Is It Legal to Donate?

Yes! Federal and state civil criminal liability protections are in place for food donors and non-profit organizations that receive and distribute food donations to those in need.

California Good Samaritan Act (AB 1219) (2017)

• Food can be donated to an individual or gleaning organization
• Specific liability protection applies to the donation of food that is fit for human consumption that has exceeded the labeled shelf life date
• Authorizes permitted food donors to engage in direct donation

California Code Section 114433

• "Criminal liability - No FOOD FACILITY that donates FOOD as permitted by Section 114432 shall be subjected 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 donation."

Federal Bill Emerson Good Samaritan Food Donation Act (1996)

• Food must be donated to a nonprofit
• Food must meet all federal, state, and local quality and labeling requirements; if it does not, the food must be reconditioned to meet all requirements
• The receiving nonprofit organization must distribute it to needy individuals
• Needy individuals receiving the food may not pay for it, however, if one nonprofit donates food to another nonprofit for distribution, the Act allows the first nonprofit to charge the distributing nonprofit a nominal fee to cover handling and processing costs

Food Donation Improvement Act (2023)

Improves and expands on the liability protections from the Bill Emerson Good Samaritan Food Donation Act (1996):

1. Liability protections now cover qualified direct donors (e.g., schools, restaurants, caterers, grocery stores, farmers) who donate good food directly to individuals or groups other than nonprofits. Previously, liability protections were only afforded to qualified donors if they donated the food to a 501(c)(3) organization.
2. Liability protections now cover nonprofit organizations and others that provide donated food products at a low price (an amount that covers the cost of handling, administering, and distributing the food). This means that food pantries and other food distribution sites have the option to charge a small amount of money for food to help cover their operational costs.
   
3. Learn more and download resources from NRDC.

Are there Tax Incentives?

Business donors are eligible for an enhanced tax deduction for donations that meet certain criteria.

Tax Deduction Criteria:

• The recipient food recovery organization or donee must be an IRC 501(c)(3) organization and a public charity or private operating foundation.
• The donee must give the donated food solely to the ill, the needy, or infants.
• The donee may not use or transfer the food in exchange for money, other property, or services.
• The donee must provide a written statement to the donor stating that all requirements of IRC 170(e)(3) have been met.
• The donated food must be in compliance with the Food, Drug, and Cosmetic Act (FDCA) and California Health and Safety Code (CHSC).
• Learn more and download resources from NRDC.