Texas Bar Journal • July/August 2025

Food and the Law

Safeguarding Generosity

Legal protections for food donors and the realities of hunger relief.

Written by Meredith J. Duncan

a fruit basket

A little more than three years ago, I received an invitation to become more meaningfully involved with the Houston Food Bank. I now serve on its board of directors, and the revelation I have experienced about what I once thought was a hunger problem in this country has been nothing short of profound.1 I now appreciate that the issue I thought was hunger is more accurately termed “food insecurity.” Food insecurity is a complex, prevalent crisis infecting our country and, unfortunately, thriving in Texas. As Texas lawyers representing clients who may ask us about the legal consequences of supporting food assistance programs, it is important that we be prepared to provide them with legal guidance and information, particularly relating to making food donations to programs tackling food insecurity.

FOOD INSECURITY GENERALLY
Food insecurity affects more than 47 million people nationwide, which means that one in seven American households experiences food insecurity.2 It can touch people from all walks of life and is not merely about hunger.3 Food insecurity is about people having inadequate resources to acquire quality and healthy food sources to meet their basic needs and fuel a healthy lifestyle.4 Hunger is a result of prolonged food insecurity, leading to illness, discomfort, and weakness. Food insecurity touches 100% of our nation’s counties.5 Having inadequate resources forces people to make difficult decisions among essentials, such as food, housing, medicine, clothing, and other basic necessities. After choosing among essentials with insufficient resources, the mental strain from not having enough money to purchase adequate food may be followed by a need to purchase lower quality food and then to make the food they can buy last longer. Eventually, this is followed by a decrease in food consumption that first impacts the adults and then the children in their households.6

Food insecurity may be a long-term or temporary condition, and multiple factors or a combination of factors may result, such as a lack of affordable or adequate housing options, health issues, a missed paycheck, a lost or low- income job, a medical emergency, high unemployment rates, or similar events or conditions.

FOOD INSECURITY IN TEXAS AND THE NEED FOR ORGANIZATIONS LIKE THE HOUSTON FOOD BANK
The news about food insecurity in Texas is even more grim. Texas is one of the leaders in the nation in food insecurity.7 One in six households in Texas is food insecure, which amounts to more than 5.1 million Texans facing food insecurity.8 Nearly one in every four children in Texas is food insecure.9

More than 50 million people turn to food assistance programs nationwide—like food banks, food pantries, and community organizations—to access affordable, nutritious food for themselves and their families.10 The Houston Food Bank is one such program distributing food and other essentials to those in need in southeast Texas by networking with over 1,600 community partners. Its goal is to help families achieve long-term stability, including nutrition education and health management.

Donating to food banks is a powerful way to fight hunger and support vulnerable communities, especially during times of economic hardship or crisis. However, while the intention behind food donations is often generous and well-meaning, donors must also be aware of the potential legal implications surrounding food safety and liability. Understanding food donation laws can protect donors and ensure that their contributions truly help, without unintended legal risks.

FEDERAL REGULATORY REQUIREMENTS FOR FOOD DONATIONS
The Bill Emerson Good Samaritan Food Donation Act of 1996 provides limited protection to those who donate food, provided the food and donation fit within the definitions of and comply with the requirements of the statute.11 For the donor, the statute states that a person or gleaner who donates food or grocery products in good faith to a nonprofit for free or at a reduced price is protected from civil or criminal liability, as long as the items are apparently safe and fit for use.

The limited protection from civil or criminal liability rests on compliance with the various definitions of sections (b)(1)-(12) of the statute. First, only wholesome food12 can be donated—that is, food that meets all federal, state, and local quality and labeling standards. If the donated food meets those quality and labeling standards, the food can be donated, despite not being “readily marketable due to appearance, age, freshness, grade, surplus, or other conditions.”13 This type of donation will exempt the donor from potential civil or criminal liability, provided the donor also donates the wholesome food in good faith to a nonprofit organization14 for “ultimate” distribution to needy individuals at zero cost or at a “good Samaritan” reduced price. A good Samaritan reduced price will be an amount not more than the cost of handling, administering, harvesting, processing, packaging, transporting, and distributing the qualifying food donation.15

If you are donating nonfood grocery products (e.g., disposable paper or plastic products, household cleaning products, or laundry detergent) to a nonprofit organization, you are held to the same standard of donation as the wholesome food, insofar as the grocery product must also meet the quality and labeling standards required by law, even if the products are not readily marketable due to appearance, age, freshness, grade, surplus, or other conditions. Further, the donation being made to a nonprofit organization must be for the ultimate distribution to needy individuals at zero cost or at a “good Samaritan” reduced price.

