The Harvard Law and Policy Clinic recently posted three legal facts sheets regarding food donation in Massachusetts. The topics included date labeling, tax incentives and liability protections.
Date labeling. Date labels are the dates on food packaging that are accompanied by such phrases as “use by,” “best before,” “sell by” and “enjoy by.” Date labels can lead to food waste because they are misleading to consumers and result in safe food being needlessly thrown away. Furthermore, date labels impact food donation in Massachusetts, because state law sets additional conditions on the sale or donation of any food once the labeled date has passed.
Currently, there is no federal law regulating date labels. Since federal law is so limited, states have broad discretion to regulate date labels. As a result, inconsistent labeling laws exist nationwide. What has been consistent, however, is food manufacturers’ practice of basing these dates on optimal food quality and freshness, not on food safety. Despite this fact, many consumers continue to believe that date labels are related to food safety. However, no link has been shown between eating food after its labeled date and food-borne illness.
Despite the evidence that date labels are unrelated to food safety, Massachusetts — along with 19 other states and the District of Columbia — sets additional conditions on the sale or donation of any food once the labeled date has passed, making it more difficult to donate food to those in need. Much of this food ends up buried or incinerated.
Tax incentives. Federal tax incentives provide important financial motivation to make food donation more cost effective and economically beneficial. These tax incentives have been extraordinarily successful in motivating food donation. After federal tax incentives for food donations were temporarily expanded to cover more businesses in 2005, food donations across the country rose by 137 percent.
While in some states federal tax incentives may be augmented by state tax incentives, Massachusetts has no such state-level policy.
Liability protections. Businesses and nonprofits that provide or receive donated food are generally well protected by laws designed to provide immunity from liability related to such donations. The federal Bill Emerson Good Samaritan Food Donation Act provides liability protection for food donors; the Massachusetts Good Samaritan law provides additional liability protection to businesses.
Federal law and Massachusetts state law provide ample liability protections for food donors, so long as the donated food is in compliance with state safety and labeling rules, and it’s donated in good faith and without the donor acting with gross negligence, recklessness or intentional misconduct.