" ! SENATE 110th Congress 

2nd Session 

REPORT

110–338 

Calendar No. 748 

FEDERAL FOOD DONATION ACT OF 2008 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 2420 

TO ENCOURAGE THE DONATION OF EXCESS FOOD 

TO NONPROFIT ORGANIZATIONS THAT PROVIDE 

ASSISTANCE TO FOOD-INSECURE PEOPLE IN THE 

UNITED STATES IN CONTRACTS ENTERED INTO 

BY EXECUTIVE AGENCIES FOR THE PROVISION, 

SERVICE, OR SALE OF FOOD 

MAY 22, 2008.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

BARACK OBAMA, Illinois 

CLAIRE McCASKILL, Missouri 

JON TESTER, Montana 

SUSAN M. COLLINS, Maine 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

PETE V. DOMENICI, New Mexico 

JOHN WARNER, Virginia 

JOHN E. SUNUNU, New Hampshire 

MICHAEL L. ALEXANDER, Staff Director 

KEVIN J. LANDY, Chief Counsel 

TROY H. CRIBB, Counsel 

NORA K. ADKINS, GAO DETAILEE

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

RICHARD A. BEUTEL, Minority Senior Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 


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69–010 

Calendar No. 748 

110th Congress SENATE REPORT " ! 2nd Session 110–338 

FEDERAL FOOD DONATION ACT OF 2008 

MAY 22, 2008.—Ordered to be printed 

Mr. LIEBERMAN, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany S. 2420] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 2420) to encourage the donation 

of excess food to nonprofit organizations that provide assistance to 

food-insecure people in the United States in contracts entered into 

by executive agencies for the provision, service, or sale of food, having considered the same, reports favorably thereon with an amendment and recommends that the bill do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background and Need for the Legislation ................................................... 2 

III. Legislative History ......................................................................................... 3 

IV. Section-by-Section Analysis .......................................................................... 3 

V. Evaluation of Regulatory Impact .................................................................. 5 

VI. Congressional Budget Office Cost Estimate ................................................ 5 

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 5 

I. PURPOSE AND SUMMARY

The purpose of S. 2420 is to encourage federal agencies and their 

contractors to donate excess food to nonprofit organizations serving 

the needy. The bill requires federal contracts above $25,000 for the 

provision of food, or for the lease or rental of federal property to 

a private entity for events at which food is provided, to include a 

clause that encourages—but does not require—the donation of excess food to nonprofit organizations. 


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1 42 U.S.C. 1791(b). 

2 United States Department of Agriculture, Waste Not, Want Not, October, 2001. Can be found 

at http://www.epa.gov/epaoswer/non-hw/reduce/wastlnot.pdf. 3 United States Department of Agriculture, Household Food Security in the United States, 

2005. Can be found at http://www.ers.usda.gov/publications/err29/err29.pdf. 4 Id. 

5 Id. 

6 City Harvest Inc., About Us. Can be found at http://www.cityharvest.org/ 

home.aspx?catid=0&pg=1. 7 Rock and Wrap it Up!. Can be found at http://www.rockandwrapitup.org/index/. 8The United States Conference of Mayors, Hunger and Homelessness Survey, at 4–6. Can be 

found at http://usmayors.org/HHSurvey2007/hhsurvey07.pdf. 9 CRS Report, Food Price Inflation: Causes and Impacts, April 10, 2008. Can be found at 

http://www.congress.gov/erp/rs/pdf/RS22859.pdf. 

As reported, the bill would also extend to the government and 

the contractor, when donating food, the same civil or criminal liability protection provided to donors of food under the Bill Emerson 

Good Samaritan Food Donation Act of 1996.1

II. BACKGROUND AND NEED FOR THE LEGISLATION

Research from the United States Department of Agriculture 

(USDA) has found that more than one-quarter of all the food produced for human consumption in America is currently discarded.2

At the same time this waste is occurring, 11 percent (12.6 million 

households) of U.S. households are food insecure.3 These households, at some time during the year, had difficulty providing 

enough food for all their members due to a lack of resources.4

About a third of these food-insecure households (4.4 million, or 3.9 

percent of all U.S. households) were food insecure to the extent 

that one or more household members were hungry, at least some 

time during the year, because they could not afford enough food.5

The Committee believes that one way to address hunger is to encourage federal agencies and their contractors to donate excess 

foods to nonprofit organizations serving the needy. 