A noteworthy provision of the Bill Emerson Good Samaritan Food Donation Act permits a form of “partial compliance” if some of the donated food or grocery items do not meet all quality and labeling standards as noted as long as the person or gleaner informs the nonprofit of the distressed or defective condition and the nonprofit organization agrees to recondition the donated food16 or grocery products to comply with all the quality and labeling standards prior to distribution.17

STATE REGULATORY REQUIREMENTS FOR FOOD DONATIONS
Chapter 76 of the Texas Civil Practice & Remedies Code governs food donors in Texas. This statute is referred to as the Good Faith Donor Act and provides, much like its federal counterpart, that a person or gleaner is not subject to civil or criminal liability arising from the condition of apparently wholesome food that the person or gleaner donates to a nonprofit organization for distribution to the needy, if the food is apparently wholesome at the time of donation. However, this protection does not apply if harm results from the donor’s gross negligence, recklessness, or intentional misconduct.18

Texas’ food donor law provides limited protection for the donation of food, where the federal version includes non-food donations. The Texas donor law also contains a lower threshold for permitting a civil or criminal claim against a person, gleaner, or nonprofit if they acted with recklessness, gross negligence, or engaged in intentional misconduct.19 Additionally, the Bill Emerson Good Samaritan Food Donation Act does partially preempt state liability laws that provide less protection. This preemption is implied and operates as a floor for liability protection of covered activities.20

CONCLUSION
Donors making contributions to food banks—one way to assist with combating food insecurity—must be made aware of the legal consequences of supporting food assistance programs. Texas lawyers who have clients that may ask for guidance on this topic must be prepared to provide them with information regarding food donation laws so that their generosity doesn’t put them at risk.

Notes

  1. It is my great pleasure to serve on the board of directors of the Houston Food Bank. It has been illuminating to me personally and professionally. Many years before serving on the Houston Food Bank, I came to know several students who I knew at the time were struggling with food insecurity throughout law school. At least one of those students was also homeless. I am sure there were others I did not know were struggling with food insecurity, and there will be others yet to come. Because of these students, I provide food whenever I meet with students outside of regularly scheduled classes. So, I always try to have food available during office hours or at group meetings with students outside of class because now I know that food insecurity is prevalent.

  2. Hunger and Poverty in America, Food Research & Action Center, https://frac.org/ hunger-poverty-america (2023).

  3. See Food Insecurity, Healthy People 2030, Office of Disease Prevention and Health Promotion, https://odphp.health.gov/healthypeople/priority-areas/social-
    determinants-health/literature-summaries/food-insecurity#cit2 (“Food insecurity does not necessarily cause hunger, but hunger is a possible outcome of food insecurity.”).

  4. Hunger and Food Insecurity, Feeding America, https://www.feedingamerica.org/ hunger-in-america/food-insecurity.

  5. Hunger in America, Hunger Facts, Feeding America, https://www.feedingamerica.org/ hunger-in-america.

  6. Michael D. Smith and Birgit Meade, Who Are the World’s Food Insecure? Identifying the Risk Factors of Food Insecurity Around the World, U.S. Dep’t of Agriculture (June 3, 2019), https://www.ers.usda.gov/amber-waves/2019/june/who-are-the-world-s-food- insecure-identifying-the-risk-factors-of-food-insecurity-around-the-world.

  7. Hunger in Texas, Feeding America, https://www.feedingtexas.org/learn-about-hunger/ hunger-in-texas/.

  8. Id.

  9. Id.

  10. More than 50 million people turned to hunger relief programs in 2023, Feeding America, https://www.feedingamerica.org/about-us/press-room/charitable-food-assistance- 2023#:~:text=Feeding%20America%20estimates%20that%20more,thresholds%20 to%20qualify%20for%20SNAP.

  11. See 42 U.S.C. §1791.

  12. See 42 U.S.C. §1791(b)(4). “Food” refers to any raw, cooked, processed, or prepared edible substance, ice beverage, or ingredient used or intended for use in whole or in part for human consumption.

  13. See 42 U.S.C. §1791(b)(1).

  14. See 42 U.S.C. §1791(b)(10). A nonprofit organization refers to an incorporated or unincorporated entity that is (1) operating for religious, charitable, or educational purposes; and (2) does not provide net earnings to, or operate in any other manner that inures to the benefit of, any officer, employee, or shareholder of the entity.

  15. See 42 U.S.C. §1791(b)(6).

  16. See 42 U.S.C. §1791(e). This agreement to recondition requires that the nonprofit be knowledgeable of the standards to properly recondition the donated food or grocery items.

  17. Id.

  18. Tex. Civ. Prac. & Rem. Code §76.004.

  19. Id. §76.004(a) – (c).

  20. The USDA requested and received an opinion from the U.S. Attorney General’s Office concerning the Bill Emerson Act and preemption. The opinion confirmed that the Bill Emerson Act partially preempted state liability laws. See Preemptive Effect of the Bill Emerson Good Samaritan Food Donation Act, 21 Op. O.L.C. 55, 1997 WL 1188104.

Headshot meredith duncanMEREDITH J. DUNCAN is the Alumnae College Professor of Law and Assistant Dean of Opportunities and Engagement at the University of Houston Law Center. Her areas of expertise include legal ethics, professional responsibility, criminal law, and tort law. Duncan is a member of the American Law Institute and the secretary of the board of directors of the Houston Food Bank.