Existing law specifies that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food.

This bill, the California Good Samaritan Food Donation Act, would expand these provisions to persons and gleaners who donate food, as defined. The bill would narrow the exception to protection from liability to injury resulting from gross negligence or intentional misconduct. The bill would specify that the immunity from civil liability provided by these provisions applies to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would authorize food facilities to donate food directly to end recipients for consumption.

Existing law specifies that a nonprofit charitable organization or food bank is not liable for an injury or death from distributing food without charge that is fit for human consumption unless the injury or death is a direct result of negligence, recklessness, or intentional misconduct.

This bill would narrow the exception to protection from liability to injury or death as a direct result of gross negligence or intentional misconduct.

Existing law authorizes a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that it may be used as food for human beings, to a nonprofit charitable organization. Existing law limits the liability of a county, its agencies, and persons who donate agricultural products. Existing law provides that these provisions do not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of an agricultural product, as a result of receiving, accepting, gathering, or removing any donated agricultural product.

This bill would expand this provision to include a gleaner and also authorize food facilities to donate food directly to end recipients for consumption. The bill would specify that these donations are protected under this act if the donated food has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would repeal these provisions relating to not relieving nonprofit charitable organizations from liability for injuries.

Existing law authorizes a food facility to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. Existing law exempts a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation.

This bill would also authorize a person or gleaner to donate food to a food bank or to a nonprofit charitable organization and exempt the person or gleaner from civil or criminal liability relating to the donated food. The bill would also expand these provisions to include the donation of food by food facilities directly to end recipients. The bill would specify that the immunity from civil or criminal liability or penalty applies to the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would require enforcement officers to promote the recovery of food fit for human consumption, as specified. Because the bill would require local officials to perform additional duties, the bill would impose a state-mandated local program. The bill would make other conforming and nonsubstantive changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law specifies that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food.

This bill, the California Good Samaritan Food Donation Act, would expand these provisions to persons and gleaners who donate food, as defined. The bill would narrow the exception to protection from liability to injury resulting from gross negligence or intentional misconduct. The bill would specify that the immunity from civil liability provided by these provisions applies to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would authorize food facilities to donate food directly to end recipients for consumption.

Existing law specifies that a nonprofit charitable organization or food bank is not liable for an injury or death from distributing food without charge that is fit for human consumption unless the injury or death is a direct result of negligence, recklessness, or intentional misconduct.

This bill would narrow the exception to protection from liability to injury or death as a direct result of gross negligence or intentional misconduct.

Existing law authorizes a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that it may be used as food for human beings, to a nonprofit charitable organization. Existing law limits the liability of a county, its agencies, and persons who donate agricultural products. Existing law provides that these provisions do not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of an agricultural product, as a result of receiving, accepting, gathering, or removing any donated agricultural product.

This bill would expand this provision to include a gleaner and also authorize food facilities to donate food directly to end recipients for consumption. The bill would specify that these donations are protected under this act if the donated food has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would repeal these provisions relating to not relieving nonprofit charitable organizations from liability for injuries.

Existing law authorizes a food facility to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. Existing law exempts a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation.

This bill would also authorize a person or gleaner to donate food to a food bank or to a nonprofit charitable organization and exempt the person or gleaner from civil or criminal liability relating to the donated food. The bill would also expand these provisions to include the donation of food by food facilities directly to end recipients. The bill would specify that the immunity from civil or criminal liability or penalty applies to the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would require enforcement officers to promote the recovery of food fit for human consumption, as specified. Because the bill would require local officials to perform additional duties, the bill would impose a state-mandated local program. The bill would make other conforming and nonsubstantive changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law specifies that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food.

This bill, the California Good Samaritan Food Donation Act, would expand these provisions to persons and gleaners who donate food, as defined. The bill would narrow the exception to protection from liability to injury resulting from gross negligence or intentional misconduct. The bill would specify that the immunity from civil liability provided by these provisions applies to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would authorize food donors that are required to comply with state and local food safety requirements facilities to donate food directly to end recipients for consumption.

Existing law specifies that a nonprofit charitable organization or food bank is not liable for an injury or death from distributing food without charge that is fit for human consumption unless the injury or death is a direct result of negligence, recklessness, or intentional misconduct.

This bill would narrow the exception to protection from liability to injury or death as a direct result of gross negligence or intentional misconduct.

Existing law authorizes a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that it may be used as food for human beings, to a nonprofit charitable organization. Existing law limits the liability of a county, its agencies, and persons who donate agricultural products. Existing law provides that these provisions do not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of an agricultural product, as a result of receiving, accepting, gathering, or removing any donated agricultural product.

This bill would expand this provision to include a gleaner and also authorize food facilities to donate food directly to end recipients for consumption. The bill would specify that these donations are protected under this act if the donated food has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would repeal these provisions relating to not relieving nonprofit charitable organizations from liability for injuries.

Existing law authorizes a food facility to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. Existing law exempts a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation.

This bill would also authorize a person or gleaner to donate food to a food bank or to a nonprofit charitable organization and exempt the person or gleaner from civil or criminal liability relating to the donated food. The bill would also expand these provisions to include the donation of food by food facilities directly to end recipients. The bill would specify that the immunity from civil or criminal liability or penalty applies to the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would require enforcement officers to promote the recovery of food fit for human consumption, as specified. Because the bill would require local officials to perform additional duties, the bill would impose a state-mandated local program. The bill would make other conforming and nonsubstantive changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law specifies that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food.

This bill, the California Good Samaritan Food Donation Act, would expand these provisions to persons and gleaners who donate food, as defined. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would narrow the exception to protection from liability to injury resulting from gross negligence or intentional misconduct. The bill would specify that the immunity from civil liability provided by these provisions applies to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the donee person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would authorize food donors that are required to comply with state and local food safety requirements to donate food directly to end recipients for consumption.

Existing law specifies that a nonprofit charitable organization or food bank is not liable for an injury or death from distributing food without charge that is fit for human consumption unless the injury or death is a direct result of negligence, recklessness, or intentional misconduct.

This bill would narrow the exception to protection from liability to injury or death as a direct result of gross negligence or intentional misconduct.

Existing law authorizes a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that it may be used as food for human beings, to a nonprofit charitable organization. Existing law limits the liability of a county, its agencies, and persons who donate agricultural products. Existing law provides that these provisions do not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of an agricultural product, as a result of receiving, accepting, gathering, or removing any donated agricultural product.

This bill would expand this provision to include a gleaner and specify that these donations are protected under this act if the donated food has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the donee person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would repeal these provisions relating to not relieving nonprofit charitable organizations from liability for injuries.

Existing law authorizes a food facility to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. Existing law exempts a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation.

This bill would also authorize a person or gleaner to donate food to a food bank or to a nonprofit charitable organization and exempt them the person or gleaner from civil or criminal liability relating to the donated food. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would specify that the immunity from civil or criminal liability or penalty applies to the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the donee person that distributes the food to the end recipient makes a good faith evaluation that the food is wholesome. The bill would require enforcement officers to promote the recovery of food fit for human consumption, as specified. Because the bill would require local officials to perform additional duties, the bill would impose a state-mandated local program. The bill would make other conforming and nonsubstantive changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law specifies that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food.

This bill, the California Good Samaritan Food Donation Act, would expand these provisions to persons and gleaners who donate food, as defined. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would narrow the exception to protection from liability to injury resulting from gross negligence or intentional misconduct. The bill would specify that the immunity from civil liability provided by these provisions applies to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome.

Existing law specifies that a nonprofit charitable organization or food bank is not liable for an injury or death from distributing food without charge that is fit for human consumption unless the injury or death is a direct result of negligence, recklessness, or intentional misconduct.

This bill would narrow the exception to protection from liability to injury or death as a direct result of gross negligence or intentional misconduct.

Existing law authorizes a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that it may be used as food for human beings, to a nonprofit charitable organization. Existing law limits the liability of a county, its agencies, and persons who donate agricultural products. Existing law provides that these provisions do not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of an agricultural product, as a result of receiving, accepting, gathering, or removing any donated agricultural product.

This bill would expand this provision to include a gleaner and specify that these donations are protected under this act if the donated food has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome. The bill would repeal these provisions relating to not relieving nonprofit charitable organizations from liability for injuries.

Existing law authorizes a food facility to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. Existing law exempts a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation.

This bill would also authorize a person or gleaner to donate food and exempt them from civil or criminal liability relating to the donated food. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would specify that the immunity from civil or criminal liability or penalty applies to the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome. The bill would require enforcement officers to promote the recovery of food fit for human consumption in implementing these provisions by requiring them to include specified language on a food facility inspection report, consumption, as specified. Because the bill would require local officials to perform additional duties, the bill would impose a state-mandated local program. The bill would make other conforming and nonsubstantive changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law specifies that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food.

This bill, the California Good Samaritan Food Donation Act, would expand these provisions to persons and gleaners who donate food, as defined. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would narrow the exception to protection from liability to injury resulting from gross negligence or intentional misconduct. The bill would specify that the immunity from civil liability provided by these provisions applies to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome.

Existing law specifies that a nonprofit charitable organization or food bank is not liable for an injury or death from distributing food without charge that is fit for human consumption unless the injury or death is a direct result of negligence, recklessness, or intentional misconduct.

This bill would narrow the exception to protection from liability to injury or death as a direct result of gross negligence or intentional misconduct.

Existing law authorizes a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that it may be used as food for human beings, to a nonprofit charitable organization. Existing law limits the liability of a county, its agencies, and persons who donate agricultural products. Existing law specifies that this provision shall provides that these provisions do not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of an agricultural product, as a result of receiving, accepting, gathering, or removing any donated agricultural product.

This bill would expand this provision to include a gleaner and specify that these provisions apply to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled. donations are protected under this act if the donated food has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome. The bill would remove repeal these provisions relating to not relieving nonprofit charitable organizations from liability for injuries.

Existing law authorizes a food facility to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. Existing law exempts a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation.

This bill would also authorize a person or gleaner to donate food and exempt them from civil or criminal liability relating to the donated food. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would specify that the immunity from civil or criminal liability or penalty applies to the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome. The bill would require enforcement officers to promote the recovery of food fit for human consumption in implementing these provisions by requiring them to include specified language on a food facility inspection report, as specified. Because the bill would require local officials to perform additional duties, the bill would impose a state-mandated local program. The bill would make other conforming and nonsubstantive changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law specifies that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food.

This bill, the California Good Samaritan Food Donation Act, would expand these provisions to persons and gleaners who donate food, as defined. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would narrow the exception to protection from liability to injury resulting from gross negligence or a willful act. intentional misconduct. The bill would specify that the immunity from civil liability provided by these provisions applies to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled. manufacturer, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome.

Existing law authorizes a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that it may be used as food for human beings, to a nonprofit charitable organization. Existing law limits the liability of a county, its agencies, and persons who donate agricultural products. Existing law specifies that this provision shall not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of an agricultural product, as a result of receiving, accepting, gathering, or removing any donated agricultural product.

This bill would expand this provision to include a gleaner and specify that these provisions apply to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled. The bill would remove provisions relating to not relieving nonprofit charitable organizations from liability for injuries.

Existing law authorizes a food facility to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. Existing law exempts a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation.

This bill would also authorize a person or gleaner to donate food and exempt them from civil or criminal liability relating to the donated food. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would specify that the immunity from civil or criminal liability or penalty applies to the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled. manufacturer, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome. The bill would require enforcement officers to promote the recovery of edible food fit for human consumption in implementing these provisions by requiring them to include specified language on a food facility inspection report, as specified. Because the bill would require local officials to perform additional duties, the bill would impose a state-mandated local program. The bill would make other conforming and nonsubstantive changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law specifies that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food.

This bill, the California Good Samaritan Food Donation Act, would expand these provisions to persons and gleaners who donate food, as defined. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would narrow the exception to protection from liability to injury resulting from gross negligence or a willful act. The bill would specify that the immunity from civil liability provided by these provisions applies to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled.

Existing law authorizes a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that it may be used as food for human beings, to a nonprofit charitable organization. Existing law limits the liability of a county, its agencies, and persons who donate agricultural products. Existing law specifies that this provision shall not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of an agricultural product, as a result of receiving, accepting, gathering, or removing any donated agricultural product.

This bill would expand this provision to include a gleaner and specify that these provisions apply to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled. The bill would remove provisions relating to the liability of not relieving nonprofit charitable organizations. organizations from liability for injuries.

Existing law authorizes a food facility to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. Existing law exempts a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation.

This bill would also authorize a person or gleaner to donate food and exempt them from civil or criminal liability relating to the donated food. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would specify that the immunity from civil or criminal liability or penalty applies to the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled. The bill would require enforcement officers to promote the recovery of edible food for human consumption in implementing these provisions by requiring them to include specified language on a food facility inspection report and on the backside of the publicly facing county food safety score card. report, as specified. Because the bill would require local officials to perform additional duties, the bill would impose a state-mandate state-mandated local program. The bill would make other conforming and nonsubstantive changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law specifies that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food.

This bill, the California Good Samaritan Food Donation Act, would expand these provisions to persons and gleaners who donate food, as defined. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would narrow the exception to protection from liability to injury resulting from gross negligence or a willful act. The bill would specify that the immunity from civil liability provided by these provisions applies to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled.

Existing law authorizes a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that it may be used as food for human beings, to a nonprofit charitable organization. Existing law specifies that this provision shall not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of an agricultural product, as a result of receiving, accepting, gathering, or removing any donated agricultural product.

This bill would expand this provision to include a gleaner and specify that these provisions apply to the donation of food that is fit for human consumption and that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled. The bill would remove provisions relating to the liability of nonprofit charitable organizations.

Existing law authorizes a food facility to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. Existing law exempts a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation.

This bill would also authorize a person or gleaner to donate food and exempt them from civil or criminal liability relating to the donated food. The bill would also expand these provisions to include the donation of food directly to end recipients. The bill would specify that the immunity from civil or criminal liability or penalty applies to the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer or that is mislabeled. The bill would require enforcement officers to promote the recovery of edible food for human consumption in implementing these provisions by requiring them to include specified language on a food facility inspection report and on the backside of the publicly facing county food safety score card. Because the bill would require local officials to perform additional duties, the bill would impose a state-mandate local program. The bill would make other conforming and nonsubstantive changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1219

Author:(Eggman)

As Amended Ver:September 5, 2017

Majority vote

Original Committee Reference: JUD.

