The Bill Emerson Good Samaritan Food Donation Act: A Guide for Food Rescues
“What happens if someone gets sick?” is the question a food rescue hears from almost every new grocery, restaurant or caterer it approaches. The federal answer is the Bill Emerson Good Samaritan Food Donation Act, codified at 42 U.S.C. §1791, as amended by Public Law 117-362 (S. 5329, signed January 5, 2023; widely referred to as the Food Donation Improvement Act of 2022 — the enacted text itself carries no short title). This guide walks through what the statute actually says, using its own words where it matters, and what a food rescue can sensibly keep on file. It is a plain-language summary, not legal advice.
Who is protected
Subsection (c) gives three protections, each against “civil or criminal liability arising from the nature, age, packaging, or condition” of the donated food or grocery product:
- Donors and gleaners (§1791(c)(1)): a person or gleaner who donates apparently wholesome food or an apparently fit grocery product in good faith to a nonprofit organization for ultimate distribution to needy individuals at zero cost or at a good Samaritan reduced price. “Person” is defined broadly and names, among others, a retail grocer, wholesaler, hotel, motel, manufacturer, restaurant, caterer, farmer, and nonprofit food distributor or hospital, and includes the officers, directors and similar individuals responsible for governing an organization.
- Nonprofit organizations (§1791(c)(2)): a nonprofit that received the food or product as a donation in good faith from a person or gleaner, for ultimate distribution to needy individuals at zero cost or at a good Samaritan reduced price. The statute defines a nonprofit organization as an incorporated or unincorporated entity operating for religious, charitable or educational purposes that does not provide net earnings to, or operate for the benefit of, any officer, employee or shareholder.
- Qualified direct donors (§1791(c)(3), added in 2023): a retail grocer, wholesaler, agricultural producer, agricultural processor, agricultural distributor, restaurant, caterer, school food authority, or institution of higher education that donates in good faith directly to a needy individual at zero cost — without a nonprofit in between.
Separately, §1791(d) protects a person who allows gleaners or representatives of a nonprofit to collect or glean donations on their property from liability for injury or death of the gleaner or representative, again except for gross negligence or intentional misconduct.
What food and products qualify
- Apparently wholesome food: food that “meets all quality and labeling standards imposed by Federal, State, and local laws and regulations even though the food may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions.” “Food” covers raw, cooked, processed or prepared edible substances, ice, beverages and ingredients.
- Apparently fit grocery products: non-food grocery products — the statute lists disposable paper or plastic products, household cleaning products, laundry detergent, cleaning products and miscellaneous household items — meeting the same standards test.
Past-date food: the definition expressly allows for food that is less marketable because of “age” or “freshness”, but only if it still meets all applicable federal, state and local quality and labeling standards. So whether a past-date item is covered turns on the rules where you operate — see can a food pantry give out food past the date?
Distressed or defective food (§1791(e)): if donated food does not meet all quality and labeling standards, the donor is still protected if the receiving nonprofit (1) is informed by the donor of the distressed or defective condition, (2) agrees to recondition it to meet all the standards before distribution, and (3) is knowledgeable of the standards to properly recondition it.
The 2023 change: zero cost or a “good Samaritan reduced price”
Before Public Law 117-362, protections for donors and nonprofits referred only to distribution to needy individuals. The amendment added “at zero cost or at a good Samaritan reduced price” to §1791(c)(1) and (c)(2) and defined the reduced price (§1791(b)(6)) as a price “not greater than the cost of handling, administering, harvesting, processing, packaging, transporting, and distributing” the food or product. Two things follow:
- A program that charges recipients a small amount can stay within the protection, as long as the price does not exceed those costs. If you charge, it is worth being able to show how the price was set.
- The new direct donation protection for qualified direct donors is narrower: it covers donations to a needy individual at zero cost only.
Passing food from one nonprofit to another
Food rescue often moves food through more than one organization — a rescue to a pantry, a food bank to an agency. The statute’s definition of “donate” (§1791(b)(3)) means to give without requiring anything of monetary value from the recipient, but it expressly includes a nonprofit giving to another nonprofit even if the donor organization charged a nominal fee, provided the ultimate recipient or user is not required to give anything of monetary value or is charged a good Samaritan reduced price. In other words, the protection follows the food to the end user as long as the person who finally receives it pays nothing, or no more than the reduced price.
