BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1269 (Oropeza)
As Amended March 23, 2010
Hearing Date: April 13, 2010
Fiscal: Yes
Urgency: No
TW:jd
SUBJECT
Food Donation Liability
DESCRIPTION
This bill would require the Department of Food and Agriculture
and the Department of Public Health to post food donation
liability exemption information on their respective websites.
(This analysis reflects author's amendments to be offered in
Committee.)
BACKGROUND
A December 2004 study by the California Environmental Protection
Agency (Cal-EPA) found that discarded food was by far the most
prevalent material in the state's landfills-accounting for
approximately 14.6 percent of overall disposed wastes, or an
estimated 5.8 million tons in 2003. (Statewide Waste
Characterization Study, California Environmental Protection
Agency-Integrated Waste Management Board, December 2004, p. 5.)
More troubling is that in 2003 the UCLA Center for Health Policy
and Research reported that more than 2.9 million low-income
adults in California lacked sufficient resources to adequately
put food on the table. (Health Policy Research Brief, More Than
2.9 Million Californians Now Food Insecure - One in Three
Low-Income, An Increase in Just Two Years, UCLA Center for
Health Policy Research, June 2005, p. 1.)
The correlation between wasted food and hungry families in the
state presents a unique public policy problem considering that
the overall price of food has recently increased. According to
(more)
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news reports, the very basic food supplies, particularly flour,
milk, and eggs has risen at least 24 percent for the year ending
in February. (Sticker shock: Food prices surge, Mercury News,
March 17, 2008; see also Folks on the edge pinched by rising
prices, Sacramento Bee, March 14, 2008.) Economists' concerns
that higher food prices will continue was also confirmed by the
United States Department of Agriculture, predicting at least
another 4 percent increase for the year ahead. (Sticker shock:
Food prices surge, Mercury News.)
In the past, Congress sought to curb the overall hunger problem
by encouraging food donation programs through the Bill Emerson
Good Samaritan Food Donation Act, which makes it easier for
businesses to donate food to food banks by protecting them from
liability for injuries resulting from the consumption of the
donated food. (See Pub. L. No. 104-210, Sta. 3011.) As a
result, several states, including California, adopted similar
food donation statutes protecting food donors from civil and
criminal liability. (Civ. Code Sec. 1714.25 et seq.; Health &
Saf. Code Secs. 114432-114434; Food & Agr. Code Secs.
58501-58509.)
Despite these protections, the author argues that California
businesses remain hesitant to donate to food banks due in part
to liability concerns regarding illnesses caused from donated
food. As a result, tons of consumable food end up in
California's land fills. In order to increase the amount of
donated food to non-profit organizations and food banks and
decrease the amount of food waste going to land fills, this bill
would provide information to all California businesses
explaining their exemptions from liability under federal and
state laws.
CHANGES TO EXISTING LAW
Existing federal law protects food donors from civil and
criminal liability when they donate to food banks and food
rescue programs. (Bill Emerson Good Samaritan Food Donation
Act: Pub. L. No. 104-210.)
Existing law protects food donors from civil and 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 the
donation. (Health & Saf. Code Secs. 114432-114434.)
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Existing law limits a food facility's liability for injuries
resulting from the consumption of donated food that is fit for
human consumption at the time it is donated to a nonprofit
charitable organization, except for injuries resulting from
negligence or willful acts in the preparation or handling of the
donated food. (Civ. Code Sec. 1714.25(a).)
Existing law limits a nonprofit charitable organization or a
food bank's liability for injuries or death resulting from the
consumption of donated food that is fit for human consumption at
the time it is distributed, except for injuries or death
resulting from negligence, recklessness, or intentional
misconduct on the part of the organization. (Civ. Code Sec.
1714.25(b).)
Existing law regulates agricultural food donation from farms to
non-profit charitable organizations or food banks. (Food & Agr.
Code Secs. 58501-58509.)
Existing federal law provides a tax incentive for food
donations. (Pension Protection Act of 2006: Pub. L. No.
109-280.)
This bill would require the Department of Food and Agriculture
and the Department of Public Health to post state and federal
statutory exemptions from liability for the donation of food as
well as federal tax deduction information.
COMMENT
1. Stated need for the bill
The author writes:
Despite success of current law in donating food, California
discards tons of food that ultimately ends up in our landfills
. . . . [O]ne of the major hindrances to successful food
donation is fear that businesses will be liable for any
damages that may result from the consumption of food they have
donated.
2. Current version of the bill would have placed an unreasonable
burden on the Secretary of State
This bill would have required the Secretary of State to mail
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copies of state and federal laws regarding exemption from
liability for donated food. As currently in print, this bill
raises several concerns. First, this bill would have required
five to seven pages of information to be supplied to all
businesses every time a reminder notice was due to be mailed.