SUMMARY: Expands existing provisions of the Civil Code, Food and Agricultural Code, and Health and Safety Code, relating to civil immunities and liabilities of entities that donate food fit for human consumption, to charitable organizations and food banks. Specifically, this bill:

1. Provides that no person, gleaner, or food facility that donates food that is fit for human consumption to a nonprofit charitable organization, a food bank, or directly to end users shall be civilly liable for any damage or injury resulting from the consumption of donated food, unless the damage or injury is a direct result of the gross negligence or willful misconduct of the donor. Specifies (consistent with existing law) that this qualified immunity from civil liability applies regardless of compliance with laws and regulations regarding the packaging or labeling of food, and regardless of compliance with laws and regulations regarding the storage and handling of the food by the donee after the donation of the food.
2. Specifies that the donation of food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the provisions of this bill, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome.
3. Provides that a person or gleaner engaged in the business of processing, distributing, or selling an agricultural product may donate a product that is fit for human beings to a nonprofit charitable organization within the state or directly to end recipients. Specifies that the donation of nonperishable food that is fit for human consumption but that has exceeded the labeled shelf life date is protected by this bill, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome.
4. Provides that a person, gleaner, or food facility may donate food directly to end recipients, to a food bank, or to any other nonprofit charitable organizations for distribution to persons. Specifies that a person, gleaner, or food facility that donates food pursuant to this provision shall not be subject to civil or criminal liability for violation of any laws or regulations regulating the labeling or packaging of the donated product, or for a violation occurring after the time of the donation.
5. Requires health enforcement officers to promote the recovery of edible food for human consumption, as specified.

The Senate amendments

1. Specify, where appropriate, that a "donee" refers to the person that distributes foods to the end recipient.
2. Eliminate certain prescribed language that must be on an enforcement officer's inspection report.
3. Clarify that a food facility may donate directly to an end recipient.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: Both federal and California law have recognized that fear of liability can discourage food donations. For example, the federal "Bill Emmerson Good Samaritan Food Donation Act of 1996" provides that a person or "gleaner" who, in good faith, donates "apparently wholesome" food to a nonprofit organization is not liable for any harm caused by the food, unless the harm was caused by the gross negligence or intentional misconduct of the donor. The Emmerson Act also protects from liability the nonprofit organization that, in good faith, receives and distributes food to needy persons, unless the harm is caused by gross negligence or intentional misconduct of the recipient or distributor.

California Food Donations Laws: About 20 years before Congress enacted the Emmerson Act, California enacted legislation that offered "qualified" immunity (i.e. no liability except for acts of gross negligence or willful misconduct) to donors of food; it also granted a tax deduction equal to the cost of the donated food. In subsequent years, the Legislature added similar provisions to the Food & Agricultural Code (specifically for agricultural products) and to the Health & Safety Code (for a "food facility," as defined by the Health & Safety Code.) As a result of these several measures, California's food donation law is now scattered among the Civil Code, Food & Agricultural Code, and the Health & Safety Code. In general these measures, like the federal law, provide qualified immunity to persons or organizations that donate food products to be used by needy persons, "free of charge" or "without charge." The common goal of these several statutes is to encourage food donation by providing some relief from liability for the potential harm of tainted food to persons who ultimately consume the food.

Alleged Limitations of Existing Law: In addition to the lack of clarity and consistency in the several food donation statutes, the author and co-sponsors contend that existing law – both state and federal – is inadequate in at least three ways. First, while federal law generally applies to all persons – including "gleaners" who typically rescue rejected produce that is still fit for human consumption – California law only affords immunity to food banks and nonprofit charitable organizations. Second, both state and federal law primarily affords protection to persons or entities that donate food to food banks or charitable organizations for eventual human consumption, but does not generally afford immunity for donations made directly to end users. Third, existing law does not extend immunity to donations of food that exceeds a manufacturer's or packager's "shelf life" date.

The bill distinguishes between perishable and nonperishable foods that exceed a labeled shelf life date. Extending immunity to donations of food that exceeds the "shelf life" date seems particularly important to the co-sponsors and most, if not all, of the bill's many supporters. The "shelf life" date typically takes the form of a "sell by," "use by," or "best used by" date that appears on the food packaging. By not authorizing or granting immunity for donated food that has exceeded its shelf life date, existing law results in much wholesome food going to landfills, instead of to needy people. However, it is important to note that some "shelf life" or "use by" dates may indicate that the food product is unsafe if consumed after that date. This is especially true of perishable foods, especially meats, unless they are frozen before the expiration date. However, just as often, the "shelf life" date speaks not to the safety but to the quality of the food. For example, using a package of dried pasta after a "best used by date" is not unsafe, even if the quality of the market is marginally diminished. In order to better distinguish between the donation of perishable and nonperishable foods beyond a shelf life date, the bill provides qualified immunity for the donation of nonperishable foods that exceed the manufacturer's recommended shelf life date. However, qualified immunity will only be extended to donations of nonperishable foods that have exceeded the shelf life date if the donor makes a good faith evaluation that the donated food is wholesome and fit for human consumption.

"Qualified" Immunity for Good Samaritans: Existing Civil Code Section 1714.25 purports to grant immunity from civil liability to a food donor, "except for injury resulting from negligence or a willful act." [Emphasis added.] The Legislature has, on several occasions, offered "qualified" or "limited" immunity to "good Samaritans" in order to encourage people to take selfless and charitable actions to help others, without any expectation of reward or compensation. Because as a matter of public policy the state wants people to come to the aid of others, albeit in a responsible manner, the Legislature has offered "qualified" immunity to "good Samaritans" in various contexts. On the other hand, we do not want an overzealous rescuer to act in such a reckless manner that the rescue results in greater harm to the person who is rescued than would have occurred in the event that there had been no rescue attempt at all.

Similarly, while we want to encourage people to donate food to people in need, we do not want them to do so with such reckless disregard for the safety of the donated food that food which is obviously not fit for human consumption is donated, or to donate food they know or should know is not fit for human consumption.

Immunity restricted to persons and entities who donate food free of charge. The other approach that this Committee has consistently endorsed is only granting "good Samaritan" immunity to persons who engage in the good act without compensation. For example, the statute granting qualified immunity to a person rendering emergency cardiopulmonary resuscitation (CPR) does not apply to any person who renders such care "with the expectation of receiving compensation from the individual for providing the emergency care." (Civil Code Section 1714.2.) The statute that grants qualified immunity to a person who renders emergency care with the use of an AED (automated external defibrillator) likewise only applies to a person who "in good faith and not for compensation, renders emergency care . . . by use of an AED at the scene of an emergency." (Civil Code Section 1714.21.) Immunity for a person who renders aid by use of an Epinephrine Auto-Injector ("Epi-Pen") similarly only applies when the person who administers the device does so "in good faith and not for compensation." (Civil Code Section 1714.23.) California's general Good Samaritan law, that grants qualified immunity to a person rendering medical or non-medical aid at the scene of an emergency–regardless of what device is used, if any–also restricts its application to persons who act in "good faith, and not for compensation." (Health & Safety Code Section 1799.102) Not surprisingly, the food donations statutes that this bill seeks to amend restrict immunity to person's who act "without charge" or "free of charge." (See e.g. Civil Code Section 1714.25 (b); Food & Agricultural Code Section 58502 (a); Health & Safety Code Section 114432 (a).) Consistent with these principals, this bill would restrict good Samaritan immunity to persons who act "without charge" and "not for compensation."

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0001894

 THIRD READING 

Bill No: AB 1219

Author:

Amended: 9/5/17 in Senate

Vote:

SENATE HEALTH COMMITTEE: 9-0, 6/21/17

AYES: Hernandez, Nguyen, Atkins, Leyva, Mitchell, Monning, Newman, Nielsen, Roth

SENATE JUDICIARY COMMITTEE: 7-0, 7/11/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 5/4/17 - See last page for vote

SUBJECT:

SOURCE: California Association of Food Banks

Californians Against Waste

DIGEST:

This bill enacts the California Good Samaritan Food Donation Act, which strengthens immunity protections for the donation of food, extends this immunity protection to other entities that donate food, rather than just food facilities, and requires local food facility enforcement officers to promote the recovery of food fit for human consumption during their routine inspections with handouts describing the immunity provisions association with the donation of food.

Senate Floor Amendments of 9/5/17 delete language that limited the types of entities that could donate food directly to end recipients to “food donors that are required to comply with state or local food safety requirements,” and instead permits “food facilities” to donate food directly to end recipients..

ANALYSIS:

Existing law:

1. Establishes the California Retail Food Code (CRFC), which governs all aspects of retail food safety and sanitation in California under the CRFC. Specifies that primary responsibility for enforcement of the CRFC is with local enforcement agencies.
2. Permits food facilities to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge.
3. Provides food facilities that donate food to a nonprofit charitable organization or a food bank with immunity from civil liability for any damage or injury resulting from the consumption of the donated food, except for injuries resulting from negligence or a willful act in the preparation or handling of donated food.
4. Provides nonprofit charitable organizations or food banks that, in good faith, receive and distribute food without charge with immunity from civil liability for an injury or death due to the food unless the injury or death is a direct result of the negligence, recklessness, or intentional misconduct of the organization.
5. Defines “gleaner” as a person who legally gathers remnants of an agricultural crop or harvests part of, or all of, an agricultural crop made available by the owner of the agricultural crop.
6. Permits any person engaged in the business of processing, distributing, or selling any agricultural product to donate, free of charge, any product which is in a condition that it may be used as food for human beings, to a nonprofit charitable organization.

This bill:

1. Expands the immunity from civil liability that is provided related to the donation of food by doing the following:
   1. Extending the immunity for donors beyond food facilities to include persons, which is defined broadly to include businesses or government entities, and to gleaners, as defined; and, by permitting food facilities to donate food directly to end recipients.
   2. Limiting the exceptions to the immunity provisions to injuries resulting from gross negligence or intentional misconduct, rather than just negligence or a willful act.
   3. Specifying that the donation of nonperishable food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected by the immunity provisions, and the donation of perishable food that has exceeded the labeled shelf life date is protected by the immunity provisions if the person that distributes the food to the end recipient makes a good faith evaluation that the food to be donated is wholesome.
2. Requires local environmental health enforcement officers to promote the recovery of food fit for human consumption during their normal, routine inspections, and requires this promotion to include, but not be limited to, newsletters, bulletins, and handouts that inform retail food facility operators about the protections from civil and criminal liability when donating food.
3. Defines “gleaner,” for purposes of this bill and existing immunity provisions, as a person who harvests an agricultural crop that has been donated by the owner for free distribution to the needy, or for donation to a nonprofit organization for ultimate distribution to the needy.
4. Defines “person,” for purposes of this bill and existing immunity provisions, as an individual, school, local educational agency, corporation, partnership, limited liability company, organization, association, or government entity, including a retail grocer, wholesaler, hotel, motel, manufacturer, restaurant, caterer, farmer, nonprofit food distributor or hospital. Specifies that in the case of a corporation, partnership, organization, association, or governmental entity, “person” includes an officer, director, partner, manager or managing member, deacon, trustee, council member, or other elected or appointed individual responsible for the governance of the entity.
5. Adds gleaners to provisions of the law permitting the donation of an agricultural product to a nonprofit charitable organization, and also permits food facilities to donate food directly to end recipients.
6. Repeals a provision of law in the Food and Agricultural Code related to food donation that specifies that nothing in those provisions provide any immunity from civil liability for injuries resulting from receiving a donated agricultural product, which is in conflict with provisions of the Civil Code providing civil immunity for donated food.
7. Adds gleaners and persons, as each of these terms are defined by this bill, to a provision of law exempting a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product, or to any other laws that might be violated after the time of the donation.
8. Makes various legislative findings and declarations, including that much of the edible, surplus, wholesome food in the state is discarded, and that many food donors cite fear of liability as one of the top barriers to donating to organizations that seek to redistribute food to individuals in need, and that it is the public policy of the state that food donations be highly encouraged.
9. Makes technical and conforming changes to various provisions of law.

Comments

1. Author’s statement. According to the author, one in every eight Californians suffers from food insecurity, yet much of the state’s surplus food is discarded. Food manufacturers, retailers, and restaurants frequently cite a fear of liability as a barrier to their donation of surplus food. Existing protections are too limited and unclear to sufficiently encourage donation as intended. Current law is not explicit about whether food donated past its sell-by-date is covered by existing protections and prohibits the direct donation of food from its source, requiring an intermediary. This bill will expand protections to gleaners, wholesome food donated past its sell-by-date, and food donated directly to end users. It will also educate potential donors about the protections they enjoy under the law. By explicitly stating what kinds of food donations are protected, the bill will reassure donors that they are, in fact, protected.
2. Federal Emerson Act and food donation immunity. The federal Bill Emerson Good Samaritan Food Donation Act (Emerson Act) was enacted in 1996 to provide civil immunity protections to encourage food donation to nonprofit organizations. The Emerson Act states that no person should be subject to civil or criminal liability arising from the condition of apparently wholesome food or an apparently fit grocery product that is donated in good faith to a nonprofit organization for distribution to needy individuals, and provides this same protection to the nonprofit organizations that receive the food. The Emerson Act specifies that these immunity protections do not apply to an injury or death that results from an act or omission that constitutes gross negligence or intentional misconduct. However, the Emerson Act requires that donated food products meet all quality and labeling standards imposed by federal, state and local laws in order to qualify for the immunity provisions. According to the Public Health Law Center, the federal Department of Justice has interpreted the Emerson Act as partially preempting state laws by setting a base floor of liability protection, while the states are free to offer higher levels of liability protection. California’s liability protections for food donation precede the Emerson Act, and offer less protection in certain respects, and more protection in other respects. Among other provisions, this bill raises the California standard to “gross negligence,” matching the Emerson Act, and additional specifically applies this immunity to food that has exceeded the “sell by” date on the food package.
3. The problem of food waste. There have been numerous reports and studies looking at the abundance of food produced in the United States and the amount of safe food that ends up in landfills. The Natural Resources Defense Council issued a report in March of this year, entitled Don’t Waste, Donate: Enhancing Food Donations Through Federal Policy. According to this report, 40% of the U.S. food supply goes uneaten, resulting in at least 62.5 million tons of wasted food each year, and uneaten food is the single largest contributor of solid waste in our nation’s landfills. The Food Waste Reduction Alliance, which is a joint project of the Food Marketing Institute, the Grocery Manufacturers Association, and the National Restaurant Association, conducts a survey every two years to collect data from food manufacturers, retailers, wholesalers and restaurants in order to understand the current state of food waste. Their most recent survey, published in the Fall of 2016, found that donated food made up only 3.3% of total unsaleable food, and that transportation constraints was the most often cited barrier to donating and recycling. The Harvard Food Law and Policy Clinic issued a report in October of 2016, entitled “Keeping Food Out of the Landfill: Policy Ideas for States and Localities.” This report states that in recent years, state and local governments have sought to increase food recovery by providing state tax incentives to food donors, allocating funding to support food recovery infrastructure, re-evaluating how schools handle food waste, and passing laws that ban organic waste from landfills. With regard to liability protections, the report said states can improve liability protections by clarifying and expanding the federal Emerson Act, including extending protection to organization that sell or otherwise charge for food, when donors donate directly to end-users, and when donors donate past-date foods. Additionally, the report stated that for liability protections to lead to more food recovery, food donors need to know that liability protections exist.

