(Last Updated 09/22/2020)
Date labels are the dates stamped on food items and accompanied by phrases such as “sell by,” “use by,” or “best by.” These dates are generally intended to communicate food quality, not food safety. Nevertheless, they exert a powerful influence on consumers and food vendors, who rely on these labels when deciding whether or not to throw food away. Under current federal law, date labels remain almost entirely unregulated, except for use on infant formula. States have filled this void with a variety of inconsistent date labeling regulations that often fail to reflect the distinction between food safety and food quality.
Currently, 41 states and the District of Columbia require at least some foods to have date labels. These state date label regulations vary widely. Some state regulations require the use of labels only on narrow categories of food, while others are much broader. New Hampshire, for example, requires date labels only on cream and pre-wrapped sandwiches. In contrast, Massachusetts requires date labels on all pre-packaged perishable and semi-perishable food products.
Twenty states and the District of Columbia prohibit or restrict sale or donation of food products once the date has passed, even when such foods are still healthy and safe to consume. These state laws also vary widely. Massachusetts and Oregon allow past-date products to be sold but require them to be clearly labeled as past-date and separated from pre-date products. Montana prohibits milk from being sold or “otherwise offered for public consumption” after the required “sell by” date, which must be 12 days after pasteurization in that state.
This patchwork state regulatory system, as well as the wide array of date labels that appear on products, contributes to confusion among consumers and regulators and ultimately results in the significant waste of safe, wholesome food.
California Date Labeling Regulations
Cal. Food & Agric. Code§ 36004 (2013)
from the Law
Cal. Code Regs. tit. III, § 627 (2013).
from the Law
Cal. Health & Safety Code § 114039 (2013).
from the Law
Many potential food donors, including grocers and retailers, cite fear of liability as a primary deterrent to donating food. However, the federal Bill Emerson Good Samaritan Food Donation Act provides a national baseline of civil and criminal liability protection for food donors and recipient nonprofit organizations that receive and distribute food to needy individuals. States cannot make laws that remove or reduce the protection created under the Act, but they are free to enact laws that are the same or even stronger.
All 50 states have state liability protection acts, and several states provide additional liability protection above those offered by the Emerson Act. Examples of state improvements include providing protection even when nonprofit food recovery organizations charge the final recipient; protecting donors that donate directly to the final recipient; reducing unnecessary labeling requirements for liability protection for donated food; and explicitly offering protection when donors donate past-date foods. By going beyond the federal liability protection floor, states encourage food donation and help ensure more food makes it to the tables of those in need.
California Liability Protection Regulations
- Statute Citation
- Cal. Civ.Code § 1714.25
- Type of Protection
- When protection will not apply
- For the original donor, there is no protection for negligence or a willful act; for the ultimate distributor, there is no protection for negligence, recklessness, or intentional misconduct.
- Who it protects
- Donor: Any food facility, nonprofit charitable organization or food bank
Distributor: Nonprofit/charitable organization or food bank
- Standards for Donated Food
- Apparently fit for human consumption. Provides protection regardless of compliance with packaging and labeling laws; food must be fit for human consumption.
- Protections Apply When End Recipient Pays for the Donated Food
- Protections Apply to Direct Donations
Federal Liability Protection
The Bill Emerson Good Samaritan Food Donation Act provides a strong federal baseline of protection for food donors. It covers individuals, businesses, nonprofit organizations, the officers of businesses and nonprofit organizations, and gleaners. A donor must donate in good faith to a nonprofit organization that distributes the donated food to needy populations, and the food must meet all quality and labeling standards imposed by federal, state and local laws and regulations.
Tax incentives make food donation more cost-effective and economically beneficial. At the federal level, there are two tax deductions for food donations: a general deduction and an enhanced deduction. The enhanced deduction provides a significantly higher financial benefit, allowing businesses to deduct a value for donated food that is almost double the general deduction when the donated food meets certain eligibility criteria. These incentives have been extraordinarily successful in motivating food donation.
Additionally, a growing number of states have passed or considered state-level tax incentives in recent years. Currently, nine states (Arizona, California, Colorado, Iowa, Kentucky, Missouri, Oregon, South Carolina, and Virginia) and the District of Columbia offer such tax incentives. These incentives aim to assist certain businesses that do not benefit sufficiently from the federal tax incentive, such as farmers or other businesses with low profit margins. State tax incentives provide those businesses with a more tailored incentive and a benefit that is often easier to understand and utilize than the federal one.
Tax incentives for food donations are structured differently by state; for example, eight states and Washington DC offer tax credits, while Arizona offers a tax deduction. California and South Carolina cover specific costs related to processing or transporting food for donation. Different states also offer incentives for different types of donors, with the bulk targeting farmers.
California TAX INCENTIVES
CAL. REV. & TAX. CODE § 17053.88
- Deduction or Credit
- 10% of inventory cost
- Eligible donors
- Taxpayer responsible for planting, managing, and harvesting crops
- Eligible food
- Fresh produce
- Eligible Recipients
- Food banks located in California
CAL. REV. & TAX. CODE § 17053.12
- Deduction or Credit
- 50% of transportation costs
- Eligible donors
- Taxpayer engaged in the business of processing, distributing, or selling agricultural products
- Eligible food
- Agricultural crops
- Eligible Recipients
Federal Tax Incentives
The federal government provides tax deductions to incentivize businesses to donate food. As of December 2015, all businesses—including C-corporations, S-corporations, limited liability corporations (LLCs), partnerships and sole proprietorships—are eligible for an enhanced tax deduction that exceeds the property’s basis for donated food if they meet certain requirements. If they do not meet the requirements, they can still claim a general tax deduction in the amount of the property’s basis.