Nonprofits in the business of food rescue serve millions of people. 

City Harvest, in New York City, for example, picks up excess food 

from places such as restaurants, groceries, manufacturers, wholesalers, and greenmarkets, and delivers the food to soup kitchens, 

food pantries, day care and senior citizen centers, homeless shelters 

and other places that serve those in need. In fiscal year 2008, City 

Harvest rescued approximately 20 million pounds of excess, nutritious food.6 Rock and Wrap it Up!, a national food rescue organization headquartered in New York and supporter of this legislation, 

collects leftover food from professional sporting events and concerts. Last year they collected approximately 350,000 pounds of 

food for a total of one million meals.7 These organizations, though, 

find it difficult to keep up with demand. 

According to a new report released by the U.S. Conference of 

Mayors on December 17, 2007, request for emergency food assistance from food pantries, emergency kitchens and home-delivered 

meal programs increased an average of 10 percent over the last 

year.8 At the same time food costs are increasing. A recent Congressional Research report found U.S. food prices rose 4% in 2007 

and are expected to increase by 3.5% to 4.5% in 2008.9 America’s 

food banks are straining to meet their needs with the increase in 

both food requests and food costs. For example, a December 8, 2007 

Washington Post article reported that the Capitol Area Food Bank, 

the emergency food system for Washington D.C., had only 230,000 


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10The Washington Post, Cupboards are Bare at Food Banks, page A01. Can be found at 

http://www.capitalareafoodbank.org/documents/documents/cupboardsarebare.pdf. 11 American’s Second Harvest, Nation Responds, But Shortage Still Critical At Food Banks 

Around The Country, December 17, 2007. Can be found at http://www.secondharvest.org/ 

newslroom/2007lpresslreleases/121707.html. 

pounds of food on its shelves, down from 570,000 pounds at this 

time last year.10 Overall this year, the Capitol Area Food Bank is 

projecting totals to fall roughly 6 percent below last year’s total of 

19.5 million pounds. America’s Second Harvest, the country’s leading hunger-relief charity, issued an urgent call for support on 

Thanksgiving Day 2007, projecting an immediate food shortage of 

15 million pounds—the equivalent of more than 400 truckloads or 

11.7 million meals—by the end of the year.11

Nationally the value of USDA commodities provided by the 

Emergency Food Assistance Program has dropped from $242 million in Fiscal Year 2003 to only $58 million in the last Fiscal Year. 

With the increase in demand—as high as 20 percent among food 

banks and food rescue organizations—and the national shortage of 

donated food, the Committee believes it is appropriate to encourage 

federal agencies and their contractors to donate excess food to nonprofit organizations serving the needy. 

III. LEGISLATIVE HISTORY

S. 2420 was introduced by Senator Charles E. Schumer and was 

referred to the Committee on Homeland Security and Governmental Affairs on December 6, 2007. S. 2420 was cosponsored by 

Senator Lugar, Senator Menendez, Senator Collins, Senator 

Voinovich, Senator Crapo, and Senator Durbin. Its companion bill 

H.R. 4220 was introduced on November 15, 2007, and referred to 

the Committee on Oversight and Government Reform. The Committee on Oversight and Government Reform held a markup to 

consider H.R. 4220 on December 12, 2007, and ordered the bill to 

be reported by voice vote as amended. On December 17, 2007, the 

House passed by voice vote H.R. 4220 under suspension of the 

rules. On December 18, 2007, H.R. 4220 was received in the Senate. It was read twice and referred to the Committee on Homeland 

Security and Governmental Affairs on January 22, 2008. 

S. 2420 was reported favorably by the Committee by voice vote 

on April 10, 2008 as amended by the Lieberman-Collins substitute. 

The substitute amendment: clarifies that both the government and 

contractor, when donating food, will be covered by the liability protections extended to donors of food under the Bill Emerson Good 

Samaritan Food Donation Act of 1996; specifies that the contract 

clause required by the bill applies only to contracts to be performed 

within the United States; and strikes a section of the bill creating 

a food security coordinator at the United States Department of Agriculture. Members present for the vote on the bill as amended 

were Senators Lieberman, Levin, Akaka, Carper, Landrieu, 

McCaskill, Tester, Collins, Voinovich, and Sununu. 

