TITLE IV- FOOD DONATIONS SEC. 401. SENSE OF CONGRESS CONCERNING ENACTMENT OF GOOD SAMARITAN FOOD DONATION ACT. (a) IN GENERAL.—It is the sense of Congress that each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States should (1) encourage the donation of apparently wholesome food or grocery products to nonprofit organizations for distribution to needy individuals; and (2) consider the model Good Samaritan Food Donation Act (provided in section 402) as a means of encouraging the donation of food and grocery products. (b) DISTRIBUTION OF COPIES. -The Archivist of the United States shall distribute a copy of this title to the chief executive officer of each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States. SEC. 402. MODEL GOOD SAMARITAN FOOD DONATION ACT. (a) SHORT TITLE. —This section may be cited as the "Good Samaritan Food Donation Act". (b) DEFINITIONS. —As used in this section: (1) APPARENTLY FIT GROCERY PRODUCT.—The term "apparently fit grocery product" means a grocery product that meets a quality and labeling standards imposed by Federal, State, and local laws and regulations even though the product may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions. (2) APPARENTLY WHOLESOME FOOD. —The term "apparently wholesome food" means food that meets 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. (3) DONATE.—The term "donate" means to give without requiring anything of monetary value from the recipient, except that the term shall include giving by a nonprofit organization to another nonprofit organization, notwithstanding that the donor organization has charged a nominal fee to the donee organization, if the ultimate recipient or user is not required anything of monetary value. (4) FOOD.—The term "food" means any raw, cooked, processed, or prepared edible substance, ice, beverage, or ingredient used or intended for use in whole or in part for human consumption. (5) GLEANER. —The term "gleaner" means a person who harvests for free distribution to the needy, or for donation to a nonprofit organization for ultimate distribution to the needy, an agricultural crop that has been donated by the owner. (6) GROCERY PRODUCT. —The term "grocery product" means a nonfood grocery product, including a disposable paper or plastic product, household cleaning product, laundry detergent, cleaning product, or miscellaneous household item. (7) GROSS NEGLIGENCE.—The term "gross negligence" means voluntary and conscious conduct by a person with knowledge (at the time of the conduct) that the conduct is likely to be harmful to the health or well-being of another person. (8) INTENTIONAL MISCONDUCT.—The term "intentional misconduct" means conduct by a person with knowledge (at the time of the conduct) that the conduct is harmful to the health or well-being of another person. (9) NONPROFIT ORGANIZATION.—The term "nonprofit organization" means an incorporated or unincorporated entity that —- (A) is operating for religious, charitable, or educational purposes; and (B) does not provide net earnings to, or operate in any other manner that inures to the benefit of, any officer, employee, or shareholder of the entity. (10) PERSON.—The term "person" means an individual, corporation, partnership, organization, association, or governmental entity, including a retail grocer, wholesaler, hotel, motel, manufacturer, restaurant, caterer, farmer, and nonprofit food distributor or hospital. In the case of a corporation, partnership, organization, association, or governmental entity, the term includes an officer, director, partner, deacon, trustee, council member, or other elected or appointed individual responsible for the governance of the entity. (c)LIABILITY FOR DAMAGES FROM DONATED FOOD AND GROCERY PRODUCTS. - A person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals, except that this paragraph shall not apply to an injury to or death of an ultimate user or recipient of the food or grocery product that results from an act or omission of the donor constituting gross negligence or intentional misconduct. (d) COLLECTION OR GLEANING OF DONATIONS.—A person who allows the collection or gleaning of donations on property owned or occupied by the person by gleaners, or paid or unpaid representatives of a nonprofit organization, for ultimate distribution to needy individuals shall not be subject to civil or criminal liability that arises due to the injury of death of the gleaner or representative, except that this paragraph shall not apply to an injury or death that results from an act or omission of the person constituting gross negligence or intentional misconduct. (e) PARTIAL COMPLIANCE.—If some or all of the donated food and grocery products do not meet all quality and labeling standards imposed by Federal, State, and local laws and regulations, the person or gleaner who donates the food and grocery products shall not be subject to civil or criminal liability in accordance with this section if the nonprofit organization that receives the donated food or grocery products- (1) is informed by the donor of the distressed or defective condition of the donated food or grocery products; (2) agrees to recondition the donated food or grocery products to comply with all the quality and labeling standards prior to distribution; and (3) is knowledgeable of the standards to properly recondition the donated food or grocery product. (f) CONSTRUCTION.—This section shall not be construed to create any liability. SEC. 403. EFFECT OF SECTION. 