Best Management Practices for Food Donation
Steps for Establishing a Food Donation Process
In order to have a successful food donation program, RecyclingWorks recommends starting with considering these steps:
1. Identify Food to Donate with Local Partners
As long as food safety standards are followed to maintain quality, food can be donated by a wide variety of establishments including restaurants, grocery and convenience stores, colleges and universities, K–12 schools, hospitals, corporate cafeterias, caterers, event venues, farms, farmers markets, sports arenas, food manufacturers, and trucking distribution centers. Research and connect with food rescue organizations, food banks or apps in your area that accept food donations. Ask what types and quantities of food they accept (non-perishable, perishable, or prepared) and how you can work with them. Look at items that are destined for your food scrap stream more closely and see if there is excess food that would have been served if not for the end of service or the event. Some of that food can likely be considered for donation.
For more information regarding what foods can be donated, click here.
2. Store food according to local health regulations.
Establish clear guidelines for identifying which surplus foods are safe and eligible for donation, ensuring compliance with food safety standards throughout the process. Surplus unserved food from events, meal service, etc. can be safely donated. Refer to our Prepared Food: Guidelines for Food Donation document for more information.
3. Coordinate with Food Rescue Organizations
Initiate conversations with your partner organizations to understand their procedures for pick-up and transportation. Clarify whether you are looking for pick up on a scheduled basis or on-call services.
4. Determine Packaging, Storage, and Labeling Requirements
Work with the food rescue organization to ensure donated food is packaged, stored, and labeled in a way that maintains food safety and meets all regulatory requirements. See Conference for Food Protection’s Comprehensive Guidance for Food Recovery Programs (Section: Food Safety Procedures) for additional information.
5. Plan Transportation Logistics
Discuss how donated food will be transported, including the time, location, and frequency of pick-ups, expected donation items and volumes. Coordinate these logistics with your food rescue partner. Be sure to exchange contact information in case of unintended changes. For more information on how to transport donated food, check out this guide by the Conference for Food Protection.
Building a Donation Program
Food donations are an important strategy for feeding people and providing access to safe, healthy food. When setting up a food donation program it is important to establish procedures that protect the safety of donated foods.
Examples of Best Management Practices include:
For additional resources on how to start a donation program click here.
Food Donation Laws and Liability Protection
Extensive legal research does not turn up a single legal case related to food donation liability according to Harvard Law School Food Law and Policy Clinic. There are several acts pertaining to food donation at the federal and state level. The Bill Emerson Good Samaritan Food Donation Act (42 U.S.C. § 1791) (Emerson Act) encourages food donations by providing liability protections for businesses that donate ‘apparently wholesome’ food in ‘good faith’ to nonprofit organizations. 42 U.S.C. § 1758(l) explicitly states that schools participating in the national lunch program that donate excess food receive liability protection under the Bill Emerson Good Samaritan Food Donation Act. To see responses to frequently asked questions regarding the Bill Emerson Act, click here.
In January of 2023, the Food Donation Improvement Act (FDIA) was signed into federal law. The FDIA works to further combat food insecurity and wasted food by extending the Emerson Act’s protections to donations that are offered to recipients at a reduced price. The FDIA also protects certain donations by food businesses that are given directly to individuals experiencing food insecurity. Considering the FDIA, the Harvard Food Law and Policy Clinic updated its legal fact sheet on the federal liability protections for food donation (also available in Spanish) which clearly outlines the protections in place and who they apply
Massachusetts provides additional protections for food donations under Mass. Gen. Laws Ch. 94 § 328. Including food that is past date, so long as that food is handled in accordance with State food safety regulations. For more information about Liability Protection see the Harvard Food Law and Policy Clinic fact sheet and the United States Legal Guide: Food Donation Law And Policy.
Tax Incentives
The Harvard Food Law and Policy Clinic prepared a Massachusetts fact sheet regarding tax incentives for food donation. Massachusetts does not have a state-level policy on tax incentives for food donation so businesses may use the federal tax incentives.
