Why Don’t Businesses Donate Unsold and Surplus Food?

With so many people going hungry, throwing out any edible food seems pretty bizarre. So why do grocery stores and other entities discard unsold items?

Photo by NeONBRAND on Unsplash - Dumpster full of trash.

Food waste is a huge problem in many countries. It’s a challenge to solve, partially because it’s a relatively new problem, but also, it’s no one’s job in particular to solve it. As one does, when uncertain about the facts on some particular topic, I turned to Google with my first question: can businesses legally give away unsold food?

It turns out that there is no consensus on the matter. In the United States, we have the Food and Drug Administration (FDA), which is the federal entity whose purview includes regulations that affect food and healthy practices with regard to its handling. Every four years, the FDA publishes its Food Code, and state officials adapt this federal document to draw up their own versions.

But the Food Code says nothing about unsold or surplus food products. States have jurisdiction when it comes to laws pertaining to food safety and handling; the Food Code is only a guideline. But state officials receive no guidance from the FDA on the issue of food waste, in the Food Code or otherwise.

California, in partnership with the Environmental Protection Agency (EPA), has made available the Safe Surplus Food Donation Toolkit, a document that provides, among other things, guidance for people and businesses on reducing food waste and what may be done with any surplus products. It makes some sense that the EPA would be involved, considering the known negative environmental impact of food waste. It decomposes in landfills and releases greenhouse gases, in addition to the other environmental impacts of food production, transport, and sales.

Another government document that’s extremely relevant to food waste is the Bill Emerson Good Samaritan Food Donation Act (the Bill Emerson Act or BEA), which states that, so long as the donor has acted in good faith, they are not liable for any illness or injury resulting from consumption of donated food. In other words, not only is there no law against it, there is legal protection for would-be do-gooders.

If that wasn’t enough (and it isn’t), the University of Arkansas School of Law has produced a document called the Legal Guide to Food Recovery.

It’s a fantastic document. It defines the term “food recovery” as follows:

the practice of preventing surplus foodstuffs from being dumped in the trash

Simple enough. The document references the BEA and informs the reader that lawsuits are extremely uncommon. Unless you intentionally serve rotten or tainted food, your risk is essentially nonexistent. The document continues for several pages and, of the BEA, the following is among its comments:

The Bill Emerson Act aims to absolve donors of potential civil and criminal liability for injuries related to the use of donated food and grocery products, except in cases of gross negligence or intentional misconduct.

“Gross negligence or intentional misconduct,” aside, it’s perfectly legal in all 50 states to donate or give away unsold “food and grocery products.”

Okay, so why doesn’t it happen more? Why don’t businesses give away unsold items on a more routine basis?

For starters, people seem to erroneously believe that doing so is illegal or that it carries substantial legal risk. That’s understandable. Awareness needs to be dramatically increased.

But there’s more. If businesses themselves bear the responsibility of packaging and transporting food to a secondary location, it’s hard to sell them on it. It would be a different story, one imagines, if the government would provide guarantees that businesses would be reimbursed for the cost.

I think most people probably want to help others, on some level. But without actively, deliberately making it a part of their lives, doing so with any consistency is tough. Legislation doesn’t happen by accident, either, nor do changes like these in business operations.

The tasks haven’t been assigned to anyone, though. People don’t always do things that have been deemed their responsibility; however, if you hire someone whose job it is to take care of a set of tasks or to oversee a given department whose purview includes those tasks, the responsibility can be explicitly delegated.

The keyword is “explicitly.” If someone doesn’t know that they are responsible for something, they probably won’t do it.

And so, in a certain sense, we don’t so much have a legal problem or a business waste problem, or even a food problem. What we have is a hiring problem.

New kinds of jobs are being created all the time, and consulting is all the rage. Could we see more job titles like “philanthropic consultant” in the near future? I think it’s very possible. Will we see those jobs emerge on a widespread basis? The optimist in me wants to say yes, but the realist in me understands that it won’t happen without a lot of work.