David Robert Lambert

The Bill Emerson Good Samaritan Food Donation Act encourages the donation of food and grocery products to nonprofit organizations for distribution to needy individuals by giving the Model Good Samaritan Food Donation Act the full force and effect of law. The act provides limited liability protection, both civil and criminal, for those who donate and distribute food and groceries. This law:

o Protects you from liability when you donate to a non-profit organization,

o Protects you from civil and criminal liability should the product donated in good faith later cause harm to the recipient, and

o Standardizes donor liability exposure.

The Act protects backyard gardeners, farmers, gleaners, restaurants, retail grocers and manufacturers, caterers, food banks, nonprofit food distributors, food trucks, school food authorities and institutions of higher education.

However, kitchens that create meals from donated food and then sell the meals at extremely low prices in underserved neighborhoods are not covered. For a donation to be covered by the act, the ultimate recipients of the food or grocery items must not be required to give anything of value.

The act expressly covers donations by food banks and nonprofit food distributors. The following are classified as “Food Banks, Food Pantries (K31)” and as such, are covered by the Act:

o Capital Area Food Bank
o Celestial Manna
o Manna Food Center
o Maryland Food Bank
o Nourish Now

The Bill Emerson Good Samaritan Food Donation Act preempts state “Good Samaritan” statutes that provide less protection from civil and criminal liability arising from food donated in good faith for distribution to the needy than the Act provides.

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RESOURCES (accessed 03/30/2021)

Bill Emerson Good Samaritan Food Donation Act
Public Law 104–210, 104th Congress, October 1, 1996
https://www.govinfo.gov/content/pkg/PLAW-104publ210/pdf/PLAW-104publ210.pdf

42 U.S. Code § 1791 – Bill Emerson Good Samaritan Food Donation Act
Cornell Law School, LII > U.S. Code > Title 42 > CHAPTER 13A > § 1791
https://www.law.cornell.edu/uscode/text/42/1791

Bill Emerson Good Samaritan Food Donation Act
October 1, 1996
https://www.feedingamerica.org/about-us/partners/become-a-product-partner/food-partners

Good Samaritan Act Provides Liability Protection For Food Donations
March 9, 2021
https://www.usda.gov/media/blog/2020/08/13/good-samaritan-act-provides-liability-protection-food-donations

Preemptive Effect of the Bill Emerson Good Samaritan Food Donation Act
DAWN E. JOHNSEN, Acting Assistant Attorney General, Office of Legal Counsel
March 10, 1997
https://www.justice.gov/sites/default/files/olc/opinions/1997/03/31/op-olc-v021-p0055_0.pdf

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On April 17, 2020, U.S. Secretary of Agriculture Sonny Perdue announced the Coronavirus Food Assistance Program (CFAP).  This new U.S. Department of Agriculture (USDA) program will take several actions to assist farmers, ranchers, and consumers in response to the COVID-19 national emergency.  President Trump directed USDA to craft this $19 billion immediate relief program to provide critical support to our farmers and ranchers, maintain the integrity of our food supply chain, and ensure every American continues to receive and have access to the food they need.

“During this time of national crisis, President Trump and USDA are standing with our farmers, ranchers, and all citizens to make sure they are taken care of,” Secretary Perdue said.  “The American food supply chain had to adapt, and it remains safe, secure, and strong, and we all know that starts with America’s farmers and ranchers. This program will not only provide immediate relief for our farmers and ranchers, but it will also allow for the purchase and distribution of our agricultural abundance to help our fellow Americans in need.”

CFAP will use the funding and authorities provided in the Coronavirus Aid, Relief, and Economic Security Act (CARES), the Families First Coronavirus Response Act (FFCRA), and other USDA existing authorities.  The program includes two major elements to achieve these goals.

• Direct Support to Farmers and Ranchers
• USDA Purchase and Distribution

On top of these targeted programs, USDA will utilize other available funding sources to purchase and distribute food to those in need.

As a food supplier to low-income families and others who are food insecure, this second point is of most interest to us here in the metro DC region of Maryland, District of Columbia and Northern Virginia.

USDA will partner with regional and local distributors, whose workforce has been significantly impacted by the closure of many restaurants, hotels, and other food-service entities, to purchase $3 billion in fresh produce, dairy, and meat. USDA will begin with the procurement of:

• $100 million per month in fresh fruits and vegetables
• $100 million per month in a variety of dairy products
• $100 million per month in meat products

This “Farmers to Families Food Box Program” will provide a preapproved box of fresh produce, dairy, and meat products to food banks, community- and faith-based organizations, and other nonprofits serving Americans in need.  Although farmers and industry experts feel that CFAP is a woefully inadequate response to both the oversupply of unpurchased produce and the demand for food, food banks, and local food pantries should be thankful for what they can get through this program.

Suppliers will package these products totaling $1.2 billion into family-sized boxes, then transport them to food banks, community and faith-based organizations, and other non-profits serving Americans in need from May 15 through June 30, 2020.  AMS may elect to extend the period of performance of the contracts, via option periods, dependent upon program success and available remaining funds, up to $3 billion.

Any entity that provides to the supplier proof of its 501(c)(3) tax-exempt status or a government entity (e.g. school food authority, Indian tribe) and who can demonstrate that they have the operational and financial capability to receive, store and distribute requested food items is eligible to receive food from contracted distributors.  Through its contracting process, USDA will require that distributors participating in the program maintain records showing their deliveries have occurred to appropriate non-profit organizations.  Non-profit organizations will be responsible for timely distribution of food.  Food banks and other non-profits may work with identified distributors serving their area to assist in the distribution process.