Based on the Federal Enhanced Tax Deduction for Food Donation, A Legal Guide, published by the Harvard Food Law and Policy Clinic, a donor meeting the qualifying requirements can calculate the following tax deductions:
| C-Corps | Non C-Corps |
| “The enhanced tax deduction allows eligible businesses to deduct the lesser of (a) twice the basis value of the donated food or (b) the basis value of the donated food plus one-half of the food’s expected profit margin (i.e., the profit margin the donor would expect to capture if the food were sold at its fair market value).” The enhanced tax deduction can be up to 15% of the annual taxable income. 1. Basis Value x 2 Or 2. Basis Value + (Expected profit margin/2) | Non C-corps can use the general deduction of their basis. If the store does not account for inventory and is not required to capitalize indirect costs, they can deduct 25% of the fair market value or retail price of the item up to 30% of taxable income. |
Please consult your tax attorney for advice in your specific situation.
For additional details and examples of how to calculate potential tax deductions, refer to our Throwing Away Food & Money resource.
Date Labeling
The Harvard Food Law and Policy Clinic has prepared a document specifically about food date labeling in Massachusetts. Additional information regarding Massachusetts specific regulations on date labeling can be found on this ReFED webpage.
In accordance with Massachusetts law, perishable and semi-perishable foods must bear a date label, and food sold or donated past that date label must be safe for human consumption, segregated from other foods, and clearly marked as being past date.
Ingredient and allergen labeling
Foods must comply with state and federal labeling requirements in order to be donated. For packaged or prepared foods that may contain allergens, a warning label should be put on the package stating that the food may contain allergens and that people who may have an allergic reaction should not consume it. The Comprehensive Guidance for Food Recovery Programs provides a template for donated food labeling on Page 49 which includes a generic allergen warning.
What foods can be donated?
Most categories of food can be donated. The Emerson Act provides protection from liability for the donation of food that is ‘apparently wholesome’ without visible quality issues. When donating food, it is important to remember that the donation is for human consumption and needs to be handled accordingly. If food looks or smells bad – divert it for composting or anaerobic digestion. See the graphic above as a sample grocery store guidance on which perishable foods should be donated.
All donated food should be protected to prevent food contamination by storage in packages, covered containers, or wrappings.
For detailed information, see the Conference for Food Protection’s Comprehensive Guidelines for Food Recovery Programs. For more guidance on what foods can be donated, check out our Food Donation Giving Guide. If you have any questions about food safety, contact your local health department.
Finding Partner Food Rescue Organizations
There are many organizations in Massachusetts that accept and distribute food for donation. It is important to build contact list of organizations in your area or apps that can accept your surplus food. Knowledge of who can take which food items is important in case of an unexpected surplus of food. You can use the RecyclingWorks Find-a-Recycler tool to find nearby organizations that accept surplus food for donation. Additionally, the Food Rescue Locator is a national resource for locating food rescue organizations, built and maintained by Sustainable America, with support and guidance from the Food Rescue Alliance, Environmental Protection Agency and the Harvard Law School Food Law and Policy Clinic. Remember that in order to receive liability protections, the food must be donated directly to those in need or to a nonprofit organization which distributes to food insecure individuals.
Building Relationships with Partner Food Rescue Organizations
Donating food can have a positive impact on many people, from your employees to the broader community. Building relationships with your partner organizations is important to the success of your food donation programs.
Frequent communication and even site visits with partner organizations can foster positive relationships and build trust. To build a trust-based relationship it is important to have a written agreement with partner organizations that covers what food will be donated, how that food will be handled and stored, and how frequently that food will be transported.
This Food Donation Agreement F ormcan be used as a template to help cover all aspects of the donation relationship.
Food Transportation
Different types of food have different transportation needs. Canned and shelf-stable foods have different transportation needs than Time/Temperature Control for Safety foods. Speak with your local health department and food rescue partner to ensure that food is being transported appropriately.
Keep transportation logs to ensure that food is arriving at the donation location in the same condition it left your facility. This form is an example of a transportation log that can be used to ensure that food is transported safely and appropriately. For more information on transporting food for donation, see pages 28-30 of the Comprehensive Guidelines for Food Recovery Programs.