402 The model Good Samaritan Food Donation Act (provided in section 402) is intended only to serve as a model law for enactment by the States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States. The enactment of section 402 shall have no force or effect in law. Website Design Copyright © 2005 CharityAdvantage.com FOOD AND GROCERY PRODUCT DONATIONS LIABILITY On October 1, 1996, former President Clinton signed Public Law 104-210, enacting the Bill Emerson Good Samaritan Food Donation Act to encourage the donation of food and grocery products to non-profit organizations for distribution to needy individuals. This law promotes food recovery by limiting the liability of donors. Here's how: • It reduces liability risks of donors when donating food or grocery products to non-profit organization. • It provides protection from civil and criminal liability should the product donated in good faith later cause harm to the needy recipient, except in certain cases. • It establishes a liability floor of "gross negligence" or "intentional misconduct" for persons who donate food or grocery products. (See text of Act below for these and other definitions.) • Congress recognized that the provision of food close to the date of recommended retail sale, in and of itself, is not grounds for finding gross negligence. For example, an undamaged box of cereal can be donated just before or even just after the date for retail sale and be safe for consumption. The above information and the text of the Act below, are provided as general information. Each person or organization should consult with their own advisers and legal counsel to evaluate the application, benefits and effect of the Act to their own circumstances and the nature of any anticipated donation of food or grocery products. -CITE- 42 USC Sec. 1791 01/26/98 TITLE 42 - THE PUBLIC HEALTH AND WELFARE CHAPTER 13A - CHILD NUTRITION Sec. 1791.Bill Emerson Good Samaritan Food Donation Act - STATUTE- (a) Short title This section may be cited as the ''Bill Emerson Good Samaritan Food Donation Act''. (b) Definitions As used in this section: (1) Apparently fit grocery product The term ''apparently fit grocery product'' means a grocery product that meets all quality and labeling standards imposed by Federal, State, and local laws and regulations even though the product may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions. (2) Apparently wholesome food The term ''apparently wholesome food'' means food that meets 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. (3) Donate The term ''donate'' means to give without requiring anything of monetary value from the recipient, except that the term shall include giving by a nonprofit organization to another nonprofit organization, notwithstanding that the donor organization has charged a nominal fee to the donee organization, if the ultimate recipient or user is not required to give anything of monetary value. (4) Food The term ''food'' means any raw, cooked, processed, or prepared edible substance, ice, beverage, or ingredient used or intended for use in whole or in part for human consumption. (5) Gleaner The term ''gleaner'' means a person who harvests for free distribution to the needy, or for donation to a nonprofit organization for ultimate distribution to the needy, an agricultural crop that has been donated by the owner. (6) Grocery product The term ''grocery product'' means a nonfood grocery product, including a disposable paper or plastic product, household cleaning product, laundry detergent, cleaning product, or miscellaneous household item. (7) Gross negligence The term ''gross negligence'' means 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. (8) Intentional misconduct The term ''intentional misconduct'' means conduct by a person with knowledge (at the time of the conduct) that the conduct is harmful to the health or well-being of another person. (9) Nonprofit organization The term ''nonprofit organization'' means an incorporated or unincorporated entity that - (A) is operating for religious, charitable, or educational purposes; and (B) does not provide net earnings to, or operate in any other manner that inures to the benefit of, any officer, employee, or shareholder of the entity. (10) Person The term ''person'' means an individual, corporation, partnership, organization, association, or governmental entity, including a retail grocer, wholesaler, hotel, motel, manufacturer, restaurant, caterer, farmer, and nonprofit food distributor or hospital. In the case of a corporation, partnership, organization, association, or governmental entity, the term includes an officer, director, partner, deacon, trustee, council member, or other elected or appointed individual responsible for the governance of the entity. (c) Liability for damages from donated food and grocery products (1) Liability of person or gleaner A person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals. (2) Liability of nonprofit organization A nonprofit organization shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals. (3) Exception Paragraphs (1) and (2) shall not apply to an injury to or death of an ultimate user or recipient of the food or grocery product that results from an act or omission of the person, gleaner, or nonprofit organization, as applicable, constituting gross negligence or intentional misconduct. (d) Collection or gleaning of donations A person who allows the collection or gleaning of donations on property owned or occupied by the person by gleaners, or paid or unpaid representatives of a nonprofit organization, for ultimate distribution to needy individuals shall not be subject to civil or criminal liability that arises due to the injury or death of the gleaner or representative, except that this paragraph shall not apply to an injury or death that results from an act or omission of the person constituting gross negligence or intentional misconduct. (e) Partial compliance If some or all of the donated food and grocery products do not meet all quality and labeling standards imposed by Federal, State, and local laws and regulations, the person or gleaner who donates the food and grocery products shall not be subject to civil or criminal liability in accordance with this section if the nonprofit organization that receives the donated food or grocery products - (1) is informed by the donor of the distressed or defective condition of the donated food or grocery products; (2) agrees to recondition the donated food or grocery products to comply with all the quality and labeling standards prior to distribution; and (3) is knowledgeable of the standards to properly recondition the donated food or grocery product. (f) Construction This section shall not be construed to create any liability. Nothing in this section shall be construed to supercede State or local health regulations. The Good Samaritan Food Donation Act P.L. 104-210 "An act to encourage the donation of food and grocery