Food donation guide for restaurants, grocers and caterers

David Roberts
October 22, 2026
10:43 pm
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David Roberts

Program Director

Last reviewed: October 22, 2026. Federal food donation law changed in January 2023, and this page reflects that update.

Yes, your business can donate surplus food. The federal Bill Emerson Good Samaritan Food Donation Act protects donors who give food in good faith from civil and criminal liability. The protection ends only at gross negligence or intentional misconduct, which means knowingly handing over food you know is likely to hurt someone.

So an honest mistake is covered. Below is what qualifies, how to set up a donation this week, and the legal detail if you want to read the fine print yourself.

What you can donate

Usually fine:

Produce that's bruised, misshapen, wilted around the edges or too ripe to sell, as long as it's still good to eat
Packaged food past its "best by" or "sell by" date (those are quality dates set by the manufacturer)
Cans with small dents, as long as the dent isn't on a seam and the can isn't bulging or leaking
Overruns, discontinued products, seasonal packaging and short-coded items
Prepared food that was held at safe temperatures and never went out to a customer
Mislabeled items, if you tell the nonprofit about the problem and it agrees to fix the label before distribution

Don't donate:

Anything that's been served to a customer
Hot or cold food that sat out of temperature control and you can't say for how long
Infant formula past its "use by" date
Recalled products
Cans that are swollen, leaking or deeply dented at the seam
Food you wouldn't feed your own staff

That last one is the best test. If your sous chef would eat it, it's probably donatable.

How to set up a food donation in 6 steps

1. Call a local food recovery group before you have the surplus

Don't wait until you're staring at 40 pounds of romaine at closing. Call first and ask:

What do you take? (Produce only, prepared food, packaged goods, dairy, meat)
Is there a minimum or maximum volume?
What days and times do you pick up?
Do you use refrigerated vehicles?
How fast does the food reach people? (You want a number of hours.)
Do your recipients pay anything? (This matters for taxes. See the FAQ.)

A good partner gives you specific answers to all of them.

2. Decide what goes in the donation bin

Write a short list of what's in and what's out, based on the section above, and post it in the walk-in. Pick one person per shift to make the call on borderline items. That keeps borderline calls to about 30 seconds.

3. Store it like it's going back on the line

Set aside 1 shelf in the walk-in, labeled "donation." Then:

Keep cold food at 41°F or below.
Cool hot food before it goes in the donation bin: from 135°F to 70°F within 2 hours, then down to 41°F within 4 more hours (the standard in California's Retail Food Code and the FDA Food Code).
Pack in clean, food-grade containers with lids.
Label each container with what's in it, the date it was made or received, and any major allergens.

Your health inspector already expects this for your own food. Donated food gets the same treatment.

4. Schedule a recurring pickup

Set regular days so no one has to remember to call. When the driver shows up, your staff points to the shelf and signs the receipt. That's the whole job on your end, and it should take a few minutes, even mid-shift.

5. Ask how long the food will sit

Every hour between your back door and someone's plate is an hour for food to spoil. Some programs warehouse donations for days or weeks. Others move food within a day.

Here in Santa Barbara County, Veggie Rescue picks up surplus fresh produce in refrigerated trucks and delivers it free to local nonprofit partners within 24 hours. We don't warehouse it. The shorter the window, the less chance the food turns before it's eaten, and the less chance anyone points back at you.

6. Get a receipt every time

Ask for a written receipt with the date, a description of the food, the weight and the nonprofit's name and tax ID number. You'll need it for the tax deduction, and California businesses covered by SB 1383 need it for their records (more on that below).

The legal detail

What the Bill Emerson Act says

The law is 42 U.S.C. § 1791. It's short, and worth reading once.

It covers people, businesses, nonprofits, gleaners and their officers. It protects donations of "apparently wholesome food," which the law defines as food that meets federal, state and local quality and labeling standards "even though the food may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or other conditions."

Ugly, old, surplus, the wrong size: that's most of what ends up in a restaurant dumpster, and all of it counts.

Where protection stops

The Act doesn't protect donations made with gross negligence or intentional misconduct. The law defines gross negligence as "voluntary and conscious conduct (including a failure to act) by a person who, at the time of the conduct, knew that the conduct was likely to be harmful to the health or well-being of another person."

That's a high bar. It requires knowing the conduct was likely to cause harm.

Covered (ordinary negligence): a cooler runs a few degrees warm overnight and no one catches it.
Not covered (gross negligence): you know the chicken sat in a hot van all afternoon and you donate it anyway.

What happens with labeling problems

Food that doesn't meet labeling standards (a missing allergen statement, a wrong weight, a misprinted package) can still be covered. Under subsection (e), the donor is protected if the nonprofit:

is told about the problem by the donor,
agrees to fix it before distribution, and
knows the standards well enough to fix it properly.