Related/Prior Legislation

AB 234 (Gordon, Chapter 616, Statutes of 2015) revised provisions of law governing community food producers or gleaners by allowing them to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to a permitted food facility, not just a restaurant, and limited the ability of a local environmental health officer to require community food producers or gleaners to register with the local enforcement entity only if the food producers or gleaners do not meet certain conditions.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 9/5/17)

California Association of Food Banks (co-source)

Californians Against Waste (co-source)

Alameda County Community Food Bank

Amy’s Kitchen, Inc.

California Association of Environmental Health Administrators

California Association of Nonprofits

California Food Policy Advocates

California Grocers Association

California League of Food Processors

California Retailers Association

Central Contra Costa Solid Waste Authority

City of Berkeley

City of Sunnyvale

Clean River Alliance

Community Action Agency of Butte County, Inc.

Community Alliance with Family Farmers

Community Food Bank

Emergency Food Bank Stockton/San Joaquin

Environmental Working Group

Feeding San Diego

FIND Food Bank

Food Bank Coalition of San Luis Obispo

Food Bank of Contra Costa and Solano County

Food Finders

Food for People, Inc.

Food Forward

Food Law and Policy Clinic, A Division of the Center for Health Law and Policy Innovation of Harvard Law School

Food Shift

FoodLink of Tulare County

Health Officers Association of California

Imperial Valley Food Bank

Jacobs & Cushman San Diego Food Bank

Kiss the Ground

League of California Cities

Lean Path, Inc.

Los Angeles Food Policy Council

Los Angeles Regional Food Bank

Los Angeles Unified School District

Meet Each Need With Dignity

Merced County Food Bank

Mojave Desert and Mountain Recycling Authority

Napa Recycling & Waste Services

Natural Resources Defense Council

Northern California Recycling Association

Oakland Food Policy Council

Redwood Empire Food Bank

Rural County Representatives of California

Sacramento Food Bank and Family Services

San Diego Food System Alliance

Second Harvest Food Bank, Orange County

Second Harvest Food Bank, San Joaquin & Stanislaus Counties

Second Harvest Food Bank, Santa Clara and San Mateo Counties

Second Harvest Food Bank, Santa Cruz County

SF-Marin Food Bank

Sierra Harvest

Solid Waste Association of North America

Sonoma County Waste Management Agency

St. Francis Center

Stop Waste

Sustain LA

Tri-CED Community Recycling

Urban and Environmental Policy

Western Center on Law & Poverty

Western Growers

Western Placer Waste Management Authority

Yolo Food Bank

Yuba-Sutter Food Bank

OPPOSITION: (Verified 9/5/17)

None received

ARGUMENTS IN SUPPORT: This bill is co-sponsored by Californians Against Waste (CAW) and the California Association of Food Banks (CAFB). CAW states that food is the single most prevalent material in California’s waste stream, with more than 5.5 million tons of food landfilled every year. CAW states that landfilling uneaten food and other organic waste releases more than 8.3 million tons of greenhouse gases each year, contributing 20% of the state’s methane emissions. According to CAW, much of the food currently going to landfills is wholesome and edible. CAFB states that this bill will reduce the amount of food going into California’s food waste stream and increase edible food donations by clarifying that the liability protections apply to donations of foods that may be past their date label, provided they are still safe for human consumption, and by providing the liability protection for donations directly to end-users. Numerous other organizations support this bill. The California Association of Environmental Health Administrators supports the efforts to ensure that local retail food facilities are provided with information that will encourage food waste diversion. The California Retailers Association states that for many years, its members have had strong liability concerns relating to any food borne illnesses or injuries that could result from food donations, and that this bill provides the statutory clarification that they have sought. California Food Policy Advocates states that food donations are an important source of nutrition for many food banks and community-based food pantries, and this bill is an important step towards encouraging individuals and organizations to donate excess food. Other organizations, including many food banks, waste and recycling businesses, environmental organizations, and advocates for the poor, also support this bill, making similar arguments.

ASSEMBLY FLOOR: 74-0, 5/4/17

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Travis Allen, Bigelow, Cristina Garcia, Jones-Sawyer, Patterson, Ridley-Thomas

Prepared by:

9/6/17 16:07:13

**** END ****

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1219

Author:(Eggman)

As Amended Ver:July 18, 2017

Majority vote

Original Committee Reference: JUD.

SUMMARY: Expands existing provisions of the Civil Code, Food and Agricultural Code, and Health and Safety Code, relating to civil immunities and liabilities of entities that donate food fit for human consumption, to charitable organizations and food banks. Specifically, this bill:

1. Provides that no person, gleaner, or food facility that donates food that is fit for human consumption to a nonprofit charitable organization, a food bank, or directly to end users shall be civilly liable for any damage or injury resulting from the consumption of donated food, unless the damage or injury is a direct result of the gross negligence or willful misconduct of the donor. Specifies (consistent with existing law) that this qualified immunity from civil liability applies regardless of compliance with laws and regulations regarding the packaging or labeling of food, and regardless of compliance with laws and regulations regarding the storage and handling of the food by the donee after the donation of the food.
2. Specifies that the donation of food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the provisions of this bill, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome.
3. Provides that a person or gleaner engaged in the business of processing, distributing, or selling an agricultural product may donate a product that is fit for human beings to a nonprofit charitable organization within the state or directly to end recipients. Specifies that the donation of nonperishable food that is fit for human consumption but that has exceeded the labeled shelf life date is protected by this bill, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome.
4. Provides that a person, gleaner, or food facility may donate food directly to end recipients, to a food bank, or to any other nonprofit charitable organizations for distribution to persons. Specifies that a person, gleaner, or food facility that donates food pursuant to this provision shall not be subject to civil or criminal liability for violation of any laws or regulations regulating the labeling or packaging of the donated product, or for a violation occurring after the time of the donation.
5. Requires health enforcement officers to promote the recovery of edible food for human consumption, as specified.

The Senate amendments

1. Specify, where appropriate, that a "donee" refers to the person that distributes foods to the end recipient.
2. Eliminate certain prescribed language that must be on an enforcement officer's inspection report.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: Both federal and California law have recognized that fear of liability can discourage food donations. For example, the federal "Bill Emmerson Good Samaritan Food Donation Act of 1996" provides that a person or "gleaner" who, in good faith, donates "apparently wholesome" food to a nonprofit organization is not liable for any harm caused by the food, unless the harm was caused by the gross negligence or intentional misconduct of the donor. The Emmerson Act also protects from liability the nonprofit organization that, in good faith, receives and distributes food to needy persons, unless the harm is caused by gross negligence or intentional misconduct of the recipient or distributor.

California Food Donations Laws: About 20 years before Congress enacted the Emmerson Act, California enacted legislation that offered "qualified" immunity (i.e. no liability except for acts of gross negligence or willful misconduct) to donors of food; it also granted a tax deduction equal to the cost of the donated food. In subsequent years, the Legislature added similar provisions to the Food & Agricultural Code (specifically for agricultural products) and to the Health & Safety Code (for a "food facility," as defined by the Health & Safety Code.) As a result of these several measures, California's food donation law is now scattered among the Civil Code, Food & Agricultural Code, and the Health & Safety Code. In general these measures, like the federal law, provide qualified immunity to persons or organizations that donate food products to be used by needy persons, "free of charge" or "without charge." The common goal of these several statutes is to encourage food donation by providing some relief from liability for the potential harm of tainted food to persons who ultimately consume the food.

Alleged Limitations of Existing Law: In addition to the lack of clarity and consistency in the several food donation statutes, the author and co-sponsors contend that existing law – both state and federal – is inadequate in at least three ways. First, while federal law generally applies to all persons – including "gleaners" who typically rescue rejected produce that is still fit for human consumption – California law only affords immunity to food banks and nonprofit charitable organizations. Second, both state and federal law primarily affords protection to persons or entities that donate food to food banks or charitable organizations for eventual human consumption, but does not generally afford immunity for donations made directly to end users. Third, existing law does not extend immunity to donations of food that exceeds a manufacturer's or packager's "shelf life" date.

The bill distinguishes between perishable and nonperishable foods that exceed a labeled shelf life date. Extending immunity to donations of food that exceeds the "shelf life" date seems particularly important to the co-sponsors and most, if not all, of the bill's many supporters. The "shelf life" date typically takes the form of a "sell by," "use by," or "best used by" date that appears on the food packaging. By not authorizing or granting immunity for donated food that has exceeded its shelf life date, existing law results in much wholesome food going to landfills, instead of to needy people. However, it is important to note that some "shelf life" or "use by" dates may indicate that the food product is unsafe if consumed after that date. This is especially true of perishable foods, especially meats, unless they are frozen before the expiration date. However, just as often, the "shelf life" date speaks not to the safety but to the quality of the food. For example, using a package of dried pasta after a "best used by date" is not unsafe, even if the quality of the market is marginally diminished. In order to better distinguish between the donation of perishable and nonperishable foods beyond a shelf life date, the bill provides qualified immunity for the donation of nonperishable foods that exceed the manufacturer's recommended shelf life date. However, qualified immunity will only be extended to donations of nonperishable foods that have exceeded the shelf life date if the donor makes a good faith evaluation that the donated food is wholesome and fit for human consumption.

"Qualified" Immunity for Good Samaritans: Existing Civil Code Section 1714.25 purports to grant immunity from civil liability to a food donor, "except for injury resulting from negligence or a willful act." [Emphasis added.] The Legislature has, on several occasions, offered "qualified" or "limited" immunity to "good Samaritans" in order to encourage people to take selfless and charitable actions to help others, without any expectation of reward or compensation. Because as a matter of public policy the state wants people to come to the aid of others, albeit in a responsible manner, the Legislature has offered "qualified" immunity to "good Samaritans" in various contexts. On the other hand, we do not want an overzealous rescuer to act in such a reckless manner that the rescue results in greater harm to the person who is rescued than would have occurred in the event that there had been no rescue attempt at all.

Similarly, while we want to encourage people to donate food to people in need, we do not want them to do so with such reckless disregard for the safety of the donated food that food which is obviously not fit for human consumption is donated, or to donate food they know or should know is not fit for human consumption.

Immunity restricted to persons and entities who donate food free of charge. The other approach that this Committee has consistently endorsed is only granting "good Samaritan" immunity to persons who engage in the good act without compensation. For example, the statute granting qualified immunity to a person rendering emergency cardiopulmonary resuscitation (CPR) does not apply to any person who renders such care "with the expectation of receiving compensation from the individual for providing the emergency care." (Civil Code Section 1714.2.) The statute that grants qualified immunity to a person who renders emergency care with the use of an AED (automated external defibrillator) likewise only applies to a person who "in good faith and not for compensation, renders emergency care . . . by use of an AED at the scene of an emergency." (Civil Code Section 1714.21.) Immunity for a person who renders aid by use of an Epinephrine Auto-Injector ("Epi-Pen") similarly only applies when the person who administers the device does so "in good faith and not for compensation." (Civil Code Section 1714.23.) California's general Good Samaritan law, that grants qualified immunity to a person rendering medical or non-medical aid at the scene of an emergency–regardless of what device is used, if any–also restricts its application to persons who act in "good faith, and not for compensation." (Health & Safety Code Section 1799.102) Not surprisingly, the food donations statutes that this bill seeks to amend restrict immunity to person's who act "without charge" or "free of charge." (See e.g. Civil Code Section 1714.25 (b); Food & Agricultural Code Section 58502 (a); Health & Safety Code Section 114432 (a).) Consistent with these principals, this bill would restrict good Samaritan immunity to persons who act "without charge" and "not for compensation."

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0001360

 CONSENT  

Bill No: AB 1219

Author:

:

Vote:

SENATE HEALTH COMMITTEE: 9-0, 6/21/17

AYES: Hernandez, Nguyen, Atkins, Leyva, Mitchell, Monning, Newman, Nielsen, Roth

SENATE JUDICIARY COMMITTEE: 7-0, 7/11/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 74-0, 5/4/17 - See last page for vote

SUBJECT:

SOURCE: California Association of Food Banks

Californians Against Waste

DIGEST:

This bill enacts the California Good Samaritan Food Donation Act, which strengthens immunity protections for the donation of food, extends this immunity protection to other entities that donate food, rather than just food facilities, and requires local food facility enforcement officers to promote the recovery of food fit for human consumption during their routine inspections with handouts describing the immunity provisions association with the donation of food.

ANALYSIS:

Existing law:

1. Establishes the California Retail Food Code (CRFC), which governs all aspects of retail food safety and sanitation in California under the CRFC. Specifies that primary responsibility for enforcement of the CRFC is with local enforcement agencies.
2. Permits food facilities to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge.
3. Provides food facilities that donate food to a nonprofit charitable organization or a food bank with immunity from civil liability for any damage or injury resulting from the consumption of the donated food, except for injuries resulting from negligence or a willful act in the preparation or handling of donated food.
4. Provides nonprofit charitable organizations or food banks that, in good faith, receive and distribute food without charge with immunity from civil liability for an injury or death due to the food unless the injury or death is a direct result of the negligence, recklessness, or intentional misconduct of the organization.
5. Defines “gleaner” as a person who legally gathers remnants of an agricultural crop or harvests part of, or all of, an agricultural crop made available by the owner of the agricultural crop.
6. Permits any person engaged in the business of processing, distributing, or selling any agricultural product to donate, free of charge, any product which is in a condition that it may be used as food for human beings, to a nonprofit charitable organization.

