Much of the food that ends up in landfills could have been used to feed people. Food rescue and food recovery divert food to feed people. The following federal and state laws are meant to protect food donors concerned about liability associated with food donation. In addition to liability protection, Virginia provides some tax incentives for food donors. The information included here represents a high-level overview of relevant laws and regulations and should not be used as legal guidance. Consult relevant laws and regulations before engaging in food donation or composting activities.

The Bill Emerson Good Samaritan Food Donation Act of 1996 is a federal law that provides liability protection to food donors. The law establishes federal protection from civil and criminal liability for persons involved in the donation and distribution of food and grocery products to needy individuals when certain criteria are met. The donation must be made in good faith (i.e., the food must be apparently wholesome) and must be donated to a non-profit organization for distribution to needy individuals. The Act also provides protection against civil and criminal liability to the receiving nonprofit organization. 

The Food Donation Improvement Act was signed into law in 2023, extending the protections provided under the Bill Emerson Good Samaritan Act. It builds on the Bill Emerson Good Samaritan Act by clarifying and broadening liability protections for retailers to donate surplus food. Liability protections were expanded to include donations of an apparently fit grocery product or apparently wholesome food: (1) for which the recipient is charged a good Samaritan reduced price that is no greater than the cost of handling, administering, and distributing the food or product; or (2) that is donated directly to a needy individual by a retail grocer, wholesaler, agricultural producer, restaurant, caterer, school food authority, or institution of higher education. 

In this law the term “apparently wholesome food” references 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. 

Sections 3.2-5144 and 35.1-14.2 of the Code of Virginia provide both civil and criminal protections for eligible donors that donate apparently wholesome food to a food organization (a non-profit food bank that maintains a food storage facility certified by Virginia Department of Agriculture and Consumer Services and, where required by law, the Virginia Department of Health). Eligible donors include farmers, processors, distributors, wholesalers, food service establishments, restaurants, or retailers of food. Protections apply to food that is past-date, regardless of compliance with regulations on the quality or labeling of food, so long as parties are informed. The exemption does not apply to gross negligence or intentional acts. Food service establishment and restaurants must comply with the Virginia Department of Health’s regulations for donations. Refer to the Code for additional details. 

The 2023 General Assembly renewed the wholesome food donation tax credit for taxable years 2023-2027. This provision allows for farmers in the Commonwealth who donate wholesome food (food that meets all quality standards imposed by federal, state and local laws or regulations that is readily marketable) to a nonprofit food bank to claim a tax credit of 50% of the fair market value of the donation, not to exceed $10,000 per person for all such donations during a year.