So tell your partner. A quick "these are labeled wrong" is what keeps you covered.

What changed in 2023

The Food Donation Improvement Act was signed on January 5, 2023. It made 2 big changes.

Qualified direct donors can now give food directly to people in need. Before 2023, protection only applied when food went through a nonprofit. Now these businesses can hand food straight to a person in need, at no cost, and stay protected:

retail grocers
wholesalers
agricultural producers, processors and distributors (farms included)
restaurants and caterers
school food authorities and colleges

If your business isn't on that list (a hotel, hospital or event venue, for example), route donations through a nonprofit to stay under federal protection.

Nonprofits can charge a "good Samaritan reduced price." That's a price no higher than the cost of handling, packaging, transporting and distributing the food. A nonprofit grocery or a low-cost market can now sell donated food at cost and the donor still keeps liability protection.

It doesn't replace your health code

The Act says plainly that it doesn't override state or local health rules. Your county health department's rules still apply to how you store and handle food before it leaves your kitchen.

California rules

California's Good Samaritan law

California's own law, Civil Code § 1714.25 (expanded by AB 1219 in 2017), adds a few things:

Food facilities can donate directly to end recipients.
Nonperishable food past its shelf-life date is protected if it's still fit to eat.
Perishable food past its date is protected if the donor makes a good faith evaluation that it's still wholesome.
Like the federal law, it excludes gross negligence and intentional misconduct.

SB 1383: many California businesses are required to donate

California's SB 1383 requires larger food businesses to donate the maximum amount of edible food they'd otherwise throw away. It's a mandate, and it covers 2 tiers.

Tier 1 (required since January 1, 2022):

supermarkets with $2 million or more in gross annual sales
grocery stores of 10,000 square feet or more
food distributors and wholesale food vendors
food service providers

Tier 2 (required since January 1, 2024):

restaurants with 250 or more seats, or 5,000 square feet or more
hotels with an on-site food facility and 200 or more rooms
health facilities with an on-site food facility and 100 or more beds
large venues and large events averaging more than 2,000 people a day
state agency cafeterias with 250 or more seats, or 5,000 square feet or more
local education agencies with an on-site food facility

If you're covered, you need a written agreement with a food recovery organization, and you need to keep records: who picks up, what types of food, how often and how many pounds a month. Your city or county inspects these records and can issue penalties.

If you're on these lists and don't have a written agreement yet, that's your first call this week.

FAQ

Can I donate food past its "best by" date?

Yes, in most cases. "Best by," "sell by" and "use by" dates on most foods are set by manufacturers for quality. The federal Act covers food that isn't marketable because of age, and California's law explicitly protects past-date food that's still fit to eat. The main exception is infant formula, which carries a federally required "use by" date. Don't donate it past that date.

If someone gets sick, can my business be sued?

Anyone can file a lawsuit. But under federal law, a donor acting in good faith can't be held liable unless the harm came from gross negligence or intentional misconduct. If you follow normal food safety practice and tell your partner about any problems, you're well inside the protection.

Do I get a tax deduction for donating food?

Probably. Under IRC § 170(e)(3), businesses that donate food inventory can take an enhanced deduction: the lesser of (a) your cost plus half of the profit you'd have made selling it at fair market value, or (b) twice your cost. The deduction is capped at 15% of taxable income for C corporations, or 15% of net income from the donating businesses for other taxpayers.

To qualify, the food has to go to a qualified charity that uses it to care for the ill, the needy or infants, and the charity can't sell it. You'll also need a written statement from the charity. If your partner charges recipients a reduced price, ask your tax advisor whether the enhanced deduction still applies.

Can I give food directly to someone who's hungry?

If you're a qualified direct donor (grocers, restaurants, caterers, farms and the others listed above), yes. Federal law covers direct donations at no cost since 2023. California's law also lets food facilities donate directly to end recipients. Everyone else should donate through a nonprofit.

Does California add requirements the federal law doesn't?

Yes. Larger California food businesses must donate under SB 1383 and keep records. And your county health code still governs how food is stored and handled before it's donated.

My restaurant only has a little extra. Is it worth it?

Ask. Some groups set minimums, some don't, and some will add you to a route they already drive. A recurring 20-pound pickup adds up over a year.

Get your surplus picked up

If you're in Santa Barbara County and have surplus fresh produce, contact Veggie RescueThe point of using dummy text for your paragraph is that it has a more-or-less normal distribution of letters. making it look like readable English.

This page is general information. For legal or tax decisions about your business, talk to your attorney or tax advisor.

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