This bill:

1. Expands the immunity from civil liability that is provided related to the donation of food by doing the following:
   1. Extending the immunity for donors beyond food facilities to include persons, which is defined broadly to include businesses or government entities, and to gleaners, as defined; and, by permitting the donation of food directly to end recipients in the case of donors that are required to comply with state or local food safety requirements.
   2. Limiting the exceptions to the immunity provisions to injuries resulting from gross negligence or intentional misconduct, rather than just negligence or a willful act.
   3. Specifying that the donation of nonperishable food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected by the immunity provisions, and the donation of perishable food that has exceeded the labeled shelf life date is protected by the immunity provisions if the person that distributes the food to the end recipient makes a good faith evaluation that the food to be donated is wholesome.
2. Requires local environmental health enforcement officers to promote the recovery of food fit for human consumption during their normal, routine inspections, and requires this promotion to include, but not be limited to, newsletters, bulletins, and handouts that inform retail food facility operators about the protections from civil and criminal liability when donating food.
3. Defines “gleaner,” for purposes of this bill and existing immunity provisions, as a person who harvests an agricultural crop that has been donated by the owner for free distribution to the needy, or for donation to a nonprofit organization for ultimate distribution to the needy.
4. Defines “person,” for purposes of this bill and existing immunity provisions, as an individual, school, local educational agency, corporation, partnership, limited liability company, organization, association, or government entity, including a retail grocer, wholesaler, hotel, motel, manufacturer, restaurant, caterer, farmer, nonprofit food distributor or hospital. Specifies that in the case of a corporation, partnership, organization, association, or governmental entity, “person” includes an officer, director, partner, manager or managing member, deacon, trustee, council member, or other elected or appointed individual responsible for the governance of the entity.
5. Adds gleaners to provisions of the law permitting the donation of an agricultural product to a nonprofit charitable organization, and also permits food donors that are required to comply with state or local food safety requirements to donate food directly to end recipients.
6. Repeals a provision of law in the Food and Agricultural Code related to food donation that specifies that nothing in those provisions provide any immunity from civil liability for injuries resulting from receiving a donated agricultural product, which is in conflict with provisions of the Civil Code providing civil immunity for donated food.
7. Adds gleaners and persons, as each of these terms are defined by this bill, to a provision of law exempting a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product, or to any other laws that might be violated after the time of the donation.
8. Makes various legislative findings and declarations, including that much of the edible, surplus, wholesome food in the state is discarded, and that many food donors cite fear of liability as one of the top barriers to donating to organizations that seek to redistribute food to individuals in need, and that it is the public policy of the state that food donations be highly encouraged.
9. Makes technical and conforming changes to various provisions of law.

Comments

1. Author’s statement. According to the author, one in every eight Californians suffers from food insecurity, yet much of the state’s surplus food is discarded. Food manufacturers, retailers, and restaurants frequently cite a fear of liability as a barrier to their donation of surplus food. Existing protections are too limited and unclear to sufficiently encourage donation as intended. Current law is not explicit about whether food donated past its sell-by-date is covered by existing protections and prohibits the direct donation of food from its source, requiring an intermediary. This bill will expand protections to gleaners, wholesome food donated past its sell-by-date, and food donated directly to end users. It will also educate potential donors about the protections they enjoy under the law. By explicitly stating what kinds of food donations are protected, the bill will reassure donors that they are, in fact, protected.
2. Federal Emerson Act and food donation immunity. The federal Bill Emerson Good Samaritan Food Donation Act (Emerson Act) was enacted in 1996 to provide civil immunity protections to encourage food donation to nonprofit organizations. The Emerson Act states that no person should be subject to civil or criminal liability arising from the condition of apparently wholesome food or an apparently fit grocery product that is donated in good faith to a nonprofit organization for distribution to needy individuals, and provides this same protection to the nonprofit organizations that receive the food. The Emerson Act specifies that these immunity protections do not apply to an injury or death that results from an act or omission that constitutes gross negligence or intentional misconduct. However, the Emerson Act requires that donated food products meet all quality and labeling standards imposed by federal, state and local laws in order to qualify for the immunity provisions. According to the Public Health Law Center, the federal Department of Justice has interpreted the Emerson Act as partially preempting state laws by setting a base floor of liability protection, while the states are free to offer higher levels of liability protection. California’s liability protections for food donation precede the Emerson Act, and offer less protection in certain respects, and more protection in other respects. Among other provisions, this bill raises the California standard to “gross negligence,” matching the Emerson Act, and additional specifically applies this immunity to food that has exceeded the “sell by” date on the food package.
3. The problem of food waste. There have been numerous reports and studies looking at the abundance of food produced in the United States and the amount of safe food that ends up in landfills. The Natural Resources Defense Council issued a report in March of this year, entitled Don’t Waste, Donate: Enhancing Food Donations Through Federal Policy. According to this report, 40% of the U.S. food supply goes uneaten, resulting in at least 62.5 million tons of wasted food each year, and uneaten food is the single largest contributor of solid waste in our nation’s landfills. The Food Waste Reduction Alliance, which is a joint project of the Food Marketing Institute, the Grocery Manufacturers Association, and the National Restaurant Association, conducts a survey every two years to collect data from food manufacturers, retailers, wholesalers and restaurants in order to understand the current state of food waste. Their most recent survey, published in the Fall of 2016, found that donated food made up only 3.3% of total unsaleable food, and that transportation constraints was the most often cited barrier to donating and recycling. The Harvard Food Law and Policy Clinic issued a report in October of 2016, entitled “Keeping Food Out of the Landfill: Policy Ideas for States and Localities.” This report states that in recent years, state and local governments have sought to increase food recovery by providing state tax incentives to food donors, allocating funding to support food recovery infrastructure, re-evaluating how schools handle food waste, and passing laws that ban organic waste from landfills. With regard to liability protections, the report said states can improve liability protections by clarifying and expanding the federal Emerson Act, including extending protection to organization that sell or otherwise charge for food, when donors donate directly to end-users, and when donors donate past-date foods. Additionally, the report stated that for liability protections to lead to more food recovery, food donors need to know that liability protections exist.

Related/Prior Legislation

AB 234 (Gordon, Chapter 616, Statutes of 2015) revised provisions of law governing community food producers or gleaners by allowing them to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to a permitted food facility, not just a restaurant, and limited the ability of a local environmental health officer to require community food producers or gleaners to register with the local enforcement entity only if the food producers or gleaners do not meet certain conditions.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 8/22/17)

California Association of Food Banks (co-source)

Californians Against Waste (co-source)

Alameda County Community Food Bank

Amy’s Kitchen, Inc.

California Association of Environmental Health Administrators

California Association of Nonprofits

California Food Policy Advocates

California Grocers Association

California League of Food Processors

California Retailers Association

Central Contra Costa Solid Waste Authority

City of Berkeley

City of Sunnyvale

Clean River Alliance

Community Action Agency of Butte County, Inc.

Community Alliance with Family Farmers

Community Food Bank

Emergency Food Bank Stockton/San Joaquin

Environmental Working Group

Feeding San Diego

FIND Food Bank

Food Bank Coalition of San Luis Obispo

Food Bank of Contra Costa and Solano County

Food Finders

Food for People, Inc.

Food Forward

Food Law and Policy Clinic, A Division of the Center for Health Law and Policy Innovation of Harvard Law School

Food Shift

FoodLink of Tulare County

Health Officers Association of California

Imperial Valley Food Bank

Jacobs & Cushman San Diego Food Bank

Kiss the Ground

League of California Cities

Lean Path, Inc.

Los Angeles Food Policy Council

Los Angeles Regional Food Bank

Los Angeles Unified School District

Meet Each Need With Dignity

Merced County Food Bank

Mojave Desert and Mountain Recycling Authority

Napa Recycling & Waste Services

Natural Resources Defense Council

Northern California Recycling Association

Oakland Food Policy Council

Redwood Empire Food Bank

Rural County Representatives of California

Sacramento Food Bank and Family Services

San Diego Food System Alliance

Second Harvest Food Bank, Orange County

Second Harvest Food Bank, San Joaquin & Stanislaus Counties

Second Harvest Food Bank, Santa Clara and San Mateo Counties

Second Harvest Food Bank, Santa Cruz County

SF-Marin Food Bank

Sierra Harvest

Solid Waste Association of North America

Sonoma County Waste Management Agency

St. Francis Center

Stop Waste

Sustain LA

Tri-CED Community Recycling

Urban and Environmental Policy

Western Center on Law & Poverty

Western Growers

Western Placer Waste Management Authority

Yolo Food Bank

Yuba-Sutter Food Bank

OPPOSITION: (Verified 8/22/17)

None received

ARGUMENTS IN SUPPORT: This bill is co-sponsored by Californians Against Waste (CAW) and the California Association of Food Banks (CAFB). CAW states that food is the single most prevalent material in California’s waste stream, with more than 5.5 million tons of food landfilled every year. CAW states that landfilling uneaten food and other organic waste releases more than 8.3 million tons of greenhouse gases each year, contributing 20% of the state’s methane emissions. According to CAW, much of the food currently going to landfills is wholesome and edible. CAFB states that this bill will reduce the amount of food going into California’s food waste stream and increase edible food donations by clarifying that the liability protections apply to donations of foods that may be past their date label, provided they are still safe for human consumption, and by providing the liability protection for donations directly to end-users. Numerous other organizations support this bill. The California Association of Environmental Health Administrators supports the efforts to ensure that local retail food facilities are provided with information that will encourage food waste diversion. The California Retailers Association states that for many years, its members have had strong liability concerns relating to any food borne illnesses or injuries that could result from food donations, and that this bill provides the statutory clarification that they have sought. California Food Policy Advocates states that food donations are an important source of nutrition for many food banks and community-based food pantries, and this bill is an important step towards encouraging individuals and organizations to donate excess food. Other organizations, including many food banks, waste and recycling businesses, environmental organizations, and advocates for the poor, also support this bill, making similar arguments.

ASSEMBLY FLOOR: 74-0, 5/4/17

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Travis Allen, Bigelow, Cristina Garcia, Jones-Sawyer, Patterson, Ridley-Thomas

Prepared by:

8/23/17 11:07:30

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 1219 (Author:Eggman)

Version: June 13, 2017

Hearing Date: July 11, 2017

Fiscal: Yes

Urgency: No

Consultant: CK

SUBJECT

Food donations

DESCRIPTION

This bill would immunize persons, gleaners, and nonprofit organizations from liability for injuries arising from the consumption of donated food, unless such injuries are the result of gross negligence or intentional misconduct. This bill would extend these protections to the donation of food directly to end recipients and to donations of food that has exceeded the labeled shelf life date recommended by the manufacturer. It would also require enforcement officers to promote the recovery of food fit for human consumption.

BACKGROUND

The Bill Emerson Good Samaritan Food Donation Act (the Act), 42 U.S.C. Section 1791, governs the federal liability standards that attach to donations of food and “grocery products.” It immunizes a person or gleaner^[1] from civil and criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food” that the person or gleaner donates in good faith to a nonprofit organization. The nonprofit organization is likewise immune in connection with the donated food. However, the immunity does not apply if an injury to or death of the ultimate user or recipient of the food results from the gross negligence or intentional misconduct of the person, gleaner, or nonprofit organization. The Act further provides that 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.

California has its own statute that also applies to food donations. It provides that no food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank shall be liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the donated food. This civil immunity applies regardless of compliance with any laws, regulations, or ordinances regulating the packaging or labeling of food, and regardless of compliance with any laws, regulations, or ordinances regulating the storage or handling of the food by the donee after the donation of the food. A nonprofit charitable organization is also immune for injuries resulting from food fit for human consumption that it receives and distributes unless the injury is a direct result of the organization’s negligence, recklessness, or intentional misconduct.

This bill would significantly expand the immunity provided by the California statute. This bill passed out of the Senate Health Committee on a 9-0 vote.

CHANGES TO EXISTING LAW

Existing federal law, the Bill Emerson Good Samaritan Food Donation Act, governs the liability standards that attach to food donations. (42 U.S.C. Sec. 1791.)

Existing federal law provides that a person or gleaner is not subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals. A nonprofit organization is similarly not subject to civil or criminal liability arising from those goods that the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals. This immunity from liability does not apply to the injury or death of an ultimate user or recipient resulting from an act or omission of the person, gleaner, or nonprofit organization constituting gross negligence or intentional misconduct. (42 U.S.C. Sec. 1791(c).)

Existing federal law defines the relevant terms in the Emerson Good Samaritan Food Donation Act as follows:

• “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;
• “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;
• “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;
• “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;
• “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. (42 U.S.C. Sec. 1791(b).)

Existing federal law provides that 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 where the injury or death results from an act or omission of the person constituting gross negligence or intentional misconduct. (42 U.S.C. Sec. 1791(d).)

Existing law provides, except for injury resulting from negligence or a willful act in the preparation or handling of donated food, no food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or a food bank shall be liable for any damage or injury resulting from the consumption of the donated food. This immunity from civil liability applies regardless of compliance with any laws, regulations, or ordinances regulating the packaging or labeling of food, and regardless of compliance with any laws, regulations, or ordinances regulating the storage or handling of the food by the donee after the donation of the food. (Civ. Code Sec. 1714.25(a).)

Existing law provides that a nonprofit charitable organization or a food bank that, in good faith, receives and distributes food without charge that is fit for human consumption at the time it was distributed is not liable for an injury or death due to the food unless the injury or death is a direct result of the negligence, recklessness, or intentional misconduct of the organization. (Civ. Code Sec. 1714.25(b).)

Existing law provides that any person engaged in the business of processing, distributing, or selling any agricultural product may donate, free of charge, any product which is in a condition that it may be used as food for human beings, to a nonprofit charitable organization within the state. (Food & Agr. Code Sec. 58502.)

Existing law provides that provisions of the Food and Agricultural Code governing the donation of food do not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from the ingesting of such agricultural product, as a result of receiving, accepting, gathering, or removing any agricultural product donated. (Food & Agr. Code Sec. 58506.)

Existing law provides that any food facility may donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge. However, no such food facility shall be subject to civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product or, with respect to any other laws, regulations, or ordinances, for a violation occurring after the time of the donation. (Health & Saf. Code Secs. 114432, 114433.)

This bill would provide that, except for injury resulting from gross negligence or intentional misconduct in the preparation or handling of donated food, no person, gleaner, or food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization, a food bank, or directly to end recipients shall be liable for any damage or injury resulting from the consumption of the donated food. The bill would provide that this immunity from civil liability applies regardless of compliance with any laws, regulations, or ordinances regulating the packaging or labeling of food, and regardless of compliance with any laws, regulations, or ordinances regulating the storage or handling of the food by the donee after the donation of the food.

This bill would provide that the donation of nonperishable food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the California Good Samaritan Food Donation Act.

This bill would provide that the donation of perishable food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the California Good Samaritan Food Donation Act if the donee makes a good faith evaluation that the food to be donated is wholesome.

This bill provides that a nonprofit charitable organization or a food bank that, in good faith, receives and distributes food without charge that is fit for human consumption at the time it was distributed is not liable for an injury or death due to the food unless the injury or death is a direct result of the gross negligence or intentional misconduct of the organization. It would make clear that it does not limit the ability of a person, gleaner, or food facility to donate food.

This bill defines “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. It would provide that “nonprofit charitable organization” has the same meaning as defined in Section 113841 of the Health and Safety Code and define “person” to mean an individual, school, local educational agency as defined in Section 421 of the Education Code, corporation, partnership, limited liability company, 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, manager or managing member, deacon, trustee, council member, or other elected or appointed individual responsible for the governance of the entity.