Additional Resources
There are many resources and organizations available to find further information and assistance with setting up a food donation program. Below is a list of additional resources and organizations. If you have any questions about setting up Food Donation programs, call RecyclingWorks at 1-888-254-5525 or email us at info@RecyclingWorksMA.com
Boards of Health
Documents and Guidance
Steps for Establishing a Food Donation Process
In order to have a successful food donation program, RecyclingWorks recommends starting with considering these steps:
1. Identify Food to Donate with Local Partners
As long as food safety standards are followed to maintain quality, food can be donated by a wide variety of establishments including restaurants, grocery and convenience stores, colleges and universities, K–12 schools, hospitals, corporate cafeterias, caterers, event venues, farms, farmers markets, sports arenas, food manufacturers, and trucking distribution centers. Research and connect with food rescue organizations, food banks or apps in your area that accept food donations. Ask what types and quantities of food they accept (non-perishable, perishable, or prepared) and how you can work with them. Look at items that are destined for your food scrap stream more closely and see if there is excess food that would have been served if not for the end of service or the event. Some of that food can likely be considered for donation.
For more information regarding what foods can be donated, click here.
2. Store food according to local health regulations.
Establish clear guidelines for identifying which surplus foods are safe and eligible for donation, ensuring compliance with food safety standards throughout the process. Surplus unserved food from events, meal service, etc. can be safely donated. Refer to our Prepared Food: Guidelines for Food Donation document for more information.
3. Coordinate with Food Rescue Organizations
Initiate conversations with your partner organizations to understand their procedures for pick-up and transportation. Clarify whether you are looking for pick up on a scheduled basis or on-call services.
4. Determine Packaging, Storage, and Labeling Requirements
Work with the food rescue organization to ensure donated food is packaged, stored, and labeled in a way that maintains food safety and meets all regulatory requirements. See Conference for Food Protection’s Comprehensive Guidance for Food Recovery Programs (Section: Food Safety Procedures) for additional information.
5. Plan Transportation Logistics
Discuss how donated food will be transported, including the time, location, and frequency of pick-ups, expected donation items and volumes. Coordinate these logistics with your food rescue partner. Be sure to exchange contact information in case of unintended changes. For more information on how to transport donated food, check out this guide by the Conference for Food Protection.
Building a Donation Program
Food donations are an important strategy for feeding people and providing access to safe, healthy food. When setting up a food donation program it is important to establish procedures that protect the safety of donated foods.
Examples of Best Management Practices include:
For additional resources on how to start a donation program click here.
Food Donation Laws and Liability Protection
Extensive legal research does not turn up a single legal case related to food donation liability according to Harvard Law School Food Law and Policy Clinic. There are several acts pertaining to food donation at the federal and state level. The Bill Emerson Good Samaritan Food Donation Act (42 U.S.C. § 1791) (Emerson Act) encourages food donations by providing liability protections for businesses that donate ‘apparently wholesome’ food in ‘good faith’ to nonprofit organizations. 42 U.S.C. § 1758(l) explicitly states that schools participating in the national lunch program that donate excess food receive liability protection under the Bill Emerson Good Samaritan Food Donation Act. To see responses to frequently asked questions regarding the Bill Emerson Act, click here.
In January of 2023, the Food Donation Improvement Act (FDIA) was signed into federal law. The FDIA works to further combat food insecurity and wasted food by extending the Emerson Act’s protections to donations that are offered to recipients at a reduced price. The FDIA also protects certain donations by food businesses that are given directly to individuals experiencing food insecurity. Considering the FDIA, the Harvard Food Law and Policy Clinic updated its legal fact sheet on the federal liability protections for food donation (also available in Spanish) which clearly outlines the protections in place and who they apply
Massachusetts provides additional protections for food donations under Mass. Gen. Laws Ch. 94 § 328. Including food that is past date, so long as that food is handled in accordance with State food safety regulations. For more information about Liability Protection see the Harvard Food Law and Policy Clinic fact sheet and the United States Legal Guide: Food Donation Law And Policy.
Tax Incentives
The Harvard Food Law and Policy Clinic prepared a Massachusetts fact sheet regarding tax incentives for food donation. Massachusetts does not have a state-level policy on tax incentives for food donation so businesses may use the federal tax incentives.
