Preemptive Effect of the Bill Emerson Good Samaritan Food

Donation Act

The Bill Emerson G ood Samaritan Food Donation Act preem pts state “ good Samaritan” statutes that 

provide less protection from civil and crim inal liability arising from food donated in good faith 

for distribution to the needy than the Act provides.

March 10, 1997

M e m o r a n d u m O p in io n fo r t h e G e n e r a l C o u n s e l

D e p a r t m e n t o f A g r ic u l t u r e

You have requested our views on the question whether the Bill Emerson Good 

Samaritan Food Donation Act (the “ Act” ), Pub. L. No. 104-210, 110 Stat. 3011 

(1996) codified as amended at 42 U.S.C. § 1791 (Supp. II 1996), preempts state 

statutes that provide less protection from civil and criminal liability arising from 

food donated in good faith for distribution to the needy. We believe that Congress 

intended to establish a minimum level of immunity for those engaged in food 

donation and distribution. Accordingly, we believe that Congress intended to preempt state “ good Samaritan” statutes that provide less liability protection than 

the Act.

I.

In order to “ encourage the donation of food and grocery products to nonprofit 

organizations for distribution to needy individuals,” the Bill Emerson Good 

Samaritan Food Donation Act precludes civil and criminal liability arising from 

food donated in good faith, except in cases of gross negligence or intentional 

misconduct. 42 U.S.C. §1791. It amended and converted to affirmative law the 

Model Good Samaritan Food Donation Act (the “ Model Act” ), 42 U.S.C. 

§§12671-12673 (1994), which had been enacted in 1990 to provide states with 

model language for revising their existing good Samaritan laws.1 The current Act 

provides:

(1) LIABILITY OF PERSON OR GLEANER. — A person or 

gleaner shall not be subject to civil or criminal liability arising from

1 Every state and the District of Columbia prior lo 1990 had enacted some form of statutory protection from 

liability for food donation and distribution. See H R Rep. No. 104—661, at 2-3 (1996) (citing “ Summary of Good 

Samaritan Food Donation Statutes” prepared by Winthrop, Stimson, Putnam and Roberts in 1992 for “ Share Our 

Strength,” a non-profit hunger relief organization). These statutes are exceptions to the common law or statutory 

rule of strict liability for distributing food or any other defective product, the defective aspect of which causes 

injury. Id The statutes vary considerably, however Some provide liability only for gross negligence or intentional 

acts, while others impose liability for negligence. Still others limit liability if the donor reasonably inspects the 

food at the time of donation and has no actual or constructive knowledge of any defective condition Only one 

state has adopted the language m the Model Act. Id.

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the nature, age, packaging, or condition of apparently wholesome 

food or an apparently fit grocery product that the person or gleaner 

donates in good faith to a nonprofit organization for ultimate distribution to needy individuals.

(2) LIABILITY OF NONPROFIT ORGANIZATION. — A nonprofit organization shall not be subject to civil or criminal liability 

arising from the nature, age, packaging, or condition of apparently 

wholesome food or an apparently fit grocery product that the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals.

(3) EXCEPTION.— Paragraphs (1) and (2) shall not apply to an 

injury to or death of an ultimate user or recipient of the food or 

grocery product that results from an act or omission of the person, 

gleaner, or nonprofit organization, as applicable, constituting gross 

negligence or intentional misconduct.

42 U.S.C. § 1791(c).2

II.

As the Supreme Court has observed, preemption is fundamentally a question 

of congressional intent. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) 

(“ [t]he purpose of Congress is the ultimate touchstone in every pre-emption 

case” ) (quoting Retail Clerks Int’l A ss’n v. Schermerhorn, 375 U.S. 96, 103 

(1963)). In assessing congressional intent, the Court has “ long presumed that Congress does not cavalierly pre-empt state-law causes of action.” Id. In cases where 

“ Congress has ‘legislated . . . in a field which the States have traditionally occupied’ ” the Court “ ‘start[s] with the assumption that the historic police powers 

of the States were not to be superseded by the Federal Act unless that was the 

clear and manifest purpose of Congress.’ ” Id. (quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947)). It is with this admonition in mind that we 

examine the preemptive effect of the Act.

The Supreme Court has identified three ways in which a federal law may preempt state law.3 First, Congress may preempt state law explicitly in the text of 

its statute. See English v. General Elec. Co., 496 U.S. 72, 78 (1990).4 Second,

2The Act defines a “ gleaner” as ‘‘a person who harvests for free distribution to the needy, or for donation 

to a nonprofit organization for ultimate distribution to the needy, an agricultural crop that has been donated by 

the owner " 42 U.S.C § 1791(b)(5)

3See generally Freighthner Corp. v. Myrick, 514 U S 280, 287 (1995), Cipollone v. Liggett Group, Inc, 505 

U S 504,516-17 (1992)

4 For example, to expressly preempt state regulation on a particular subject. Congress may provide that ” [n]o 

State or political subdivision of a State may establish or continue in effect any requirement — (1) which is

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Preemptive Effect o f the Bill Emerson Good Samaritan Food Donation Act

Congress may preempt state laws implicitly by demonstrating an intent to occupy 

the field exclusively with federal regulation. See Rice, 331 U.S. at 230. Finally, 

even where Congress permits concurrent state regulation in a field, such regulation 

is preempted to the extent it actually conflicts with federal law. The Supreme 

Court has found an actual conflict where “ compliance with both federal and state 

regulations is a physical impossibility for one engaged in interstate commerce,” 

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1962), 

or where state law “ stands as an obstacle to the accomplishment and execution 

of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 

52, 67 (1941).