This bill repeals Section 58506 of the Food and Agricultural Code.

This bill would expand the provisions of the Health and Safety Code governing food donations by food facilities to also authorize donations of food directly to end recipients and to also include authorization for persons and gleaners. It would also add the immunities discussed above to the provisions of the Health and Safety Code and extend the reach to persons and gleaners rather than just food facilities.

This bill would provide that enforcement officers are required to promote the recovery of food fit for human consumption during their normal, routine inspections. Such promotion would include newsletters, bulletins, and handouts that inform retail food facility operators about the protections from civil and criminal liability when donating food.

COMMENT

1. Stated need for the bill

According to the author:

One in every eight Californians suffers from food insecurity, yet much of the state’s surplus food is discarded. Food manufacturers, retailers, and restaurants frequently cite a fear of liability as a barrier to their donation of surplus food. Existing protections are too limited and unclear to sufficiently encourage donation as intended. Current law is not explicit about whether food donated past its sell-by-date is covered by existing protections and prohibits the direct donation of food from its source, requiring an intermediary. This bill will expand protections to gleaners, wholesome food donated past its sell-by-date, and food donated directly to end users. It will also educate potential donors about the protections they enjoy under the law. By explicitly stating what kinds of food donations are protected, the bill will reassure donors that they are, in fact, protected.

2. Limited immunity and the interaction of Federal and State food donation laws

The Bill Emerson Good Samaritan Food Donation Act (the Act), as discussed above, provides immunity for persons, gleaners, and nonprofit organizations in connection with food donations, unless a resulting injury is caused by their gross negligence or intentional misconduct. This provides legal protections for these entities beyond existing California law. The Act preempts relevant state laws to the extent they provide less protection from civil and criminal liability arising from food donated in good faith than the Act does. Therefore, the Act provides a floor of protection for these various entities and preempts California law to the extent it does not rise to this floor.

This bill would extend existing state law liability protections for food donations, which currently protects food facilities, to persons and gleaners, just as the Act does. Existing state law immunity does not apply if the food facility is negligent. This bill would protect food facilities, persons, and gleaners from liability unless they are grossly negligent or the injuries result from intentional misconduct. This aligns with the Act’s baseline immunity for the negligence of these entities. However, this bill extends the protections beyond the Act in several significant ways.

1. Interplay with other laws and regulations governing food

The Act affords its limited immunity to the donation of “apparently wholesome food.” This is defined as “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.” This bill would provide its limited immunity to the donation of food that is “fit for human consumption at the time it was donated.” This immunity from civil liability would further apply “regardless of compliance with any laws, regulations, or ordinances regulating the packaging or labeling of food, and regardless of compliance with any laws, regulations, or ordinances regulating the storage or handling of the food by the donee after the donation of the food.”

This bill also explicitly allows for the donation of food that has exceeded the labeled shelf life date recommended by the manufacturer. Given the differing concerns that arise between the expiration of nonperishable and perishable foods, the bill would treat each differently. The donation of nonperishable food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer would be fully covered by the provisions of the act. However, perishable food would be protected only “if the donee makes a good faith evaluation that the food to be donated is wholesome.” This would provide an additional protection to end users that the food they ingest is not harmful. However, placing this burden on the donee may be problematic in certain circumstances.

As discussed more thoroughly below, this bill would provide limited immunity to donations of food directly to end recipients. Therefore, this bill would place the obligation of conducting a “good faith evaluation” of the wholesomeness of expired, perishable food on a family in need. It seems safe to assume that many people receiving these donations directly will not have the sophistication to ensure the food they are accepting is wholesome or what latent dangers are presented by various perishable goods. In response to these concerns, the author has agreed to the following amendment that will ensure the good faith evaluation is conducted before the end recipient receives the food:

Committee Amendments

On page 5, line 8, delete “donee” and insert “the person or entity that distributes the food to the end recipient”

On page 6, line 14, delete “donee” and insert “the person or entity that distributes the food to the end recipient”

On page 7, line 6, delete “donee” and insert “the person or entity that distributes the food to the end recipient”

1. Immunizing donations directly to individuals

For the first time, the donation of food directly to the ultimate user would be afforded limited immunity pursuant to this bill. The benefits of protecting this transfer of food are clear. A 2016 fact sheet was produced through collaboration between the Harvard Food Law and Policy Clinic and the Natural Resources Defense Council, entitled “Recommendations to Strengthen the Bill Emerson Good Samaritan Act.” The publication addressed this issue of immunizing donations directly to end users: “Extending protections to direct donations will increase efficiency, reduce costs, and enable timely use of perishable food. Individuals in need will be able to pick up food from more accessible locations right at the source, such as local restaurants and grocery stores.”

However, this additional extension of the law, beyond that of the Act, presents some concerns. When food donations go through a more sophisticated middleman, such as a food bank or other nonprofit organization, concerns about the safety and handling of the food is allayed to a certain extent. However, there are fewer guarantees when food is provided directly to end users. The fact sheet referenced above recognized this concern and advocated for limitations on such an extension to protect the ultimate recipients, contending the extension “should be limited to food service establishments and retail stores because they already have to comply with food safety requirements like training and inspections, which ensures that these direct donations will be made safely.” To address these concerns the author has agreed to the following amendment:

Committee Amendment

On page 4, lines 33-34, strike “organization, a food bank, or directly to end recipients” and insert “organization or a food bank”

On page 4, line 35, after “food.” insert:

“Food donors that are required to comply with state or local food safety requirements may donate food directly to end recipients for consumption.”

On page 6, line 7, strike out “state or directly to end recipients.”, and insert:

“state. Food donors that are required to comply with state or local food safety requirements may donate food directly to end recipients for consumption.”

On page 6, line 24, strike out “directly to end recipients,”

On page 6, line 26, after “charge.” insert:

“Food donors that are required to comply with state or local food safety requirements may donate food directly to end recipients for consumption.”

3. Lowering the established standard of care

Although this legislation is motivated in part by the fear of lawsuits, there is not much evidence that food donations have been the subject of much litigation. As pointed out above, the Act already provides a great deal of protections to potential donors and nonprofit organizations. Therefore, this Committee may wish to be cautious in contemplating whether it should further extend protections from liability. Although for altruistic purposes in the bill at hand, immunities from liability are generally disfavored as a matter of public policy. By their nature, they prevent an injured party from seeking recovery for damages caused by the wrongful acts of another. They also disincentivize careful behavior by parties who, because of their immunity, cannot be held liable for their wrongful acts. Immunities are generally afforded when needed to incentivize certain conduct, such as interceding to save a life. (See Civil Code Sections 1714.2 (use of CPR), 1714.21 (use of an automated external defibrillator), 1714.22 (use of opiate overdose treatment).)

The arguments in support of this bill, and the research supporting those arguments, speak to the need to encourage the donation of more food that would otherwise waste away in our landfills. However, the calculus in lowering any standard of care must always include an appreciation of the increased dangers inevitably being created. Here, the dangers are the risk of injury to the very population this bill is aimed to serve. Nonetheless, this bill would address the very real problems of hunger, food insecurity, and food waste.

Support: Alameda County Food Bank; Amy’s Kitchen, Inc.; California Association of Environmental Health Administrators; California Association of Nonprofits; California Food Policy Advocates; California Grocers Association; California League of Food Processors; California Retailers Association; City of Sunnyvale; Community Action Agency of Butte County, Inc.; Community Alliance with Family Farmers; Emergency Food Bank Stockton/San Joaquin; Feeding San Diego; Food Bank of Contra Costa & Solano County; Food Finders; Food for People, Inc.; Food Forward; Food Law and Policy Clinic of Harvard Law School; FoodLink Tulare County; Food Shift; Imperial Valley Food Bank; Jacobs & Cushman San Diego Food Bank; Los Angeles Food Policy Council; Los Angeles Regional Food Bank; Los Angeles Unified School District; Meet Each Need with Dignity; Natural Resources Defense Council; Merced County Food Bank; Oakland Food Policy Council; Redwood Empire Food Bank; Rural County Representatives of California; Second Harvest Food Bank Orange County; Second Harvest Food Bank Santa Cruz County; Second Harvest Food Bank of San Joaquin & Stanislaus Counties; Sierra Harvest; Solid Waste Association of North America (SWANA); St. Francis Center; Urban and Environmental Policy Institute at Occidental College; Western Center on Law and Poverty; Yolo Food Bank; Yuba-Sutter Food Bank; Zero Waste Marin

Opposition: None Known

HISTORY

Source: California Association of Food Banks; Californian’s Against Waste

Related Pending Legislation: AB 954 (Chiu, 2017) would require the Department of Food and Agriculture to publish guidelines that encourage food manufacturers, processors, and retailers responsible for the labeling of food products to voluntarily use uniform quality dates and safety dates on food product labels. This bill is currently in the Senate Health Committee.

Prior Legislation:

SB 1383 (Lara, Ch. 395, Stats. 2016), as relevant here, established a target of 50 percent reduction in the statewide disposal of organic waste from the 2014 level by 2020 and a 75 percent reduction by 2025, and requires CalRecycle and the Air Resources Board to adopt regulations to achieve the organic waste reduction targets.

SB 144 (Runner, Ch. 23, Stats. 2006) authorized food facilities to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge and provided limited immunity.

Prior Vote:

Senate Health Committee (Ayes 9, Noes 0)

Assembly Floor (Ayes 74, Noes 0)

Assembly Appropriations Committee (Ayes 16, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

**************

1. A gleaner is defined 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. This definition is also used in this bill. ↑

SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: AB 1219

SUBJECT: Food donations

SUMMARY:

Enacts the California Good Samaritan Food Donation Act, which strengthens immunity protections for the donation of food, extends this immunity protection to any entity that donates food, rather than just food facilities, and requires local food facility enforcement officers to promote the recovery of food fit for human consumption during their routine inspections with handouts describing the immunity provisions association with the donation of food.

Existing law:

1. Establishes the California Retail Food Code (CRFC), which governs all aspects of retail food safety and sanitation in California under the CRFC. Specifies that primary responsibility for enforcement of the CRFC is with local enforcement agencies.
2. Permits food facilities to donate food to a food bank or to any other nonprofit charitable organization for distribution to persons free of charge.
3. Provides food facilities that donate food to a nonprofit charitable organization or a food bank with immunity from civil liability for any damage or injury resulting from the consumption of the donated food, except for injuries resulting from negligence or a willful act in the preparation or handling of donated food.
4. Provides nonprofit charitable organizations or food banks that, in good faith, receive and distribute food without charge with immunity from civil liability for an injury or death due to the food unless the injury or death is a direct result of the negligence, recklessness, or intentional misconduct of the organization.
5. Defines “gleaner” as a person who legally gathers remnants of an agricultural crop or harvests part of, or all of, an agricultural crop made available by the owner of the agricultural crop.

1. Permits any person engaged in the business of processing, distributing, or selling any agricultural product to donate, free of charge, any product which is in a condition that it may be used as food for human beings, to a nonprofit charitable organization.
2. Permits the board of supervisors of any county to establish a surplus food collection and distribution system for receiving, storing, and distributing donated agricultural products.
3. Provides, in the Food and Agriculture Code, immunity to counties and to persons who donate agricultural products, but specifies that it does not relieve any nonprofit charitable organization from any liability for any injury resulting from the ingesting of an agricultural product as a result of accepting any donated agricultural product.

This bill:

1. Expands the immunity from civil liability that is provided related to the donation of food by doing the following:
   1. Extending the immunity for donors beyond food facilities to include persons, which is defined broadly to include businesses or government entities, and to gleaners, as defined, and by permitting the donation of food directly to end recipients instead of just food banks or charitable organizations;
   2. Limits the exceptions to the immunity provisions to injuries resulting from gross negligence or intentional misconduct, rather than just negligence or a willful act.
   3. Specifies that the donation of nonperishable food that is fit for human; and, consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected by the immunity provisions, and the donation of perishable food that has exceeded the labeled shelf life date is protected by the immunity provisions if the donor makes a good faith evaluation that the food to be donated is wholesome.
2. Requires local environmental health enforcement officers to promote the recovery of food fit for human consumption during their normal, routine inspections, and requires this promotion to include, but not be limited to, newsletters, bulletins, and handouts that inform retail food facility operators about the protections from civil and criminal liability when donating food.
3. Defines “gleaner,” for purposes of this bill and existing immunity provisions, as a person who harvests an agricultural crop that has been donated by the owner for free distribution to the needy, or for donation to a nonprofit organization for ultimate distribution to the needy.
4. Defines “person,” for purposes of this bill and existing immunity provisions, as an individual, school, local educational agency, corporation, partnership, limited liability company, organization, association, or government entity, including a retail grocer, wholesaler, hotel, motel, manufacturer, restaurant, caterer, farmer, nonprofit food distributor or hospital. Specifies that in the case of a corporation, partnership, organization, association, or governmental entity, “person” includes an officer, director, partner, manager or managing member, deacon, trustee, council member, or other elected or appointed individual responsible for the governance of the entity.
5. Adds gleaners to provisions of the law permitting the donation of an agricultural product to a nonprofit charitable organization, and also permits donation of agricultural products directly to end recipients.
6. Repeals a provision of law in the Food and Agricultural Code related to food donation that specifies that nothing in those provisions provide any immunity from civil liability for injuries resulting from receiving a donated agricultural product, which is in conflict with provisions of the Civil Code providing civil immunity for donated food.
7. Adds gleaners and persons, as each of these terms are defined by this bill, to a provision of law exempting a food facility that donates food from civil or criminal liability or penalty for violation of any laws, regulations, or ordinances regulating the labeling or packaging of the donated product, or to any other laws that might be violated after the time of the donation.
8. Makes various legislative findings and declarations, including that much of the edible, surplus, wholesome food in the state is discarded, and that many food donors cite fear of liability as one of the top barriers to donating to organizations that seek to redistribute food to individuals in need, and that it is the public policy of the state that food donations be highly encouraged.
9. Makes technical and conforming changes to various provisions of law.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, this bill would not create a reimbursable mandate because costs associated with the requirement for health enforcement officers to promote the recovery of food could be recovered by the fees charged for the inspection of food facilities.

