BILL ANALYSIS
SB 1269
Page 1
Date of Hearing: June 15, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1269 (Oropeza) - As Amended: May 13, 2010
SENATE VOTE : 23-6
SUBJECT : Food Donation: Immunity from Liability
KEY ISSUE : Should certain state agencies be required to post on
their Internet Web sites information about tax deductions and
liability exemptions relating to food donations, so as to
encourage donations of surPlus food to charitable organizations?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill seeks to make businesses more aware
of their ability to donate food without fear of liability.
Existing state and federal laws provide that a business that
donates edible surplus food to a food bank or charitable
organization is generally immune from liability for harm caused
by the consumption of that food unless the harm is caused by the
negligence, recklessness, or willful acts of the donor. In
addition, federal law provides tax deductions for food
donations. The quite sensible purpose for these immunities and
tax credits is to encourage businesses to donate healthy, edible
food to persons in need rather than have perfectly good food
wasted and needlessly taking up space in a landfill. However,
despite the existence of these immunities and tax credits,
studies suggest that discarded food continues to be the largest
single item in state landfills while other studies show that
about 3 million Californians lack the means to put enough food
on their tables. Laws that encourage food donations help to
address both problems. The author contends, however, that many
businesses and organizations are unaware of these laws and, as
such, remain reluctant to donate due to the fear of possible
liability. This bill seeks to mitigate that problem by
requiring the departments of Food and Agriculture and Public
Health to post information about existing state and federal
immunities and tax deductions on their Internet Web sites. In
addition, the bill would require the departments, when possible,
to disseminate information about immunities and tax deductions
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via existing department publications. The bill would not affect
any existing liability; it would simply require the assigned
state agencies to post and sometimes disseminate information in
order to make potential donors aware of their scope of
liability. This bill passed out of the Senate Judiciary
Committee on a 4-0 vote and passed off the Senate Floor on a
23-6 vote. The bill is supported by several food banks and
charitable organizations. There is no known opposition to the
bill.
SUMMARY : Requires the California Department of Food and
Agriculture and California Department of Public Health to post
on their Internet Web sites, and when possible disseminate
through existing publications, information about state and
federal laws that provide tax deductions and liability
exemptions relating to the donation of food for charitable
purposes.
EXISTING LAW :
1)Provides, under federal law, that neither a person who donates
food to a nonprofit organization, nor a nonprofit organization
that provides the food to needy individuals, shall be civilly
or criminally liable for harms arising from the nature, age,
packaging, or condition of apparently wholesome food or an
apparently fit grocery product unless the harm results from an
act or omission of the person or organization that constitutes
gross negligence or intentional misconduct. (42 USC Section
1791.)
2)Provides, under the federal tax code, tax deductions for
charitable contributions of food inventory, as specified. (26
USC Section 170.)
3)Provides that no food facility that donates any food that is
fit for human consumption at the time it was donated to a
nonprofit charitable organization or a food bank shall be
liable for any damage or injury resulting from the consumption
of the donated food, unless the injury is caused by negligence
or a willful act in the preparation or handling of the food.
(Civil Code Section 1714.25 (a).)
4)Provides that a nonprofit charitable organization or a food
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bank that, in good faith, receives and distributes food
without charge that is fit for human consumption at the time
it was distributed is not liable for harm caused by the
consumption of the food unless the harm is the direct result
of negligence, recklessness, or intentional misconduct of the
organization. (Civil Code Section 1714.25 (b).)
5)Provides that a food facility that donates food to a
charitable organization or food bank shall not be subject to
civil or 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 violation occurring
after the time of the donation. (Health & Safety Code
Sections 114435-114455.)
6)Provides that no person that donates an agricultural product,
and no county or county agency that establishes a surplus food
collection and distribution center, shall be liable for any
injury, including, but not limited to, injury resulting from
the ingesting of such agricultural product, as a result of any
act or omission in connection with donating the agricultural
product. (Food and Agriculture Code Section 58501-58508.)
COMMENTS : This bill seeks to address a seeming paradox:
discarded food is the single biggest item taking up space in our
state's landfills at the same time that about 3 million
Californians go hungry. Although it is impossible to know for
sure, a significant portion of the discarded food is apparently
still fit for human consumption at the time that it is
discarded. In an effort to address this situation, several
existing laws seek to encourage the donation of wholesome and
edible food that would otherwise end up in a landfill. For
example, provisions of the Food and Agriculture Code authorize
counties to set up distribution centers to direct surplus
agricultural products to food banks. The federal tax code
grants tax deductions for food donations. Most notably, for
purposes of this bill, both state and federal law grant limited
immunity from liability to persons and organizations that donate
or distribute food for charitable purposes. Apparently these
immunities were enacted based on the assumption that many
persons who would otherwise donate food are sometimes reluctant
to do so for fear of liability should the food subsequently -
due to someone else's negligence, perhaps - cause an injury to
the ultimate consumer of the food. Several provisions of state
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law, therefore, as well as federal laws like the Bill Emerson
Good Samaritan Food Donation Act, provide immunity for harm
caused by the donated food, unless, of course, the injury is the
result of negligence, recklessness, or willful misconduct. The
exact scope of liability differs as between federal and state
law. For example, the federal immunity statute does not grant
immunity for acts that constitute gross negligence or willful
misconduct, while state law does not grant immunity to acts that
are negligent, reckless, or willful. In addition to these
various immunity provisions, the federal tax code permits tax
deductions of food donations to charitable organizations or food
banks.
This non-controversial bill would not add any new immunity or
create any new tax breaks; rather, this measure would simply
require the California Department of Food and Agriculture and
the California Department of Public Health to post information
about all of the tax advantages and immunities relating to food
donation on their respective Internet Web sites. In addition,
when possible, the bill would require those departments to
disseminate such information through any existing department or
agency publications.
ARGUMENTS IN SUPPORT : According to the author, although state
and federal laws appropriately grant limited immunity and tax
incentives to persons and organizations that donate food for
charitable purposes, many organizations and businesses remain
reluctant to donate edible surplus food out of fear that they
might, through no fault of their own, become liable for any
harms that might result from the consumption of the food. The
author contends that if businesses and organizations were better
informed about existing immunity and tax incentives, that they
would be more likely to make donations.
Recent Related Legislation . SB 35 (Oropeza, 2009-10 session)
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 to contact a
food facility that has an interest in donating food. Held in
Senate Appropriations Committee.
SB 1443 (Oropeza, 2007-08 session) would have required all
contracts entered into between caterers and purchasers to
include language that gives the purchaser the option of
authorizing the caterer to donate leftover food to a food bank
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or charitable organization. Failed on the Assembly Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Food Banks
Community Action Partnership Food Bank of San Bernardino County
Emergency Food Bank of Stockton/San Joaquin
Food Finders
Hunger Action Los Angeles
Los Angeles Regional Food Bank
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334