Contractors must submit an invoicing package that indicates the number of boxes delivered, contents of the boxes, and proof of delivery to a non-profit or other organization in the contract.  There are no reporting requirements for the non-profit or government organizations.

USDA will not be purchasing bulk shelf-stable items through the Farmers to Families Food Box Program.  However, through USDA’s existing programs and additional funding provided by Congress USDA will be making additional purchases of these products.  These will include purchases made with Section 32, Families First Coronavirus Response Act and CARES Act funds and made available to the Emergency Food Assistance Program (TEFAP).

In our area, produce and shelf-stable items are available through the Capital Area Food Bank, a member of Feeding America.  The Capital Area Food Bank leads our region’s efforts to provide good, healthy food to people struggling with hunger and food insecurity.  Each year, they source and distribute the food for over 30 million meals.  The Feeding America network is the nation’s largest domestic hunger-relief organization, working to connect people with food and end hunger.  Donors, staff, and volunteers all play an important role in efforts to end hunger in the United States.

RESOURCES

USDA Agricultural Marketing Service Overview
https://www.ams.usda.gov/about-ams

USDA Announces Coronavirus Food Assistance Program, Press Release Number 0222.20 dated 04/17/2020 (accessed 05/23/2020)
https://www.usda.gov/media/press-releases/2020/04/17/usda-announces-coronavirus-food-assistance-program

Farmers to Families Food Box Infographic (pdf) (accessed 05/23/2020)
https://www.ams.usda.gov/sites/default/files/media/FarmerstoFamiliesFoodBox.pdf

The USDA’s Plan to Feed Americans and Pay Farmers Is Not Enough, by Matt Stieb, dated 04/26/2020 (accessed 05/23/2020)
https://nymag.com/intelligencer/2020/04/usda-plan-to-feed-americans-and-pay-farmers-isnt-enough.html

Coronavirus Food Assistance Program FAQ, Last Updated: May 20, 2020 (accessed 05/23/2020)
https://www.farmers.gov/cfap/faq

USDA AMS Farmers to Families Food Box (accessed 05/23/2020)
https://www.ams.usda.gov/selling-food-to-usda/farmers-to-families-food-box

Farmers to Families Food Box Program FAQs, Published 04/27/2020 (accessed 05/23/2020)
https://www.ams.usda.gov/publications/content/farmers-families-food-box-program-faqs

Capital Area Food Bank (accessed 05/23/2020)
https://www.capitalareafoodbank.org

Feeding America (accessed 05/23/2020)
https://www.feedingamerica.org

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In 1939, Secretary of Agriculture Henry Wallace consolidated a number of bureaus and programs to create a single agency to carry out a sweeping mission.  The new Agricultural Marketing Service was charged with facilitating the efficient, fair marketing of U.S. agricultural products, including food, fiber, and specialty crops. In 2017, Agriculture Secretary Sonny Perdue announced the realignment of a number of offices within the U.S. Department of Agriculture (USDA).

USDA’s Agricultural Marketing Service (AMS) administers programs that create domestic and international marketing opportunities for U.S. producers of food, fiber, and specialty crops.  AMS also provides the agriculture industry with valuable services to ensure the quality and availability of wholesome food for consumers across the country.

The Emergency Food Assistance Program (TEFAP) is a federal program that helps supplement the diets of low-income Americans, including elderly people, by providing them with emergency food assistance at no cost.  Through TEFAP, the U.S. Department of Agriculture purchases a variety of nutritious, high-quality USDA Foods, and makes those foods available to State Distributing Agencies.

TEFAP foods include dairy products, grain & oilseed products, fruits, vegetables, nuts, beef, bison, lamb, pork, poultry, egg products, fish, and seafood.

USDA makes commodity foods available to States for distribution to low-income people through emergency food providers.  USDA also provides States with funding to assist with a small amount the storage and distribution costs for TEFAP commodities.  The amount of food each State receives out of the total amount of food provided is based on the number of unemployed persons and the number of people with incomes below the poverty level in the State.

TEFAP is a means-tested federal program that provides food commodities at no cost to Americans in need of short-term hunger relief through food providers like emergency food pantries, food banks, soup kitchens and shelters.  Here in the DC region, the Capital Area Food Bank (CAFB) participates in TEFAP.  In Montgomery County, Maryland, Manna Food Center is an authorized distributor of TEFAP food obtained from CAFB.  In the DC region, not just Montgomery County, Celestial Manna is a partner of CAFB and will be applying to become a TEFAP-authorized agency.

Food banks such as CAFB, combine TEFAP commodities and storage and distribution funding with private donations of food and funds, infrastructure, and manpower to leverage the program far beyond its budgeted amount.  In this way, TEFAP and the emergency food system exemplify an optimum model of public-private partnership.

In summary, TEFAP is a federal program that helps supplement the diets of low-income Americans by providing them with emergency food assistance at no cost.  USDA provides 100% American-grown USDA Foods and administrative funds to States to operate The Emergency Food Assistance Program.

REFERENCES (accessed 05/10/2020)

https://www.feedingamerica.org/take-action/advocate/federal-hunger-relief-programs/the-emergency-food-assistance-program

https://www.ams.usda.gov/about-ams

https://www.ams.usda.gov/sites/default/files/media/AMS_Fact_Sheet_2019.pdf

https://www.ams.usda.gov/programs-offices/ams-overview

https://www.ams.usda.gov/selling-food/becoming-approved

https://www.ams.usda.gov/selling-food/solicitations

https://www.fns.usda.gov/tefap/emergency-food-assistance-program

https://www.fns.usda.gov/tefap/tefap-fact-sheet