Although the Act contains no express preemption clause, its purpose is to supersede, at least to a certain extent, state good Samaritan statutes. Thus, the question 

is to what extent it supersedes those statutes. We believe the Act clearly preempts 

state good Samaritan statutes to the extent they provide less liability protection 

than federal law — for example, to the extent they permit liability based on evidence of negligence — because such laws literally would “ stand[] as an obstacle 

to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67. As stated above, the express purpose of the Act 

is to “ encourage the donation of food and grocery products to nonprofit organizations for distribution to needy individuals’ ’ by limiting liability for such activities. 

Unless potential donors and distributors are assured that the Act sets an absolute 

liability ceiling, they will continue to be deterred by the threat of liability under 

state law and will not be encouraged by the Act to donate food. Thus, to have 

any effect at all, the Act must preempt state statutes that provide less liability 

protection.

The legislative history of the Act confirms this interpretation. As Representative 

Danner explained when introducing the bill in the House,

the current patchwork of State laws has been cited by many potential donors as the principal reason so much food is thrown away 

rather than given to food banks and food pantries for distribution 

to the hungiy. . . .

Simply put, we need a reasonable nationwide law that eliminates 

confusion and forges a stronger alliance between the public and 

private sectors in this Nation. That is exactly what this bill delivers.

different from or in addition to, any requirement applicable under (federal law] . . . and (2) which relates . . 

to any other matter included in a requirement applicable . under [federal law].” 21 US.C. §360k(a) (1994) 

(Federal Food, Drug, and Cosmetic Act, as amended by the Medical Device Amendments), see also 29 USC. 

§ 1144(a) (1994) (provision m ERISA preempting “ any and all State laws insofar as they may now or hereafter 

relate to any employee benefit plan” ). Congress instead may limit the extent to which states may regulate, by providing for example that “ [aj State may adopt or continue in force any law, rule, regulation, order, or standard 

relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering 

the subject matter of such State requirement ” Federal Railroad Safety Act, 45 U.SC §434, repealed by Act of 

July 5, 1994, Pub. L No. 103-272, § 7(b), 108 Stat. 1379

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The [Act] will establish a uniform national law to protect organizations and individuals when they donate food in good faith.

A business should not have to hire a legal team to interpret 

numerous State laws so that it feels comfortable in contributing 

food to the hungry.

142 Cong. Rec. 17,066 (1996).

The remarks of other members o f Congress also demonstrated an intent to preempt those state good Samaritan statutes that conflict with the federal standard. 

See e.g., H.R. Rep. No. 104-661, at 7 (1996) (“ The bill would preempt civil 

and criminal liability laws of state and local governments that deal with the donation of food and grocery products to nonprofit organizations.” ); 142 Cong. Rec. 

21,516 (1996) (statement of Sen. Kennedy) (acknowledging that the Act would 

“ diminish the protections afforded by the tort laws” ). Indeed, Representative 

Conyers expressed concern about the intended preemptive effect of the Act:

Although I am supportive o f the impetus behind the legislation — 

encouraging private entities to donate food to nonprofit organizations who distribute food to the needy — I question whether preempting traditional State law prerogatives in this area is desirable 

.... [A]ll 50 States have enacted special statutory rights concerning food donations. Not surprisingly, the States have crafted 

a variety of liability rules — ranging from those who subject all 

negligent parties to liability, to those who limit liability only to 

grossly negligent or intentional acts.

Unfortunately, with the adoption of this bill, the House will be 

seeking to impose a one-size-fits-all [sic] legal standard for food 

donors ....

142 Cong. Rec. 17,067 (1996).

President Clinton also apparently believed that the Act would preempt conflicting state laws. In his signing statement the President observed:

In working with various private sector donors and food banks . . . 

it has come to light that liability concerns are often an impediment 

to food recovery and donation efforts. Although many States have 

enacted their own “ Good Samaritan” laws to support food 

recovery and donation efforts, many businesses have advised that 

these varying State statutes hinder food donations. This legislation 

will end the confusion regarding liability for food recovery and

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Preemptive Effect o f the Bill Emerson Good Samaritan Food Donation Act

donation operations through uniform definitions in one national 

law.

2 Pub. Papers of William J. Clinton 1737, 1737-38 (1996).

We believe that the legislative history of the Act, together with its express purpose and the context in which it was enacted, indicate that Congress intended 

to establish a “ uniform national law” that displaces conflicting state good Samaritan statutes — i.e., those that provide less liability protection than federal law. 

There is an argument that Congress intended to go even farther, preempting not 

only less protective state statutes but all state good Samaritan laws. Although we 

acknowledge that some parts of the legislative history could be read to support 

this argument, we find insufficient evidence that Congress intended to preempt 

the field. “ Field preemption” does not seem necessary to achieve the congressional goals underlying the Act. The Act should have the desired effect of encouraging food donation as long as it assures potential donors that they will not incur 

liability for conduct above a certain national level of culpability. The existence 

of state standards that provide even greater protection from liability should not 

deter food donation; indeed, they may further promote it. Furthermore, as noted 

above, the Supreme Court is reluctant to construe preemption broadly in areas 

traditionally regulated by the states.5 For these reasons, we decline to interpret 

the Act to preempt all state good Samaritan statutes. Rather, we construe the Act 

to preempt only those state good Samaritan statutes that furnish less liability 

protection than federal law.

DAWN E. JOHNSEN 

Acting Assistant Attorney General

Office of Legal Counsel

5 See Medtronic, Inc , 518 U S at 485; Rice 331 US. at 230

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