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Waste Not
Food Donation Improvement Act Brings Measured Change, Opportunity to Reduce US Food Waste

Updated federal guidelines that reduce donor liability could begin to change the conversation around what is acceptable to consumers, especially as much-needed food begins to make its way to those who need it most.

In a bipartisan bill that flew largely under the radar shortly before the holidays, President Biden signed an amendment to the 1996 Emerson Act — which initially provided certain protections for large entities that donated food to organizations working towards solving food insecurity.

The amendment — entitled the Food Donation Improvement Act (FDIA) — modifies the Emerson Act by calling on the US Department of Agriculture (USDA) to provide clarity and updated guidelines around food donation, ultimately helping to reduce the legal liability of donating unsafe food to an organization such as a food bank. It also specifically expands protections for large entities looking to donate food.

In short, the bill would offer some clarity for an entity such as a food distributor — which often has large quantities of excess food that may be past a “best by” date but is still safe for consumption. There’s also untold potential to make a small dent in the largesse of food waste in the US, which is handily one of the top contributors to the country’s greenhouse gas emissions.

“It helps with the moral conundrum of wasting food and works to solve an environmental problem. It’s a win-win on a number of different levels,” Food Tank co-founder and president Danielle Nierenberg told Sustainable Brands®.

As a leading food-policy advocate, she’s excited not only about the potential at the top end of the food-donation system — which includes large nonprofits such as Feeding America — but for smaller food banks and food-donation services to get more of what they need to serve those who need it most.

Further, the FDIA was a rare showing of bipartisan Congressional support, highlighting food security as a pertinent topic.

More challenges ahead

Greg Silverman, CEO and Executive Director of New York's Westside Campaign Against Hunger, says he is cautiously optimistic about the FDIA. His organization feeds 75,000 New Yorkers annually — distributing more than five million pounds of food, two million of which is fresh produce.

“There are two takes,” he says. “First, it’s great to level the playing field to allow more groups and people to give food where they have it available. Those groups don’t have to go through big bureaucracies, and people can give directly to front-line providers. However, how much food is rescued is not the same as how much is distributed. We’re still throwing food away.”

He says that communication, clarity and marketing around the new guidelines will be key to actually getting more people and entities feeling comfortable about giving. Ultimately, clearer communication about the reduced liability and forthcoming USDA standards will help guide the most important food donations — perishable and other fresh items — to the right sources as quickly as possible. Customers relaying this information to restaurants and food suppliers will help, too.

“Since the pandemic began, our numbers have gone up; but in-kind food donations have not gone up as fast as the need,” Silverman says. “Faster access to fresher product is important.”

Regina Anderson, executive director at Food Recovery Network, shares Silverman’s concerns.

“Across the food system, it’s not going to be linear,” she says.

She often works with big events recovering leftover food; and she notes it will take time to convince convention center managers, event managers and similar leaders to understand and adapt to these increased protections.

“The beauty of this is that the structural responsibility of this lives at the federal level — and we can use that to educate each other,” she adds. “It’s an addition to the system to make it easier for folks.”

Solving the next set of problems

Silverman and Anderson both pointed to an increase in the national minimum wage and an increase in Supplemental Nutrition Assistance Program (SNAP) benefits as real drivers towards food security.

“This is how people get food, federal benefits and (put away for) retirement,” Anderson says.

Silverman adds that while the FDIA is an important policy step, bigger policy around evolving SNAP would move the needle even further.

The idea of liability and food donation also brings up the conversation about food-expiration labeling. “Use by” and “best by” dates are one of the key drivers of food waste in most US households, and most of these labels come from an outdated food marketing system. Frankly, most food is safe beyond these labeled dates, as long as consumers follow some common-sense guidelines — a host of major European retailers have recently opted to ditch best-by dates to help eliminate this confusion.

Updated guidelines stemming from the FDIA could begin to move the conversation forward about what is acceptable to consumers, especially as much-needed food begins to make its way to those who need it most. Simply updating the rules to decrease liability could stem a significant amount of safe food from heading to landfill.

“From an environmental standpoint, the FDIA is fabulous,” Silverman says. “But we need to think about policy shifts.”