products to non-profit organizations for distribution to needy individuals." The Bill Emerson Good Samaritan Food Donation Act is a new federal law which protects those who donate food in good faith from civil or criminal liability should such donated food later cause harm to a recipient. Liability protection is not extended to donors in instances of gross negligence (defined) or intentional misconduct. What does the new law do? The new Good Samaritan Food Donation Act provides a uniform, national standard of liability protection to individuals, businesses and non-profit organizations that act in good faith to donate and distribute food to needy people. The new Good Sam Act converts the Model Act into permanent law and preempts existing State Good Sam statutes. Previously, the Model Act was used by each of the fifty states to develop their own versions of product liability protection for food donors. Every state had Good Sam legislation, but varied in degree of coverage, including the types of food covered, definitions of donors, good faith, and limit of protection. The new Good Sam law standardizes the liability exposure of donors and non-profits. What is the liability limit? The Good Sam law sets a liability floor of "gross negligence" for persons who donate food. Gross negligence is defined as: "voluntary and conscious conduct by a person with knowledge (at the time of conduct) that the conduct is likely to be harmful to the health or well-being of another person." If product is past code, or close to code, is there still protection? The Congress recognized that the provision of food that is close to the date of recommended retail sale is, in and of itself, not grounds for finding gross negligence. Instead gross negligence of a donor should depend upon many factors. For example, the type of food involved in the donation impacts on whether or not the action constitutes gross negligence. A box of cereal that is donated just before or just after the code date for retail sale would be perfectly safe for consumption and thus protected by the new Good Sam law. 1The Bill Emerson Good Samaritan Food Donation Act, P.L. 104-210. Enacted 10/1/96 and transferred to Sec. 22 of the Child Nutrition Act of 1966. Please see House Report 104-661. It is recommended that donors consult counsel before making a determination of liability protection under the new Good Samaritan Food Donation Act. The Federal Bill Emerson Good Samaritan Food Donation Act On October 1, 1996, then-President Clinton signed this act to encourage donation of food and grocery products to non-profit organizations for distribution to needy individuals. This law: • Protects you from liability when you donate to a non-profit organization • Protects you from civil and criminal liability should the product donated in good faith later cause harm to the needy recipient. • Standardizes donor liability exposure. You or your legal counsel no longer have to investigate liability laws in 50 states. • Sets a floor of "gross negligence" or intentional misconduct for persons who donate grocery products. According to the new law, gross negligence is defined as "voluntary and conscious conduct by a person with knowledge (at the time of conduct) that the conducts is likely to be harmful to the health or well-being of another person." The text of the bill itself follows: The Bill Emerson Food Donation Act One Hundred Fourth Congress of the United States of America At the Second Session Begun and held at the City of Washington on Wednesday, the third day of January, one thousand nine hundred and ninety-six. An Act To encourage the donation of food and grocery products to nonprofit organizations for distribution to needy individuals by giving the Model Good Samaritan Food Donation Act the full force and effect of law. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Section 1. CONVERSION TO PERMANENT LAW OD MODEL GOOD SAMARITAN FOOD DONATION ACT AND TRANSFER OF THAT ACT TO CHILD NUTRITION ACT OF 1966. (a) Conversion to Permanent Law. -- Title IV of the National and Community Service Act of 1990 is amended -- 1. by striking the title heading and sections 401 and 403 (42 U.S.C. 12671 and 12673); and 2. in section 402 (42 U.S.C. 12672) -- (A) in the section heading, by striking "model" and inserting "bill emerson" (B) in subsection (a), by striking "Good Samaritan" and inserting "Bill Emerson Good Samaritan:" (C) in subsection (b)(7), to read as follows: "(7) GROSS NEGLIGENCE. -- The term 'gross negligence' means 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."; (D) by striking subsection (c) and inserting the following: "(c) LIABILITY FOR DAMAGES FROM DONATED FOOD AND GROCERY PRODUCTS. "(1) LIABILITY OF PERSON OR GLEANER. -- A person or gleaner shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals. "(2) LIABILITY OF NONPROFIT ORGANIZATION. -- A nonprofit organization shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food or an apparently fit grocery product that the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals. "(3) EXCEPTION. -- Paragraphs (1) and (2) shall not apply to an injury to or death of an ultimate user or recipient of the food or grocery product that results from an act or omission of the person, gleaner or nonprofit organization, as applicable, constituting gross negligence or intentional misconduct."; and (E) in subsection (f), by adding at the end the following: "Nothing in this section shall be construed to supersede State or local health regulations.". (b) TRANSFER TO CHILD NUTRITION ACT OF 1966. -- Section 402 of the National and Community Service Act of 1990 (42 U.S.C. 12762) (as amended by subsection (a)) -- 1. is transferred from the National and Community Service Act of 1990 to the Child Nutrition Act of 1966; 2. is redesignated as section 22 of the Child Nutrition Act of 1966; and 3. is added at the end of such Act. (c) CONFORMING AMENDMENT. -- The table of contents for the National and Community Service Act of 1990 is amended by striking the items relating to title IV. Newt Gingrich Speaker of the House of Representatives Strom Thurmond President of the Senate Pro Tempore Approved 10/01/96 William J. Clinton President of the United States P.L. 104-210