Good Faith, Bad Food

Assessing liability when food donations lead to illness

July 18, 2020 Photo

Food donations provide not only vital opportunities to combat food insecurity, but also valued tax deductions for contributions to qualified agencies. But what if donated foods become an immediate cause of a nationwide product recall or associated food-borne outbreak? Who then is to be held harmless? Can divergent practices and processes increase legal risks for critical food-donation programs as recipient populations experience economic downturns?

Many cases of addressing community hunger involve specific classifications of food surpluses that support accessibility via local organization networks. These networks often communicate differing judgments about the quality, handling methods, transportation conditions, and storage of food.

The cause of widespread food-borne outbreaks—and recurring exposures to pathogens such as Listeria and E. Coli contamination—often remains speculative without complete traceability to a single farm and facility of origin. However, the Food and Drug Administration (FDA) will pursue its 2020 Leafy Greens STEC Action Plan to apply closer scrutiny on third-party auditors used by entities to gain food-safety certification. State and local health agencies provide such data for preventative measures, but they depend on timely surveillance reports.

Donations and “Good Faith”

Perhaps addressing these concerns depends on how agencies commonly define “good faith” standards, and whether the traceability of gross negligence is possible along surplus food-supply chains and post-product lifecycle phases. A donation performed in good faith, according to the Public Health Law Center at William Mitchell College of Law, requires honest actions absent of violated food or product regulations. The challenge is that determining such intent is often a matter of examining required data across an extended network of producers, manufacturers, distributors, and suppliers.

Food donations often involve promoting causes like “food justice” to create a socially responsible effort to address disparity and inequity, notwithstanding enterprise-level risk. The Department of Homeland Security estimates that one-fifth of all U.S. economic activity comes from 2.2 million farms and 900,000 restaurants. Therefore, there is a reasonable expectation that food donations and safety-management systems apply to public health and safety.

The push to reduce landfills and food insecurity has only become desirable to corporate, individual, and small retailers since Congress passed the Bill Emerson Good Samaritan Act of 1996. The Environmental Protection Agency (EPA) and United States Department of Agriculture (USDA) determined that 27 percent of America’s annual food capacity enters U.S. waste streams, according to studies the two agencies published the following year. Large populated areas, such as metro Atlanta, exist in what the USDA defines as “food deserts,” which exist beyond one mile from fresh produce and nutritionally healthy whole foods. According to the Atlanta Journal Constitution, the city’s food desert population comprises two million households—home to 500,000 children.

Legal Precedence

Some major causes of food spoilage include microorganisms, enzymes, air, light, pests, damage, temperature, and time. Injuries or illnesses resulting from unsafe food consumption are often governed by varying state laws. However, the Bill Emerson Good Samaritan Act uses partial preemption to protect charitable food donors from state and federal regulatory complications when it comes to the donation, recovery, and distribution of excess food. The act represents an amendment of Title IV that converts the National and Community Service Act of 1990 into permanent language within the Child Nutrition Act of 1966.

While there are increasingly risky aspects to this worthy cause, amid continued growth of hunger and perishable food demand this legal protection enables donors to avoid unforeseeable liabilities resulting from recipient consumption. Title 7 Code of Federal Regulations, parts 250 and 251 stipulate that food banks and agencies follow specific food safety and commodity procurement requirements. Some of the highest risks to nutritional value derive from perishable food donations under official safety precautions, using time and temperature controls. Perishable food donations also require heightened risk awareness to avoid unsanitary food-handling practices, processes, and storage functions that negatively impact public health and access to donated food.

The COVID-19 pandemic signals even greater risk to local economies, as concerns exist regarding whether the virus can permeate or even become transmissible from packaging and food-handling surfaces. The increased impacts of this outbreak on local food-service markets, particularly restaurants, cause significant declines in business demand necessary to maintain local economic activity and tax revenues.

Importantly, the dangers of gross negligence in the food industry often stem from long-term systemic inefficiencies as massive undertakings of city food inspections wane, increasing risks to food resources. In 2008, New York City lacked food inspections for 25,500 eateries, spanning over 18 months while the Health Department called for specific inspections.

Annually, there are 31 identified food-borne germs causing the illness of 9.4 million people in the United States, according to estimates by the Centers for Disease Control and Prevention (CDC). The World Health Organization (WHO) estimates that almost one in every 10 people suffers illness from contaminated food worldwide, while 40 percent of global food-borne diseases burden children under five years of age.

The lack of standardized contamination and recall insurance policies will continue to prevent food supply chains from leveraging infrastructure resources systematically responding to food safety threats. While these and many other ongoing challenges accompany current food safety best practices, they also necessitate alternative models for safe food donation, amid biases and legal limitations. Food-donation networks will need clarity as to the identity of stakeholders throughout inspection frameworks as emerging moral hazards impact the sustainability of public trust and public health policies protecting food insecure populations. 

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About The Authors
Akiya Simms

Akiya Simms is the risk, resilience, and sustainability officer for the city of Atlanta’s Department of Aviation. akiya.simms@atl.com

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