PRIOR VOTES:

COMMENTS:

1. Author’s statement. According to the author, one in every eight Californians suffers from food insecurity, yet much of the state’s surplus food is discarded. Food manufacturers, retailers, and restaurants frequently cite a fear of liability as a barrier to their donation of surplus food. Existing protections are too limited and unclear to sufficiently encourage donation as intended. Current law is not explicit about whether food donated past its sell-by-date is covered by existing protections and prohibits the direct donation of food from its source, requiring an intermediary. This bill will expand protections to gleaners, wholesome food donated past its sell-by-date, and food donated directly to end users. It will also educate potential donors about the protections they enjoy under the law. By explicitly stating what kinds of food donations are protected, the bill will reassure donors that they are, in fact, protected.
2. Background on the federal Emerson Act and food donation immunity. The federal Bill Emerson Good Samaritan Food Donation Act (Emerson Act) was enacted in 1996 to provide civil immunity protections to encourage food donation to nonprofit organizations. The Emerson Act states that no person should be subject to civil or criminal liability arising from the condition of apparently wholesome food or an apparently fit grocery product that is donated in good faith to a nonprofit organization for distribution to needy individuals, and provides this same protection to the nonprofit organizations that receive the food. The Emerson Act specifies that these immunity protections do not apply to an injury or death that results from an act or omission that constitutes gross negligence or intentional misconduct. However, the Emerson Act requires that donated food products meet all quality and labeling standards imposed by federal, state and local laws in order to qualify for the immunity provisions. According to the Public Health Law Center, the federal Department of Justice has interpreted the Emerson Act as partially preempting state laws by a setting a base floor of liability protection, while the states are free to offer higher levels of liability protection. California’s liability protections for food donation precede the Emerson Act, and offer less protection in certain respects (for example, state law waives the immunity for “negligence” while federal law only waives the immunity for “gross negligence”), and more protection in other respects (granting protection regardless of compliance with packaging or labeling requirements). Among other provisions, this bill raises the California standard to “gross negligence,” matching the Emerson Act, and additional specifically applies this immunity to food that has exceeded the “sell by” date on the food package.
3. The problem of food waste. There have been numerous reports and studies looking at the abundance of food produced in the United States and the amount of safe food that ends up in landfills. The Natural Resources Defense Council issued a report in March of this year, entitled Don’t Waste, Donate: Enhancing Food Donations Through Federal Policy. According to this report, 40% of the U.S. food supply goes uneaten, resulting in at least 62.5 million tons of wasted food each year, and uneaten food is the single largest contributor of solid waste in our nation’s landfills. This report states that despite the large amount of discarded food, 12.7% of U.S. households were food insecure in 2015, meaning that at some point in the year they lacked access to a sufficient amount of food. The Food Waste Reduction Alliance, which is a joint project of the Food Marketing Institute, the Grocery Manufacturers Association, and the National Restaurant Association, conducts a survey every two years to collect data from food manufacturers, retailers, wholesalers and restaurants in order to understand the current state of food waste. Their most recent survey, published in the Fall of 2016, found that donated food made up only 3.3% of total unsaleable food, and that transportation constraints was the most often cited barrier to donating and recycling. The survey found, however, that 58% of respondents are investing in increasing food donation for those in need, making it the most often cited investment area. The Harvard Food Law and Policy Clinic issued a report in October of 2016, entitled “Keeping Food Out of the Landfill: Policy Ideas for States and Localities.” This report states that in recent years, state and local governments have sought to increase food recovery by providing state tax incentives to food donors, allocating funding to support food recovery infrastructure, re-evaluating how schools handle food waste, and passing laws that ban organic waste from landfills. With regard to liability protections, the report said states can improve liability protections by clarifying and expanding the federal Emerson Act, including extending protection to organization that sell or otherwise charge for food, when donors donate directly to end-users, and when donors donate past-date foods. Additionally, the report stated that for liability protections to lead to increased food recovery, potential food donors need to know that such protections exist, and states can increase food donation by making potential food donors aware of the federal and state liability protections available.
4. Double referral. This bill is double referred. Should it pass out of this committee, it will be referred to the Senate Judiciary Committee.
5. Related legislation. SB 557 (Hernandez) permits a local educational agency to provide sharing tables where faculty, staff and students can place prepackaged, non-potentially hazardous food items, or unpeeled fruit, that can be donated to a food bank or other nonprofit charitable organization. SB 557 is pending in the Assembly Health Committee.

AB 954 (Chiu) Requires the Department of Food and Agriculture, in consultation with the Department of Public Health, to publish guidelines that encourage the voluntary use of uniform quality and safety dates on food products. SB 954 is pending in the Senate Agriculture Committee, and is double-referred to Senate Health Committee.

1. Prior legislation. AB 234 (Gordon, Chapter 616, Statutes of 2015) revised provisions of law governing community food producers or gleaners by allowing them to sell whole uncut fruits or vegetables, or unrefrigerated shell eggs, directly to a permitted food facility, not just a restaurant, and limited the ability of a local environmental health officer to require community food producers or gleaners to register with the local enforcement entity only if the food producers or gleaners do not meet certain conditions.
2. Support. This bill is co-sponsored by Californians Against Waste (CAW) and the California Association of Food Banks (CAFB). CAW states that food is the single most prevalent material in California’s waste stream, with more than 5.5 million tons of food landfilled every year. CAW states that landfilling uneaten food and other organic waste releases more than 8.3 million tons of greenhouse gases each year, contributing 20% of the state’s methane emissions. According to CAW, much of the food currently going to landfills is wholesome and edible. CAFP states that this bill will reduce the amount of food going into California’s food waste stream and increase edible food donations by clarifying that the liability protections apply to donations of foods that may be past their date label, provided they are still safe for human consumption, and by providing the liability protection for donations directly to end-users. Numerous other organizations support this bill. The California Association of Environmental Health Administrators supports the efforts to ensure that local retail food facilities are provided with information that will encourage food waste diversion. The California Retailers Association states that for many years, its members have had strong liability concerns relating to any food borne illnesses or injuries that could result from food donations, and that this bill provides the statutory clarification that they have sought. California Food Policy Advocates states that food donations are an important source of nutrition for many food banks and community-based food pantries, and this bill is an important step towards encouraging individuals and organizations to donate excess food that would otherwise be wasted. Other organizations, including many food banks, waste and recycling businesses, environmental organizations, and advocates for the poor, also support this bill, making similar arguments.

SUPPORT AND OPPOSITION:

Support: California Association of Food Banks (co-sponsor)

Californians Against Waste (co-sponsor)

Alameda County Community Food Bank

California Association of Environmental Health Administrators

California Association of Nonprofits

California Food Policy Advocates

California Grocers Association

California League of Food Processors

California Retailers Association

Central Contra Costa Solid Waste Authority

City of Sunnyvale

Clean River Alliance

Community Action Agency of Butte County, Inc.

Community Alliance with Family Farmers

Emergency Food Bank Stockton/San Joaquin

Feeding San Diego

Food Bank of Contra Costa and Solano County

Food Finders

Food for People, Inc.

Food Forward

Food Law and Policy Clinic, A Division of the Center for Health Law and Policy Innovation of Harvard Law School

Food Shift

FoodLink of Tulare County

Health Officers Association of California

Imperial Valley Food Bank

Jacobs & Cushman San Diego Food Bank

Lean Path, Inc.

Los Angeles Food Policy Council

Los Angeles Regional Food Bank

Los Angeles Unified School District

Meet Each Need With Dignity

Merced County Food Bank

Napa Recycling & Waste Services

Natural Resources Defense Council

Northern California Recycling Association

Oakland Food Policy Council

Redwood Empire Food Bank

San Diego Food System Alliance

Second Harvest Food Bank, Orange County

Second Harvest Food Bank, San Joaquin & Stanislaus Counties

Second Harvest Food Bank, Santa Clara and San Mateo Counties

Second Harvest Food Bank, Santa Cruz County

SF-Marin Food Bank

Sierra Harvest

Solid Waste Association of North America (SWANA)

Sonoma County Waste Management Agency

Stop Waste

St. Francis Center

Sustain LA

Western Center on Law & Poverty

Yolo Food Bank

Yuba-Sutter Food Bank

Oppose: None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 1219

Author:(Eggman)

As Amended Ver:May 1, 2017

Majority vote

SUMMARY: Expands existing provisions of the Civil Code, Food and Agricultural Code, and Health and Safety Code, relating to civil immunities and liabilities of entities that donate food fit for human consumption, to charitable organizations and food banks. Specifically, this bill:

1. Provides that no person, gleaner, or food facility that donates food that is fit for human consumption to a nonprofit charitable organization, a food bank, or directly to end users shall be civilly liable for any damage or injury resulting from the consumption of donated food, unless the damage or injury is a direct result of the gross negligence or willful misconduct of the donor. Specifies (consistent with existing law) that this qualified immunity from civil liability applies regardless of compliance with laws and regulations regarding the packaging or labeling of food, and regardless of compliance with laws and regulations regarding the storage and handling of the food by the donee after the donation of the food.
2. Specifies that the donation of food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the provisions of this bill, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome.
3. Provides that a person or gleaner engaged in the business of processing, distributing, or selling an agricultural product may donate a product that is fit for human beings to a nonprofit charitable organization within the state or directly to end recipients. Specifies that the donation of nonperishable food that is fit for human consumption but that has exceeded the labeled shelf life date is protected by this bill, provided, in instances of perishable food, the donee makes a good faith evaluation that the food is wholesome.
4. Provides that a person, gleaner, or food facility may donate food directly to end recipients, to a food bank, or to any other nonprofit charitable organizations for distribution to persons. Specifies that a person, gleaner, or food facility that donates food pursuant to this provision shall not be subject to civil or criminal liability for violation of any laws or regulations regulating the labeling or packaging of the donated product, or for a violation occurring after the time of the donation.
5. Requires health enforcement officers to promote the recovery of edible food for human consumption by, among other things, prominently displaying on a food facility inspection a statement encouraging food facilities to donate food to a local food bank and informing the facility of the qualified immunity provided under this bill.

FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill would not create a reimbursable mandate because costs associated with the requirement for health enforcement officers to promote the recovery of food could be recovered by the fees charged for the inspection of food facilities.

COMMENTS: Both federal and California law have recognized that fear of liability can discourage food donations. For example, the federal "Bill Emmerson Good Samaritan Food Donation Act of 1996" provides that a person or "gleaner" who, in good faith, donates "apparently wholesome" food to a nonprofit organization is not liable for any harm caused by the food, unless the harm was caused by the gross negligence or intentional misconduct of the donor. The Emmerson Act also protects from liability the nonprofit organization that, in good faith, receives and distributes food to needy persons, unless the harm is caused by gross negligence or intentional misconduct of the recipient or distributor.

California Food Donations Laws: About 20 years before Congress enacted the Emmerson Act, California enacted legislation that offered "qualified" immunity (i.e. no liability except for acts of gross negligence or willful misconduct) to donors of food; it also granted a tax deduction equal to the cost of the donated food. In subsequent years, the Legislature added similar provisions to the Food & Agricultural Code (specifically for agricultural products) and to the Health & Safety Code (for a "food facility," as defined by the Health & Safety Code.) As a result of these several measures, California's food donation law is now scattered among the Civil Code, Food & Agricultural Code, and the Health & Safety Code. In general these measures, like the federal law, provide qualified immunity to persons or organizations that donate food products to be used by needy persons, "free of charge" or "without charge." The common goal of these several statutes is to encourage food donation by providing some relief from liability for the potential harm of tainted food to persons who ultimately consume the food.

Alleged Limitations of Existing Law: In addition to the lack of clarity and consistency in the several food donation statutes, the author and co-sponsors contend that existing law – both state and federal – is inadequate in at least three ways. First, while federal law generally applies to all persons – including "gleaners" who typically rescue rejected produce that is still fit for human consumption – California law only affords immunity to food banks and nonprofit charitable organizations. Second, both state and federal law primarily affords protection to persons or entities that donate food to food banks or charitable organizations for eventual human consumption, but does not generally afford immunity for donations made directly to end users. Third, existing law does not extend immunity to donations of food that exceeds a manufacturer's or packager's "shelf life" date.

The bill distinguishes between perishable and nonperishable foods that exceed a labeled shelf life date. Extending immunity to donations of food that exceeds the "shelf life" date seems particularly important to the co-sponsors and most, if not all, of the bill's many supporters. The "shelf life" date typically takes the form of a "sell by," "use by," or "best used by" date that appears on the food packaging. By not authorizing or granting immunity for donated food that has exceeded its shelf life date, existing law results in much wholesome food going to landfills, instead of to needy people. However, it is important to note that some "shelf life" or "use by" dates may indicate that the food product is unsafe if consumed after that date. This is especially true of perishable foods, especially meats, unless they are frozen before the expiration date. However, just as often, the "shelf life" date speaks not to the safety but to the quality of the food. For example, using a package of dried pasta after a "best used by date" is not unsafe, even if the quality of the market is marginally diminished. In order to better distinguish between the donation of perishable and nonperishable foods beyond a shelf life date, the bill provides qualified immunity for the donation of nonperishable foods that exceed the manufacturer's recommended shelf life date. However, qualified immunity will only be extended to donations of nonperishable foods that have exceeded the shelf life date if the donor makes a good faith evaluation that the donated food is wholesome and fit for human consumption.

"Qualified" Immunity for Good Samaritans: Existing Civil Code Section 1714.25 purports to grant immunity from civil liability to a food donor, "except for injury resulting from negligence or a willful act." [Emphasis added.] The Legislature has, on several occasions, offered "qualified" or "limited" immunity to "good Samaritans" in order to encourage people to take selfless and charitable actions to help others, without any expectation of reward or compensation. Because as a matter of public policy the state wants people to come to the aid of others, albeit in a responsible manner, the Legislature has offered "qualified" immunity to "good Samaritans" in various contexts. On the other hand, we do not want an overzealous rescuer to act in such a reckless manner that the rescue results in greater harm to the person who is rescued than would have occurred in the event that there had been no rescue attempt at all.

Similarly, while we want to encourage people to donate food to people in need, we do not want them to do so with such reckless disregard for the safety of the donated food that food which is obviously not fit for human consumption is donated, or to donate food they know or should know is not fit for human consumption.

Immunity restricted to persons and entities who donate food free of charge. The other approach that this Committee has consistently endorsed is only granting "good Samaritan" immunity to persons who engage in the good act without compensation. For example, the statute granting qualified immunity to a person rendering emergency cardiopulmonary resuscitation (CPR) does not apply to any person who renders such care "with the expectation of receiving compensation from the individual for providing the emergency care." (Civil Code Section 1714.2.) The statute that grants qualified immunity to a person who renders emergency care with the use of an AED (automated external defibrillator) likewise only applies to a person who "in good faith and not for compensation, renders emergency care . . . by use of an AED at the scene of an emergency." (Civil Code Section 1714.21.) Immunity for a person who renders aid by use of an Epinephrine Auto-Injector ("Epi-Pen") similarly only applies when the person who administers the device does so "in good faith and not for compensation." (Civil Code Section 1714.23.) California's general Good Samaritan law, that grants qualified immunity to a person rendering medical or non-medical aid at the scene of an emergency–regardless of what device is used, if any–also restricts its application to persons who act in "good faith, and not for compensation." (Health & Safety Code Section 1799.102) Not surprisingly, the food donations statutes that this bill seeks to amend restrict immunity to person's who act "without charge" or "free of charge." (See e.g. Civil Code Section 1714.25 (b); Food & Agricultural Code Section 58502 (a); Health & Safety Code Section 114432 (a).) Consistent with these principals, this bill would restrict good Samaritan immunity to persons who act "without charge" and "not for compensation."