Based on the Federal Enhanced Tax Deduction for Food Donation, A Legal Guide, published by the Harvard Food Law and Policy Clinic, a donor meeting the qualifying requirements can calculate the following tax deductions:
| C-Corps | Non C-Corps |
| “The enhanced tax deduction allows eligible businesses to deduct the lesser of (a) twice the basis value of the donated food or (b) the basis value of the donated food plus one-half of the food’s expected profit margin (i.e., the profit margin the donor would expect to capture if the food were sold at its fair market value).” The enhanced tax deduction can be up to 15% of the annual taxable income. 1. Basis Value x 2 Or 2. Basis Value + (Expected profit margin/2) | Non C-corps can use the general deduction of their basis. If the store does not account for inventory and is not required to capitalize indirect costs, they can deduct 25% of the fair market value or retail price of the item up to 30% of taxable income. |
Please consult your tax attorney for advice in your specific situation.
For additional details and examples of how to calculate potential tax deductions, refer to our Throwing Away Food & Money resource.
Date Labeling
The Harvard Food Law and Policy Clinic has prepared a document specifically about food date labeling in Massachusetts. Additional information regarding Massachusetts specific regulations on date labeling can be found on this ReFED webpage.
In accordance with Massachusetts law, perishable and semi-perishable foods must bear a date label, and food sold or donated past that date label must be safe for human consumption, segregated from other foods, and clearly marked as being past date.
Ingredient and allergen labeling
Foods must comply with state and federal labeling requirements in order to be donated. For packaged or prepared foods that may contain allergens, a warning label should be put on the package stating that the food may contain allergens and that people who may have an allergic reaction should not consume it. The Comprehensive Guidance for Food Recovery Programs provides a template for donated food labeling on Page 49 which includes a generic allergen warning.
What foods can be donated?
Most categories of food can be donated. The Emerson Act provides protection from liability for the donation of food that is ‘apparently wholesome’ without visible quality issues. When donating food, it is important to remember that the donation is for human consumption and needs to be handled accordingly. If food looks or smells bad – divert it for composting or anaerobic digestion. See the graphic above as a sample grocery store guidance on which perishable foods should be donated.
All donated food should be protected to prevent food contamination by storage in packages, covered containers, or wrappings.
For detailed information, see the Conference for Food Protection’s Comprehensive Guidelines for Food Recovery Programs. For more guidance on what foods can be donated, check out our Food Donation Giving Guide. If you have any questions about food safety, contact your local health department.
Finding Partner Food Rescue Organizations
There are many organizations in Massachusetts that accept and distribute food for donation. It is important to build contact list of organizations in your area or apps that can accept your surplus food. Knowledge of who can take which food items is important in case of an unexpected surplus of food. You can use the RecyclingWorks Find-a-Recycler tool to find nearby organizations that accept surplus food for donation. Additionally, the Food Rescue Locator is a national resource for locating food rescue organizations, built and maintained by Sustainable America, with support and guidance from the Food Rescue Alliance, Environmental Protection Agency and the Harvard Law School Food Law and Policy Clinic. Remember that in order to receive liability protections, the food must be donated directly to those in need or to a nonprofit organization which distributes to food insecure individuals.
Building Relationships with Partner Food Rescue Organizations
Donating food can have a positive impact on many people, from your employees to the broader community. Building relationships with your partner organizations is important to the success of your food donation programs.
Frequent communication and even site visits with partner organizations can foster positive relationships and build trust. To build a trust-based relationship it is important to have a written agreement with partner organizations that covers what food will be donated, how that food will be handled and stored, and how frequently that food will be transported.
This Food Donation Agreement F ormcan be used as a template to help cover all aspects of the donation relationship.
Food Transportation
Different types of food have different transportation needs. Canned and shelf-stable foods have different transportation needs than Time/Temperature Control for Safety foods. Speak with your local health department and food rescue partner to ensure that food is being transported appropriately.
Keep transportation logs to ensure that food is arriving at the donation location in the same condition it left your facility. This form is an example of a transportation log that can be used to ensure that food is transported safely and appropriately. For more information on transporting food for donation, see pages 28-30 of the Comprehensive Guidelines for Food Recovery Programs.
Additional Resources
There are many resources and organizations available to find further information and assistance with setting up a food donation program. Below is a list of additional resources and organizations. If you have any questions about setting up Food Donation programs, call RecyclingWorks at 1-888-254-5525 or email us at info@RecyclingWorksMA.com
Boards of Health
Documents and Guidance
Disclaimer
The information provided here is for general informational purposes only and is not intended to replace or supersede guidance, recommendations, or regulations issued by your local health department, corporate policy or contractual agreements. Always consult with your local health department for the most accurate and up-to-date information relevant to your business.