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Can your operation donate surplus food?

packing food boxes

Question:

You mentioned that restaurants are protected from liability if they donate surplus food. Our manager says we don’t donate excess food due to liability reasons; if someone gets sick, they can sue us. But I know other restaurants donate food. 

– Culinary Student, Philadelphia

Answer:

Last week’s column on policies for letting employees take leftovers home brought attention to what seems to be a widely held misconception that donating food puts restaurants at risk. The answer is “sort of.” If done properly, your employer is protected and has every reason to donate surplus food: to do good, to receive a tax incentive and to reduce food waste.

The federal Bill Emerson Good Samaritan Act protects restaurants that donate food in good faith to nonprofits like food banks, food pantries and soup kitchens. Some states and municipalities have additional protections in place. In order to be compliant, the receiving organization must be a nonprofit and the food must be “apparently wholesome.” That is, if the food is not safe—for example, it was held at improper temperatures or is too old to safely serve to guests—it should be discarded, not donated. In cases of negligence or intentional misconduct, of course, the operation would not be protected.

Even though you may be protected, there are still some best practices to make sure that the good food you are donating gets safely to people who need it:

  • While it is fine to donate food that does not meet your quality standards in terms of appearance or flavor, never donate food that wouldn’t be safe to serve to guests. The adage “When in doubt, throw it out” still applies.
  • Label donated food with appropriate preparation instructions, such as “Heat to a minimum temperature of 165 F,” for example.
  • Transport food at the proper temperature and remind donation recipients to do the same. 

As always, check with your restaurant association and attorney to be sure your practices are compliant. More on the legalities of donating food here

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