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0000208

ASSEMBLY THIRD READING

ATR Bill Id:AB 1219

Author:(Eggman)

As Amended Ver:April 3, 2017

Majority vote

SUMMARY: Expands existing provisions of the Civil Code, Food and Agricultural Code, and Health and Safety Code, relating to civil immunities and liabilities of entities that donate food fit for human consumption, to charitable organizations and food banks. Specifically, this bill:

1. Provides that no person, gleaner, or food facility that donates food that is fit for human consumption to a nonprofit charitable organization, a food bank, or directly to end users shall be civilly liable for any damage or injury resulting from the consumption of donated food, unless the damage or injury is a direct result of the gross negligence or willful misconduct of the donor. Specifies (consistent with existing law) that this qualified immunity from civil liability applies regardless of compliance with laws and regulations regarding the packaging or labeling of food, and regardless of compliance with laws and regulations regarding the storage and handling of the food by the donee after the donation of the food.
2. Specifies that the donation of food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer or is mislabeled is protected under the provisions of this bill.
3. Provides that a person or gleaner engaged in the business of processing, distributing, or selling an agricultural product may donate a product that is fit for human consumption, including, but not limited to, food that has exceeded the labeled shelf life date recommended by the manufacturer to a nonprofit charitable organization within the state or directly to end recipients.
4. Provides that a person, gleaner, or food facility may donate food directly to end recipients, to a food bank, or to any other nonprofit charitable organizations for distribution to persons. Specifies that a person, gleaner, or food facility that donates food pursuant to this provision shall not be subject to civil or criminal liability for violation of any laws or regulations regulating the labeling or packaging of the donated product, or for a violation occurring after the time of the donation.
5. Requires health enforcement officers to promote the recovery of edible food for human consumption by, among other things, prominently displaying on a food facility inspection a statement encouraging food facilities to donate food to a local food bank and informing the facility of the qualified immunity provided under this bill.

FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill would not create a reimbursable mandate because costs associated with the requirement for health enforcement officers to promote the recovery of food could be recovered by the fees charged for the inspection of food facilities.

COMMENTS: Both federal and California law have recognized that fear of liability can discourage food donations. For example, the federal "Bill Emmerson Good Samaritan Food Donation Act of 1996" provides that a person or "gleaner" who, in good faith, donates "apparently wholesome" food to a nonprofit organization is not liable for any harm caused by the food, unless the harm was caused by the gross negligence or intentional misconduct of the donor. The Emmerson Act also protects from liability the nonprofit organization that, in good faith, receives and distributes food to needy persons, unless the harm is caused by gross negligence or intentional misconduct of the recipient or distributor.

California Food Donations Laws: About 20 years before Congress enacted the Emmerson Act, California enacted legislation that offered "qualified" immunity (i.e. no liability except for acts of gross negligence or willful misconduct) to donors of food; it also granted a tax deduction equal to the cost of the donated food. In subsequent years, the Legislature added similar provisions to the Food & Agricultural Code (specifically for agricultural products) and to the Health & Safety Code (for a "food facility," as defined by the Health & Safety Code.) As a result of these several measures, California's food donation law is now scattered among the Civil Code, Food & Agricultural Code, and the Health & Safety Code. In general these measures, like the federal law, provide qualified immunity to persons or organizations that donate food products to be used by needy persons, "free of charge" or "without charge." The common goal of these several statutes is to encourage food donation by providing some relief from liability for the potential harm of tainted food to persons who ultimately consume the food.

Alleged Limitations of Existing Law: In addition to the lack of clarity and consistency in the several food donation statutes, the author and co-sponsors contend that existing law – both state and federal – is inadequate in at least three ways. First, while federal law generally applies to all persons – including "gleaners" who typically rescue rejected produce that is still fit for human consumption – California law only affords immunity to food banks and nonprofit charitable organizations. Second, both state and federal law primarily affords protection to persons or entities that donate food to food banks or charitable organizations for eventual human consumption, but does not generally afford immunity for donations made directly to end users. Third, existing law does not extend immunity to donations of food that exceeds a manufacturer's or packager's "shelf life" date.

The bill distinguishes between perishable and nonperishable foods that exceed a labeled shelf life date. Extending immunity to donations of food that exceeds the "shelf life" date seems particularly important to the co-sponsors and most, if not all, of the bill's many supporters. The "shelf life" date typically takes the form of a "sell by," "use by," or "best used by" date that appears on the food packaging. By not authorizing or granting immunity for donated food that has exceeded its shelf life date, existing law results in much wholesome food going to landfills, instead of to needy people. However, it is important to note that some "shelf life" or "use by" dates may indicate that the food product is unsafe if consumed after that date. This is especially true of perishable foods, especially meats, unless they are frozen before the expiration date. However, just as often, the "shelf life" date speaks not to the safety but to the quality of the food. For example, using a package of dried pasta after a "best used by date" is not unsafe, even if the quality of the market is marginally diminished. In order to better distinguish between the donation of perishable and nonperishable foods beyond a shelf life date, the bill provides qualified immunity for the donation of nonperishable foods that exceed the manufacturer's recommended shelf life date. However, qualified immunity will only be extended to donations of nonperishable foods that have exceeded the shelf life date if the donor makes a good faith evaluation that the donated food is wholesome and fit for human consumption.

"Qualified" Immunity for Good Samaritans: Existing Civil Code Section 1714.25 purports to grant immunity from civil liability to a food donor, "except for injury resulting from negligence or a willful act." [Emphasis added.] The Legislature has, on several occasions, offered "qualified" or "limited" immunity to "good Samaritans" in order to encourage people to take selfless and charitable actions to help others, without any expectation of reward or compensation. Because as a matter of public policy the state wants people to come to the aid of others, albeit in a responsible manner, the Legislature has offered "qualified" immunity to "good Samaritans" in various contexts. On the other hand, we do not want an overzealous rescuer to act in such a reckless manner that the rescue results in greater harm to the person who is rescued than would have occurred in the event that there had been no rescue attempt at all.

Similarly, while we want to encourage people to donate food to people in need, we do not want them to do so with such reckless disregard for the safety of the donated food that food which is obviously not fit for human consumption is donated, or to donate food they know or should know is not fit for human consumption.

Immunity restricted to persons and entities who donate food free of charge. The other approach that this Committee has consistently endorsed is only granting "good Samaritan" immunity to persons who engage in the good act without compensation. For example, the statute granting qualified immunity to a person rendering emergency cardiopulmonary resuscitation (CPR) does not apply to any person who renders such care "with the expectation of receiving compensation from the individual for providing the emergency care." (Civil Code Section 1714.2.) The statute that grants qualified immunity to a person who renders emergency care with the use of an AED defibrillator likewise only applies to a person who "in good faith and not for compensation, renders emergency care . . . by use of an AED at the scene of an emergency." (Civil Code Section 1714.21.) Immunity for a person who renders aid by use of an Epinephrine Auto-Injector ("Epi-Pen") similarly only applies when the person who administers the device does so "in good faith and not for compensation." (Civil Code Section 1714.23.) California's general Good Samaritan law, that grants qualified immunity to a person rendering medical or non-medical aid at the scene of an emergency–regardless of what device is used, if any–also restricts its application to persons who act in "good faith, and not for compensation." (Health & Safety Code Section 1799.102) Not surprisingly, the food donations statutes that this bill seeks to amend restrict immunity to person's who act "without charge" or "free of charge." (See e.g. Civil Code Section 1714.25 (b); Food & Agricultural Code Section 58502 (a); Health & Safety Code Section 114432 (a).) Consistent with these principals, this bill would restrict good Samaritan immunity to persons who act "without charge" and "not for compensation."

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0000191

Date of Hearing: April 26, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 1219

Author:(Eggman) – As Amended Ver:April 3, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill expands existing immunity provided to charitable organizations that donate food. Specifically, this bill:

1. Provides qualified immunity to “gleaners”—individuals or organizations that harvest food left in fields after the primary harvest to donate to those in need—to protect them from civil liability if someone is harmed by the donated food.
2. Clarifies that the immunity provided to a food facility, a person, or a gleaner applies for donations made directly to end users.
3. Specifies that immunity provided to persons or organizations extends to the donation of nonperishable food that is past the shelf life date, but is still fit for consumption.
4. Requires health enforcement officers to promote the recovery of food fit for human consumption. This includes at a minimum a specific statement on food facility inspection reports in bold print and contrasting colors that encourages food facilities to donate food and informs them of the immunity provided.

FISCAL EFFECT:

This bill would not create a reimbursable mandate because costs associated with the requirement for health enforcement officers to promote the recovery of food could be recovered by the fees charged for the inspection of food facilities.

COMMENTS:

1. Background. Existing law provides that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the food. Existing law also extends this immunity to the nonprofit charitable organization and/or food bank that receives donated food and distributes it without charge to those in need of food.
2. Purpose. According to the author, existing law—both state and federal—is inadequate in at least three ways. First, while federal law generally applies to all persons—including gleaners who typically harvest rejected produce that is still fit for human consumption—California law only affords immunity to food banks and nonprofit charitable organizations. Second, both state and federal law primarily affords protection to persons or entities that donate food to food banks or charitable organizations for eventual human consumption, but does not generally afford immunity for donations made directly to end users. Third, existing law does not extend immunity to donations of food that exceed a manufacturer's or packager's shelf life date. In addition, the author states that “There is no education and awareness component for food donor protection laws. In order to provide education and awareness, Environmental Health Officers will be required to promote the donation of edible food for human consumption.”

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing:

ASSEMBLY COMMITTEE ON

, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUBJECT:

KEY ISSUES:

1. should provisions in existing law that provide qualified immunity to food banks and charitable organizations that donate food to needy people be extended to other persons, including "Gleaners," and to donations made directly to end users?
2. Should the existing qualified immunity for food donors be extended to donations of food that exceeds a labeled shelf life, so long as the food is still fit for human consumption?
3. should the existing qualified immunity for organizations that donate food to the needy be extended to food banks or charitable organizations that charge for food?

SYNOPSIS

California, like many other places in the world, has two related and mutually resolvable problems. On the one hand, on any given day, Californians throw away tons of wholesome food that eventually finds its way into already over-burdened landfills. On the other hand, on any given day, too many Californians go hungry. This bill is like one of those little light bulbs floating above the heads of comic strip characters: "Let’s redirect food from landfills to hungry people and kill two birds with one stone!" Existing federal and state law already encourages this – feeding the hungry that is, not killing birds – by affording qualified immunity to organizations that donate food to those who suffer from "food insecurity" (commonly known as hunger). However, according to the author and co-sponsors, existing law is inadequate. For example, existing law does not offer immunity for donations of food with expired shelf life dates, even when such food is still safe to eat. Also, in most instances, existing law only provides immunity when donations go to a charitable organization, but not when donations are made directly to the end user. Finally, existing law provides immunity to food banks or charitable organizations, but not to "gleaners" who "second harvest" wholesome fruits and vegetables that are discarded in orchards and fields, largely because of unattractive appearance. Co-sponsored by the California Association of Food Banks and Californians Against Waste, this bill seeks to address these perceived inadequacies in existing law. While the Committee supports most of the proposed changes to existing law, the bill would also eliminate the provision in existing law that limits the immunity to those donations made "without charge." For reasons discussed in the analysis, the Committee recommends amending the bill to restore the requirement that donations are made without charge. The Committee also recommends other amendments that will clarify the scope of the qualified immunity provided in the bill. The bill is supported by several food banks and related organizations across the state. While there is no registered opposition to the bill, Consumer Attorneys of California express concern that the donor's "fear of liability" is most likely unwarranted and the immunities proposed in the bill are overly broad.

SUMMARY: Expands existing provisions of the Civil Code, Food and Agricultural Code, and Health and Safety Code, relating to civil immunities and liabilities of entities that donate food fit for human consumption, to charitable organizations and food banks. Specifically, this bill:

1. Provides that no person, gleaner, or food facility that donates food that is fit for human consumption to a nonprofit charitable organization, a food bank, or directly to end users shall be civilly liable for any damage or injury resulting from the consumption of donated food, unless the damage or injury is a direct result of the gross negligence or willful misconduct of the donor. Specifies (consistent with existing law) that this qualified immunity from civil liability applies regardless of compliance with laws and regulations regarding the packaging or labeling of food, and regardless of compliance with laws and regulations regarding the storage and handling of the food by the donee after the donation of the food.
2. Specifies that the donation of food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer or is mislabeled is protected under the provisions of this bill.
3. Provides that a person or gleaner engaged in the business of processing, distributing, or selling an agricultural product may donate a product that is fit for human consumption, including, but not limited to, food that has exceeded the labeled shelf life date recommended by the manufacturer to a nonprofit charitable organization within the state or directly to end recipients.
4. Provides that a person, gleaner, or food facility may donate food directly to end recipients, to a food bank, or to any other nonprofit charitable organizations for distribution to persons. Specifies that a person, gleaner, or food facility that donates food pursuant to this provision shall not be subject to civil or criminal liability for violation of any laws or regulations regulating the labeling or packaging of the donated product, or for a violation occurring after the time of the donation.
5. Requires health enforcement officers to promote the recovery of edible food for human consumption by, among other things, prominently displaying on a food facility inspection a statement encouraging food facilities to donate food to a local food bank and informing the facility of the qualified immunity provided under this bill.