IV. SECTION-BY-SECTION ANALYSIS

Section 1. Short Title 

Section 1 designates the name of the act as the ‘‘Federal Food 

Donation Act of 2008.’’


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Section 2. Purpose 

Section 2 describes the purpose of the act as encouraging executive agencies and contractors of executive agencies, to the maximum extent practicable and safe, to donate excess, apparently 

wholesome food to feed food-insecure people in the United States. 

Section 3. Definitions 

Section 3 defines the following terms for purposes of the act: ‘‘apparently wholesome food,’’ ‘‘excess,’’ ‘‘food-insecure,’’ and ‘‘nonprofit 

organization.’’

‘‘Apparently wholesome food’’ has the meaning given to the term 

in section 2(b) of the Bill Emerson Good Samaritan Food Donation 

Act (42 U.S.C. 1791(b)), which defines apparently wholesome food 

as 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-Insecure’’ is defined as inconsistent access to sufficient, 

safe, and nutritious food. 

Section 4. Promoting Federal Food Donation 

Subsection (a) requires that the Federal Acquisition Regulation, 

as issued in accordance with section 25 of the Federal Procurement 

Policy Act (41 U.S.C. 421), be revised to provide that all contracts 

above $25,000 for the provision, services, or sale of food in the 

United States, or for the lease or rental of Federal property to a 

private entity for events at which food is provided in the United 

States, shall include a clause that encourages the donation of excess, apparently wholesome food to nonprofit organizations that 

provide assistance to food-insecure people. 

Subsection (b) requires, for cases in which a contractor enters 

into a contract with an executive agency under which apparently 

wholesome food is donated to food-insecure people in the United 

States, that the head of the executive agency shall not assume responsibility for the costs and logistics of collecting, transporting, 

maintaining the safety of, or distributing excess, apparently wholesome food to food-insecure people in the United States. 

Subsection (c) specifies that an executive agency (including an 

agency that enters into a contract with a contractor) and any contractor making donations pursuant to this Act shall be exempt 

from civil and criminal liability to the extent provided under the 

Bill Emerson Good Samaritan Food Donation Act (42 U.S.C. 1791) 

(‘‘Bill Emerson Act’’). The Bill Emerson Act already exempts persons from civil or criminal liability arising from the nature, age, 

packaging, or condition of apparently wholesome food or an apparently fit grocery product that the person donates in good faith to 

a nonprofit organization for ultimate distribution to needy individuals. The effect of subsection (c) is to make clear that both the government and the contractor would benefit from this liability protection. (The Bill Emerson Act also separately provides the same liability protection for nonprofit organizations receiving such donations in good faith for distribution to needy individuals.) 


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V. EVALUATION OF REGULATORY IMPACT

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of this bill. The Congressional Budget Office 

states that the bill contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandate Reform Act and 

would not affect the budgets of state, local, and tribal governments. 

The enactment of this legislation will not have significant regulatory impact. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

APRIL 11, 2008. 

Hon. JOSEPH I. LIEBERMAN, Chairman, Committee on Homeland Security and Governmental Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 2420, the Federal Food Donation Act of 2008. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

Peter R. Orszag. 

Enclosure. 

S. 2420—Federal Food Donation Act of 2008 

CBO estimates that enacting S. 2420 would have no significant 

impact on the federal budget, and would not affect direct spending 

or revenues. S. 2420 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act 

and would not affect the budgets of state, local, and tribal governments. 

S. 2420 would amend Federal Acquisition Regulations to require 

a clause in food services contracts of over $25,000 to encourage donation of any excess food. Under the legislation, federal agencies 

would not be responsible for the costs of transporting or collecting 

any donated food. In addition, agencies and contractors would be 

protected from any civil or criminal liabilities arising from such donations. 

On December 17, 2007, CBO provided a cost estimate for H.R. 

4220, the Federal Food Donation Act of 2007, as ordered reported 

by the House Committee on Oversight and Government Reform on 

December 12, 2007. The two pieces of legislation are similar, and 

the CBO cost estimates are identical. 

The CBO staff contact for this estimate is Matthew Pickford. 

This estimate was approved by Peter H. Fontaine, Assistant Director for Budget Analysis. 

VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

No changes to existing law are made by S. 2420, as reported. 

Æ 


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