For centuries, using food scraps as animal feed was common worldwide. The practice declined rapidly in the 1980s, when several disease outbreaks were linked to unsafe animal feed. In an attempt to prevent the spread of such diseases, federal laws and regulations were enacted to restrict what is often pejoratively referred to as “garbage feeding” to animals. However, using food scraps as animal feed in a safe, resource-efficient way can be environmentally friendly and energy-efficient, providing multiple benefits for both farmers and food waste generators, such as retailers, restaurants, and institutional cafeterias. Interest in the practice of using a wider array of safe, properly-treated food scraps from a range of sources—including unsold retail food and post-consumer food scraps—as animal feed has been growing.
Federal and state governments regulate the feeding of food scraps to animals by setting restrictions, which vary based on the type of animal that may be fed food scraps and the kind of scraps they may be fed. Forty-eight states and Puerto Rico regulate these practices, most often regarding swine. The federal regulations function as a floor, and state regulations go beyond them, in some cases banning the practice of feeding any food scraps to animals. For example, 15 states ban feeding swine food scraps that contain any animal parts or material, and nine of these states even ban the feeding of vegetable waste to swine. Twelve states also have more stringent license and heat-treatment requirements than the federal rules. These states require heat-treating of vegetable-based food scraps (not just animal-derived food scraps) before they are fed to swine.
California Animal Feed Regulations
CAL. FOOD & AGRIC. CODE §§ 32, 10901–90, 34006 (2015)
- Animals covered
- Farm animals; swine
- Definition of "garbage"
- Any waste which consists in whole or in part of any animal waste that results from the handling, preparing, cooking, and consuming of food, including the offal from any animal carcass or from any part of an animal carcass. It does not, however, include such waste from ordinary household operations that is fed directly to swine on the premises. § 10901 (2015).
- No feeding untreated garbage to swine or unpasteurized milk to farm animals. Exception for ndividuals feeding household garbage. §§ 10901–90, 34006 (2015).
- An individual or facility must obtain an annual license from the state before feeding garbage to swine. § 10981 (2015).
- The state may inspect any premises where garbage is fed to swine and may order a facility to cease garbage-feeding operations. § 10922 (2015). The state may inspect records pertaining to garbage-feeding operations. § 10923 (2015). The state may refuse to issue, revoke, or suspend the license of an individual or facility that violates the garbage-feeding rule. § 10987 (2015).
- Treatment requirements
- All garbage must be heated to at least 212 degrees Fahrenheit or boiling point for at least 30 minutes or else treated in some other manner approved by the state. § 10952 (2015).
- Relevant state regulatory body
- California Department of Food and Agriculture (§ 32 (2015)), https://www.cdfa.ca.gov/.
Federal Animal Feed Policy
Under federal law, food scraps can generally be fed to animals, so long as food scraps with animal derived by-products are heat-treated by a licensed facility before being fed to swine; and food scraps containing animal-derived by-products are not fed to ruminants. The federal regulations function as a floor, and most state regulations go beyond them.
Organic Waste Bans & Waste Recycling Laws
In order to push businesses and consumers to reduce food waste, a growing number of states and localities are enacting organic waste bans or waste recycling laws to restrict the amount of food waste an entity can send to the landfill. Five states and several localities have passed either waste bans or waste recycling laws for food waste. Four states—Connecticut, Massachusetts, Rhode Island, and Vermont—structure their laws as organic waste bans, while one state, California, has instituted a waste recycling law requiring commercial generators of organic waste to either compost or anaerobically digest organic waste. Each of these states prohibits certain entities that generate specified amounts of food waste from sending this waste to landfills, subject to exceptions. The municipal laws that exist function similarly to the laws of these states.
However, each state differs regarding the specifics of its waste ban or recycling law. For example, they vary with regard to the types of entities covered under the law, how much organic waste an entity must produce in order to be covered, and whether exceptions exist for entities located far from a facility that accepts food scraps. As of 2020, Vermont’s law will cover anyone, including residents, who generates any amount of food waste. In contrast, other states cover only certain commercial, industrial, and institutional entities. These differences have a significant impact on the reach of these laws, and therefore on the amount of food waste diverted.
California Organic Waste Recycling Laws
Cal. Pub. Res. Code § 42649.81
- Generators Covered
- Any business, meaning a commercial or public entity such as a firm, partnership, corporation, or association organized as a for-profit or non-profit entity. Multifamily residential dwellings are exempted.
- Waste Production
- 2016: 8 cubic yards per week; 2017: 4 cubic yards per week; 2020: 2 cubic yards per week IF statewide organic waste disposal has not been reduced to 50% of the level in 2014.
- Exemptions for distance from organics processing facility
- None (but there are exemptions for rural jurisdictions)
S.F. ENV. CODE §§ 1901–1912 (2016)
- Generators Covered
- Any individual (including a resident, employee or visitor), firm, business concern, association, partnership, corporation, or governmental entity (including the City and County of San Francisco, its boards, departments and commissions).
- Other Requirements
- Property owners, including owners and managers of multifamily housing and commercial entities, are required to subscribe to appropriate collection services and provide proper containers to residents for disposing of compostable materials.
- Waiver from the above requirements if there is inadequate storage space on the property for proper disposal containers.