The exception: gross negligence and intentional misconduct
Under §1791(c)(4), none of the three protections applies to an injury to or death of an ultimate user or recipient that results from an act or omission of the donor, gleaner or nonprofit “constituting gross negligence or intentional misconduct.” The statute defines both:
- Gross negligence: “voluntary and conscious conduct (including a failure to act) by a person who, at the time of the conduct, knew that the conduct was likely to be harmful to the health or well-being of another person.”
- Intentional misconduct: “conduct by a person with knowledge (at the time of the conduct) that the conduct is harmful to the health or well-being of another person.”
Good faith is a condition of every protection, too.
What the Act does not do
- It does not replace food safety rules. Subsection (f): “Nothing in this section shall be construed to supercede State or local health regulations.” Your health department’s rules on temperature, labeling, prepared food and storage still apply, and the definition of apparently wholesome food itself depends on meeting federal, state and local standards.
- It does not create liability. Subsection (f) also says the section “shall not be construed to create any liability.”
- It is limited to liability arising from the food. The protections are worded around liability “arising from the nature, age, packaging, or condition” of the food or product. The statute does not speak to other risks of running a food rescue, such as vehicle accidents on a pickup, volunteer injuries (other than the gleaning-on-property rule in subsection (d)) or contract disputes. That is what insurance and agreements are for.
- It is federal law. Your state may have its own food donation law, and the CalRecycle model agreement for California, for example, references both the federal Bill Emerson Act and the California Good Samaritan law (see edible food recovery agreements). Ask a lawyer how the laws interact where you operate.
- The conditions matter. Coverage depends on good faith, food that is apparently wholesome or apparently fit, and the destination: ultimate distribution to needy individuals at zero cost or a good Samaritan reduced price (or, for direct donations, at zero cost).
Records a food rescue can keep
The statute does not require any particular records. But if a donor, funder, insurer or health inspector ever asks what happened to a load, the answer is in your records. Practical things to keep, as a matter of ordinary operating practice:
- Who donated, and when — the donor’s name and contact details and the date of each pickup or drop-off.
- What was received — category, description and weight, recorded the same way every time.
- Condition on receipt — package condition, notes, and the temperature of refrigerated or frozen food at pickup or delivery (see food pantry temperature logs).
- Anything the donor told you about distressed or defective product, and what you did about it — the subject of §1791(e).
- What you rejected or discarded, and why (see tracking food waste).
- Where it went — which partner agency or distribution, and whether recipients paid nothing or a reduced price, with how any price or fee was set.
- Lot codes for packaged product, so a recall resolves to who received it (see what to do in a food recall).
- Your written agreements with regular donors, where you have them.
Business donors who give food inventory often ask a second question — about their tax deduction. The federal enhanced deduction for food inventory borrows this Act’s definition of “apparently wholesome food”; see the food donation tax deduction for businesses.
Where PantryPOS fits
PantryPOS is food pantry, food bank and food rescue records software. It does not give legal advice, decide whether a donation is protected, or plan routes. What it keeps:
- Donor records with name, address, phone and email.
- Receiving by donor and weight: each pickup logged on the Receive screen carries the donor, source, category, pounds, delivery temperature, package condition, condition notes and a lot record, with lot codes and expiration dates.
- A receiving CSV export for any month or date range, one row per lot, and a report of pounds received by category and source.
- Waste and discards logged with a reason, and cold-chain temperature logs for refrigerators and freezers.
- Lot tracking through to distribution, so a recall resolves to who received the product.
- Year-end donor acknowledgment letters listing each gift’s date, a description and approximate pounds, with no dollar value.
More on the records side of food rescue: food rescue software; in California, SB 1383 food recovery recordkeeping and the free SB 1383 food recovery log. PantryPOS is $39 a month for the first location after a 30-day free trial, with no card to start.
Sources (checked October 10, 2026)
- 42 U.S.C. §1791, Bill Emerson Good Samaritan Food Donation Act (Cornell LII copy of the U.S. Code, including the 2023 amendment notes). The official text is also at uscode.house.gov.
- Public Law 117-362, 136 Stat. 6295 (S. 5329; passed the Senate December 20 and the House December 21, 2022; approved January 5, 2023), congress.gov.
- For the related tax deduction, 26 U.S.C. §170(e)(3)(C)(vi), Cornell LII.