Notably, in February of this year, the Secretary of State's
office issued a Notice of Move to Statement of Information
Mailer Postcard in order to save $30,000 in costs each month.
Second, since the Secretary of State would be the sender of the
food donation liability exemption information, consumers would
begin contacting the Secretary of State's office for additional
information on the food donation liability exemption. The
Secretary of State does not typically handle such requests.
Third, special interest groups have contacted the Secretary of
State to request the Secretary of State make the public aware of
their particular information. The Secretary of State does not
distribute special interest group information to avoid selecting
one special interest over another. For these reasons, there was
concern that the Secretary of State would face the undue burden
of serious increase in costs and workload to distribute the food
donation liability exemption material. Accordingly, the author
agreed to amendments as described in Comment 4.
3. Distribution of liability exemption information will assist
businesses in their decision to donate food
This bill would make businesses aware of the exemption from
liability for food donation, which would increase food donation
to help California's hungry. Unless businesses have a reason to
seek out food liability exemptions, they remain misinformed
about food donation liability and have little incentive to
donate. As noted by Hunger Action Los Angeles, a supporter of
this bill, "[i]n meetings and conversations about donating
surplus food, it's been repeatedly clear that business owners
aren't familiar with the Good Samaritan Act, which frees food
donors from liability if surplus food was donated in good faith.
By supplying businesses with the specific exemptions for food
donations, this bill is intended to ensure that businesses are
better informed, are more willing to donate food items, and will
send less food waste to land fills. In addition, providing
businesses with potential tax deduction information regarding
food donation may elicit more food donations.
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4. Author's amendments would narrow the scope of the bill to
make the most relevant entities responsible for distributing
requested information
The purpose of this bill is to make food businesses aware of
their ability to donate food. Although the Secretary of State
is arguably not the best entity to distribute this type of
information for the reasons stated above, other governmental
departments may be better suited to distribute this information.
In order to address these concerns, the author's office has
agreed to amend the bill to strike the Secretary of State and
insert the Department of Food and Agriculture and the Department
of Public Health as the entities providing the food donation
exemption excerpts.
Additionally, the bill requires distribution of food liability
exemption by mail. Since this requirement will create expense
and potentially paper waste, the author's office has agreed to
amend the bill to require website posting of the food liability
exemption information with publications disseminated by mail
when possible.
Additionally, the author has agreed to amend the bill to include
tax deduction information for food donation, which may create
more appeal to business owners if tax deduction information was
included with the list of code exemption sections.
Suggested amendments:
On page 2, line 3 strike line 3 beginning with "A" through
line 11 and insert:
The California Department of Food and Agriculture and the
California Department of Public Health shall make
information available on their website, and when possible,
disseminate the information via publications, on food
donation liability protections as specified in Section
1714.25 of the Civil Code, Chapter 5 (commencing with
Section 58501) of Part 1 of Division 21 of the Food and
Agricultural Code, Sections 114433 and 114434 of the Health
and Safety Code, and the Bill Emerson Good Samaritan Food
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Donation Act (Section 1791 of Title 42 of the United States
Code), and on charitable tax deductions for contributions
of food inventory as specified in Section 170 of Part VI of
Subchapter B of Chapter 1 of Subtitle A of Title 26 of the
Internal Revenue Code.
Support : California Association of Food Banks; Community Action
Partnership Food Bank of San Bernardino County; Emergency Food
Bank of Stockton/San Joaquin; Food Empowerment Project; Food
Finders, Incorporated; Hunger Action Los Angeles
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 35 (Oropeza, 2009) would have required the Governor to direct
a state agency to establish and maintain a clearinghouse
database that would allow a food bank or a nonprofit charitable
organization that would like to receive food to contact a food
facility that has an interest in donating food. This bill was
held in the Senate Appropriations Committee.
SB 1443 (Oropeza, 2008) would have required contracts between
retail food facilities and purchasers to include an option
allowing the purchaser to donate leftover food; would have
limited liability to retail food facilities from leftover food
injuries; would have authorized retail food facilities to
determine whether leftover food was fit for human consumption;
would have defined leftover food as food purchased and prepared
pursuant to a written contract; and would have revised the
definitions of non-profit charitable organizations and food
banks to reflect similar code provisions. This bill died on
the Assembly floor.
SB 144 (Runner, Ch. 23, Stats. 2006) repealed and reenacted the
California Uniform Retail Food Facilities Law as the California
Retail Food Code and provided, inter alia, the Department of
Health Services with additional enforcement powers and duties to
enhance the health and sanitation guidelines for retail food
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facilities.
SB 2427 (Russell, Ch. 735, Stats. 1988) limited civil liability
of food facilities for injuries resulting from the consumption
of donated food.
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