EXISTING LAW:

1. Provides that every person is responsible, not only for the results of his or her willful acts, but also for injury occasioned to another by his or her want of ordinary care. (Civil Code Section 1714.)
2. Provides that a food facility that donates any food that is fit for human consumption at the time it was donated to a nonprofit charitable organization or food bank is not liable for any damage or injury resulting from the consumption of the donated food, unless the injury resulted from negligence or a willful act in the preparation or handling of the food. (Civil Code Section 1714.25 (a).)
3. Provides that a nonprofit or charitable organization or food bank that, in good faith, receives and distributes food without charge that is fit for human consumption at the time it was distributed is not liable for an injury or death caused by ingesting the food unless the injury or death is a direct result of the negligence, recklessness, or intentional misconduct of the organization. (Civil Code Section 1714.25 (b).)
4. Permits a person engaged in the business of processing, distributing, or selling an agricultural product to donate, free of charge, a product that is in a condition that may be used as human food to a nonprofit charitable organization. However, this provision does not relieve any nonprofit charitable organization from any liability for any injury, including, but not limited to, injury resulting from ingesting the product, as a result of receiving, accepting, gathering, or removing any donated food. (Food and Agricultural Code Sections 58502 and 58506.)
5. Permits a food facility to donate food to a food bank or to any other charitable organization for distribution to persons free of charge. Specifies that no food facility that donates food pursuant to this provision shall be subject to civil or criminal liability, or penalty for violation of any laws or regulations regarding the labeling or packaging of the donated product, or for a violation of other laws or regulations occurring after the time of the donation. Specifies that the immunities provided by this provision are in addition to any other immunity provided by law. (Health & Safety Code Sections 114433, 114433, and 114435.)
6. Provides, under the federal Bill Emmerson Good Samaritan Food Donation Act, that a person or gleaner is not subject to civil or criminal liability for harms 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. Provides further that the nonprofit organization is not subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food that the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals. Specifies, however, that this protection from liability shall not apply to harm caused by an act or omission of the person, gleaner, or nonprofit organization, as applicable, constituting gross negligence or intentional misconduct. (42 USC Section 1791.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: According to the Harvard Food Law and Policy Clinic, food donation provides a "critical link between organizations with wholesome, surplus foods and the 42 million Americans who are food insecure today." Other groups, such as the Natural Resources Defense Council (NRDC) and Solid Waste Association of North America (SWANA) point to environmental problems, including methane emissions, associated with placing surplus food and organic waste in landfills. If there are groups ready and willing to donate food and hungry people that need the food; and if discarded food in landfills creates environmental problems, then why is so much wholesome and edible food wasted when it could feed hungry people? According to a 2016 survey by a task force of the Food Waste Reduction Alliance, a food industry group, the reason for this mismatch of supply and demand is because those who have surplus food to donate (such as restaurants and retailers) fear liability in the event tainted food should cause illness, or even death. Donors, for example, have no control over the food once it is donated. It may be that these fears of liability are unwarranted, as the CAOC notes in its letter of "concern" to the Committee. For example, it seems highly unlikely that a person or group that donated reasonably safe food to a charitable organization would be liable for harm if the organization that received the donation subsequently and negligently mishandled the food. Nonetheless, if potential donors believe that they could be sued for making a donation, this mere belief, however unfounded, could be an obstacle to donation. Both federal and California law have recognized that fear of liability can discourage food donations. For example, the federal "Bill Emmerson Good Samaritan Food Donation Act of 1996" provides that a person or "gleaner" who, in good faith, donates "apparently wholesome" food to a nonprofit organization is not liable for any harm caused by the food, unless the harm was caused by the gross negligence or intentional misconduct of the donor. The Emmerson Act also protects from liability the nonprofit organization that, in good faith, receives and distributes food to needy persons, unless the harm is caused by gross negligence or intentional misconduct of the recipient or distributor.

California Food Donations Laws: About twenty years before Congress enacted the Emmerson Act, California enacted SB 199 in 1977. SB 199 offered "qualified" immunity (i.e. no liability except for acts of gross negligence or willful misconduct) to donors of food; it also granted a tax deduction equal to the cost of the donated food. In subsequent years, the Legislature added similar provisions to the Food & Agricultural Code (specifically for agricultural products) and to the Health & Safety Code (for a "food facility," as defined by the Health & Safety Code.) As a result of these several measures, California's food donation law is now scattered among the Civil Code, Food & Agricultural Code, and the Health & Safety Code. These measures differ somewhat as to whom they apply: some apply to "persons," others to "charitable organizations," and others apply to "food facilities;" they also differ in terms of the recipient of the donated food (a food bank or an end-user, for example). In general these measures, like the federal law, provide qualified immunity to persons or organizations that donate food products to be used by needy persons, "free of charge" or "without charge." The common goal of these several statutes is to encourage food donation by providing some relief from liability for the potential harm of tainted food to persons who ultimately consume the food.

Alleged Limitations of Existing Law: In addition to the lack of clarity and consistency in the several food donation statutes, the author and co-sponsors contend that existing law – both state and federal – is inadequate in at least three ways. First, while federal law generally applies to all persons – including "gleaners" who typically rescue rejected produce that is still fit for human consumption – California law only affords immunity to food banks and nonprofit charitable organizations. Second, both state and federal law primarily affords protection to persons or entities that donate food to food banks or charitable organizations for eventual human consumption, but does not generally afford immunity for donations made directly to end users. Third, existing law does not extend immunity to donations of food that exceeds a manufacturer's or packager's "shelf life" date.

The bill should be amended to distinguish between perishable and nonperishable foods that exceed a labeled shelf life date. Extending immunity to donations of food that exceeds the "shelf life" date seems particularly important to the co-sponsors and most, if not all, of the bill's many supporters. The "shelf life" date typically takes the form of a "sell by," "use by," or "best used by" date that appears on the food packaging. By not authorizing or granting immunity for donated food that has exceeded its shelf life date, existing law results in much wholesome food going to landfills, instead of to needy people. However, it is important to note that some "shelf life" or "use by" dates may indicate that the food product is unsafe if consumed after that date. This is especially true of perishable foods, especially meats, unless they are frozen before the expiration date. However, just as often, the "shelf life" date speaks not to the safety but to the quality of the food. For example, using a package of dried pasta after a "best used by date" is not unsafe, even if the quality of the market is marginally diminished.

In order to better distinguish between the donation of perishable and nonperishable foods beyond a shelf life date, the Committee recommends an amendment (see below) that will provide qualified immunity for the donation of nonperishable foods that exceed the manufacturer's recommended shelf life date. However, qualified immunity will only be extended to donations of nonperishable foods that have exceeded the shelf life date if the donor makes a good faith evaluation that the donated food is wholesome and fit for human consumption.

"Qualified" Immunity for Good Samaritans: Existing Civil Code Section 1714.25 purports to grant immunity from civil liability to a food donor, "except for injury resulting from negligence or a willful act." [Emphasis added.] Arguably, this language does not grant any immunity from liability, because liability in tort only attaches where the tortious harm is caused by a person's negligence – that is, liability only attaches when a person is not exercising reasonable care under the circumstances. Unless there is at least negligence on the part of the defendant, there is no liability for injury; therefore, to say that a person is not liable unless negligent is simply to restate the standard threshold of liability. The legislature has, on several occasions, offered "qualified" or "limited" immunity to "good Samaritans" in order to encourage people to take selfless and charitable actions to help others, without any expectation of reward or compensation. This approach is evident in statutes that provide "qualified" (not absolute) immunity to persons who render medical aid in an emergency, often at risk to their own safety. Because as a matter of public policy the state wants people to come to the aid of others, albeit in a responsible manner, the Legislature has offered "qualified" immunity to "good Samaritans" in various contexts.

The standard that the Legislature has most often used, and the approach that this Committee has consistently supported, is to grant immunity to good Samaritans unless the harm caused by the act of the good Samaritan is the result of the person’s "gross negligence or intentional (or willful) misconduct." In the case of a person who renders emergency medical aid, we do not want that person to hold back offering aid because of fear of liability. More generally, we do not want to punish a person volunteers to come to the aid of another because the person made an honest but potentially negligent mistake that ends up harming the rescued person. On the other hand, while we applaud the person who comes to the aid of another, we do not want an overzealous rescuer to act in such a reckless manner that the rescue results in greater harm to the person who is rescued than would have occurred in the event that there had been no rescue attempt at all. Similarly, while we want to encourage people to donate food to people in need, we do not want them to do so with such reckless disregard for the safety of the donated food that food which is obviously not fit for human consumption is donated, or to donate food they know or should know is not fit for human consumption. [Note: Common or ordinary "negligence" is the failure to use the "standard of care" of a "reasonably prudent person." "Gross negligence" goes beyond this to require "reckless disregard" for the safety of others. (Black's Law Dictionary, 5^th Edition.)]

Should immunity be restricted to persons and entities who donate food free of charge? The other approach that this Committee has consistently endorsed is only granting "good Samaritan" immunity to persons who engage in the good act without compensation. For example, the statute granting qualified immunity to a person rendering emergency cardiopulmonary resuscitation (CPR) does not apply to any person who renders such care "with the expectation of receiving compensation from the individual for providing the emergency care." (Civil Code Section 1714.2.) The statute that grants qualified immunity to a person who renders emergency care with the use of an AED defibrillator likewise only applies to a person who "in good faith and not for compensation, renders emergency care . . . by use of an AED at the scene of an emergency." (Civil Code Section 1714.21.) Immunity for a person who renders aid by use of an Epinephrine Auto-Injector ("Epi-Pen") similarly only applies when the person who administers the device does so "in good faith and not for compensation." (Civil Code Section 1714.23.) California's general Good Samaritan law, that grants qualified immunity to a person rendering medical or non-medical aid at the scene of an emergency–regardless of what device is used, if any–also restricts its application to persons who act in "good faith, and not for compensation." (Health & Safety Code Section 1799.102) Not surprisingly, the food donations statutes that this bill seeks to amend restrict immunity to person's who act "without charge" or "free of charge." (See e.g. Civil Code Section 1714.25 (b); Food & Agricultural Code Section 58502 (a); Health & Safety Code Section 114432 (a).)

This bill would remove the words "without charge" from the immunity existing provision in the Civil Code. It is not clear if the author and sponsor also intend to remove the words "free of charge" from the immunity provisions in the Food & Agriculture and Health & Safety codes. In any event, it is the long-standing practice of this Committee, and the apparent intent of the Legislature, to restrict good Samaritan immunity to persons who act "without charge" and "not for compensation." Therefore, the Committee strongly urges that the words "without charge" be restored, as is noted in the list of proposed Committee amendments below.

PROPOSED COMMITTEE AMENDMENTS: The Committee recommends the following clarifying and substantive amendments in order to make this bill conform to previous grants of qualified immunity to good Samaritans, and to clarify the extent to which qualified immunity applies to a donation of food that is past its labeled shelf life.

• On page 4, line 15 strike "a willful act" and insert: intentional misconduct
• On page 4, starting in the middle of line 26 and running through line 29 delete the sentence that reads, "The donation of food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer or is mislabeled is protected under the California Good Samaritan Food Donation Act. " And instead insert:

The donation of non-perishable food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the California Good Samaritan Food Donation Act. The donation of perishable food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the California Good Samaritan Food Donation provided that the donee makes a good faith evaluation that the food to be donated is wholesome.

• On page 4, line 31, after "food" insert: without charge
• On page 4, line 34 strike "negligence, recklessness," and insert: gross negligence
• On page 5, delete lines 7 through 10 and renumber accordingly.
• On page 6, delete lines 21-26 and insert:

The donation of non-perishable food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the California Good Samaritan Food Donation Act. The donation of perishable food that is fit for human consumption but that has exceeded the labeled shelf life date recommended by the manufacturer is protected under the California Good Samaritan Food Donation provided that the donee makes a good faith evaluation that the food to be donated is wholesome.

• On page 7, lines 6-7, strike "you knowingly donate adulterated or contaminated food" and insert: unless the injury is a direct result of your gross negligence or intentional misconduct in the preparation of handling of the donated food.

ARGUMENTS IN SUPPORT: Californians Against Waste (CAW), one of the co-sponsors of the bill, argues that AB 1219 "will clarify and expand on existing protections for good faith food donors in order to encourage increased food donations." CAW writes that "food is the single most prevalent material in California's waste system, with over 5.5 million tons of food landfilled every year." Food and other organic wastes, CAW claims, release 8.3 million tons of greenhouse gases each year in California, contributing to 20 percent of the state's methane emissions. This food goes to waste, CAW notes, even though much of it is still "wholesome and edible." In addition to the wasted resources that were used to grow, process, and transport this food, CAW argues that such waste reflects a squandered "opportunity to utilize that food to its full potential and feed individuals in need. This is especially crucial since the state faces a hunger crisis that affects one in eight Californians, including one in four children."

CAW explains the dilemma of wasting food while many go hungry by pointing to a 2016 survey conducted by the Food Waste Reduction Alliance which found that "44% of manufacturers, 25% of retailers and wholesalers, and 39% of restaurants identified liability concerns as a top barrier to donating food." This general reluctance is made worse, it seems, because existing law relating to immunity for food donors "lacks clarity in certain provisions and is somewhat limited in scope." CAW adds that this measure will help California meet "organic waste diversion and food recovery goals, such as those set by SB 1383, and will also encourage more donations to organizations who seek to redistribute food." Several food banks, charitable groups, and conservation groups from around the state support this bill for substantially similar reasons. In addition to stressing that this bill will encourage more food donation, many of these supporters also point to specific changes that this bill would make, especially the provisions that would allow otherwise safe and wholesome food to be donated past a labeled "sell by" or "best used by" date, and the provisions that would extend immunity protection to organizations that donate food directly to end users.

EXPRESSIONS OF CONCERN: Although the Consumer Attorneys of California (CAOC) supports the goal of AB 1219 and does not oppose the bill, CAOC nonetheless expresses concern about the necessity for, and breadth of, the qualified immunity in the bill. CAOC is "always concerned when statutes are proposed to address a 'fear of liability.' In this instance, not one single suit has been filed against a donator of food and we question the need for special statutory protections for negligent conduct; we are concerned about the precedent of granting broad statutory immunity solely based on fear." In addition, CAOC questions the use of the "grossly negligent" standard, "which is a very high burden to prove and highly dependent on the facts." Finally, CAOC raises questions about the provisions of the bill that grant immunity for donations of food exceeding the shelf life date for the food or food product. "There is a difference," CAOC writes, "between serving expired pasta versus expired canned beans in bulging cans." [It is unclear whether the proposed committee amendment that requires the donor to make a "good faith evaluation" of the wholesomeness of perishable foods that exceed the expiration date will satisfy this final concern.]

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Food Banks (co-sponsor)

Californians Against Waste (co-sponsor)

California Food Policy Advocates

California Grocers Association

California League of Food Processors

California Retailers Association

California Association of Nonprofits

Community Action Agency of Butte County

Emergency Food Bank

Feeding San Diego

Food Bank of Contra Costa and Solano

Food Finders

Food for People

Food Forward

Food Link of Tulare County

Food Shift

Imperial Valley Food Bank

Jacobs & Cushman San Diego Food Bank

Los Angeles Regional Food Bank

Los Angeles Food Policy Council

Merced County Food Bank

Natural Resources Defense Council

Redwood Empire Food Bank

Second Harvest Food Bank, Orange County

Second Harvest Food Bank, San Juaquin & Stanislaus Counties

Second Harvest Food Bank, Santa Cruz County

St. Francis Center

Solid Waste Association of North America (SWANA)

Yolo Food Bank

Yuba-Sutter Food Bank

Opposition

None on file

Analysis Prepared by: