42 U.S.C. § 1791 — Bill Emerson Good Samaritan Food Dona-

Page 5062 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1790 in the administration of the school breakfast programs authorized by this section. (Pub. L. 89–642, § 20, as added Pub. L. 95–561, title XIV, § 1408(b)(2), Nov. 1, 1978, 92 Stat. 2368; amended Pub. L. 99–500, title III, § 328(b), Oct. 18, 1986, 100 Stat. 1783–362, and Pub. L. 99–591, title III, § 328(b), Oct. 30, 1986, 100 Stat. 3341–365; Pub. L. 99–661, div. D, title II, § 4208(b), Nov. 14, 1986, 100 Stat. 4073.) Editorial Notes CODIFICATION Pub. L. 99–591 is a corrected version of Pub. L. 99–500. AMENDMENTS 1986—Subsec. (d). Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 amended subsec. (d) identically, striking out ‘‘and for payment of the difference between the value of commodities and payments received from the Secretary of Agriculture and (1) the full cost of each breakfast for each student eligible for a free breakfast, and (2) the full cost of each breakfast, less any amounts required by law or regulation to be paid by each stu- dent eligible for a reduced-price breakfast’’ after ‘‘this section’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Oct. 1, 1978, and no provisions to be construed to impair or to prevent the taking of effect of any other Act providing for the transfer of the de- scribed functions to an executive department having responsibility for education, see section 1415 of Pub. L. 95–561, set out as a note under section 921 of Title 20, Education. § 1790. Breastfeeding promotion program (a) In general The Secretary, from amounts received under subsection (d), shall establish a breastfeeding promotion program to promote breastfeeding as the best method of infant nutrition, foster wider public acceptance of breastfeeding in the United States, and assist in the distribution of breastfeeding equipment to breastfeeding women. (b) Conduct of program In carrying out the program described in sub- section (a), the Secretary may— (1) develop or assist others to develop appro- priate educational materials, including public service announcements, promotional publica- tions, and press kits for the purpose of pro- moting breastfeeding; (2) distribute or assist others to distribute such materials to appropriate public and pri- vate individuals and entities; and (3) provide funds to public and private indi- viduals and entities, including physicians, health professional organizations, hospitals, community based health organizations, and employers, for the purpose of assisting such entities in the distribution of breastpumps and similar equipment to breastfeeding women. (c) Cooperative agreements The Secretary is authorized to enter into co- operative agreements with Federal agencies, State and local governments, and other entities to carry out the program described in subsection (a). (d) Gifts, bequests, and devises (1) In general The Secretary is authorized to solicit, ac- cept, use, and dispose of gifts, bequests, or de- vises of services or property, both real and personal, for the purpose of establishing and carrying out the program described in sub- section (a). Gifts, bequests, or devises of money and proceeds from the sales of other property received as gifts, bequests, or devises shall be deposited in the Treasury and shall be available for disbursement upon order of the Secretary. (2) Criteria for acceptance The Secretary shall establish criteria for de- termining whether to solicit and accept gifts, bequests, or devises under paragraph (1), in- cluding criteria that ensure that the accept- ance of any gifts, bequests, or devises would not— (A) reflect unfavorably on the ability of the Secretary to carry out the Secretary’s responsibilities in a fair and objective man- ner; or (B) compromise, or appear to compromise, the integrity of any governmental program or any officer or employee involved in the program. (Pub. L. 89–642, § 21, as added Pub. L. 102–342, title II, § 201, Aug. 14, 1992, 106 Stat. 912.) § 1791. Bill Emerson Good Samaritan Food Dona- tion Act (a) Short title This section may be cited as the ‘‘Bill Emer- son Good Samaritan Food Donation Act’’. (b) Definitions As used in this section: (1) Apparently fit grocery product The term ‘‘apparently fit grocery product’’ means a grocery product that meets all qual- ity and labeling standards imposed by Federal, State, and local laws and regulations even though the product may not be readily mar- ketable due to appearance, age, freshness, grade, size, surplus, or other conditions. (2) Apparently wholesome food The term ‘‘apparently wholesome food’’ means 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 appear- ance, age, freshness, grade, size, surplus, or other conditions. (3) Donate The term ‘‘donate’’ means to give without requiring anything of monetary value from the recipient, except that the term shall in- clude giving by a nonprofit organization to an- other nonprofit organization, notwithstanding that the donor organization has charged a nominal fee to the donee organization, if the ultimate recipient or user is not required to give anything of monetary value or is charged a good Samaritan reduced price. (4) Food The term ‘‘food’’ means any raw, cooked, processed, or prepared edible substance, ice, Page 5063 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1791 beverage, or ingredient used or intended for use in whole or in part for human consump- tion. (5) Gleaner The term ‘‘gleaner’’ means a person who har- vests for free distribution to the needy, or for donation to a nonprofit organization for ulti- mate distribution to the needy, an agricul- tural crop that has been donated by the owner. (6) Good Samaritan reduced price The term ‘‘good Samaritan reduced price’’ means, with respect to the price of an appar- ently wholesome food or apparently fit gro- cery product, a price that is an amount not greater than the cost of handling, admin- istering, harvesting, processing, packaging, transporting, and distributing the apparently wholesome food or apparently fit grocery product. (7) Grocery product The term ‘‘grocery product’’ means a nonfood grocery product, including a dispos- able paper or plastic product, household clean- ing product, laundry detergent, cleaning prod- uct, or miscellaneous household item. (8) Gross negligence The term ‘‘gross negligence’’ means vol- untary 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. (9) Intentional misconduct The term ‘‘intentional misconduct’’ means conduct by a person with knowledge (at the time of the conduct) that the conduct is harm- ful to the health or well-being of another per- son. (10) Nonprofit organization The term ‘‘nonprofit organization’’ means an incorporated or unincorporated entity that— (A) is operating for religious, charitable, or educational purposes; and (B) does not provide net earnings to, or op- erate in any other manner that inures to the benefit of, any officer, employee, or share- holder of the entity. (11) Person The term ‘‘person’’ means an individual, cor- poration, partnership, organization, associa- tion, or governmental entity, including a re- tail grocer, wholesaler, hotel, motel, manufac- turer, restaurant, caterer, farmer, and non- profit food distributor or hospital. In the case of a corporation, partnership, organization, as- sociation, or governmental entity, the term includes an officer, director, partner, deacon, trustee, council member, or other elected or appointed individual responsible for the gov- ernance of the entity. (12) Qualified direct donor The term ‘‘qualified direct donor’’ means a retail grocer, wholesaler, agricultural pro- ducer, agricultural processor, agricultural dis- tributor, restaurant, caterer, school food au- thority, or institution of higher education (as defined in section 1002 of title 20). (c) Liability for damages from donated food and grocery products (1) Liability of person or gleaner A person or gleaner shall not be subject to civil or criminal liability arising from the na- ture, age, packaging, or condition of appar- ently wholesome food or an apparently fit gro- cery product that the person or gleaner do- nates in good faith to a nonprofit organization for ultimate distribution to needy individuals at zero cost or at a good Samaritan reduced price. (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 appar- ently wholesome food or an apparently fit gro- cery product that the nonprofit organization received as a donation in good faith from a person or gleaner for ultimate distribution to needy individuals at zero cost or at a good Sa- maritan reduced price. (3) Direct donations to needy individuals A qualified direct donor shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of appar- ently wholesome food or an apparently fit gro- cery product that the qualified direct donor donates in good faith to a needy individual at zero cost. (4) Exception Paragraphs (1), (2), and (3) shall not apply to an injury to or death of an ultimate user or re- cipient of the food or grocery product that re- sults from an act or omission of the person, gleaner, or nonprofit organization, as applica- ble, constituting gross negligence or inten- tional misconduct. (d) Collection or gleaning of donations A person who allows the collection or gleaning of donations on property owned or occupied by the person by gleaners, or paid or unpaid rep- resentatives of a nonprofit organization, for ul- timate distribution to needy individuals shall not be subject to civil or criminal liability that arises due to the injury or death of the gleaner or representative, except that this paragraph shall not apply to an injury or death that re- sults from an act or omission of the person con- stituting gross negligence or intentional mis- conduct. (e) Partial compliance If some or all of the donated food and grocery products do not meet all quality and labeling standards imposed by Federal, State, and local laws and regulations, the person or gleaner who donates the food and grocery products shall not be subject to civil or criminal liability in ac- cordance with this section if the nonprofit orga- nization that receives the donated food or gro- cery products— (1) is informed by the donor of the distressed or defective condition of the donated food or grocery products; (2) agrees to recondition the donated food or grocery products to comply with all the qual- ity and labeling standards prior to distribu- tion; and Page 5064 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1792 (3) is knowledgeable of the standards to properly recondition the donated food or gro- cery product. (f) Construction This section shall not be construed to create any liability. Nothing in this section shall be construed to supercede State or local health reg- ulations. (Pub. L. 89–642, § 22, formerly Pub. L. 101–610, title IV, § 402, Nov. 16, 1990, 104 Stat. 3183; renum- bered § 22 and amended Pub. L. 104–210, § 1(a)(2), (b), Oct. 1, 1996, 110 Stat. 3011, 3012; Pub. L. 117–362, § 1, Jan. 5, 2023, 136 Stat. 6295.) Editorial Notes CODIFICATION Section was formerly classified to section 12672 of this title prior to renumbering by Pub. L. 104–210. AMENDMENTS 2023—Subsec. (b)(3). Pub. L. 117–362, § 1(1)(A), inserted ‘‘or is charged a good Samaritan reduced price’’ before period at end. Subsec. (b)(6) to (11). Pub. L. 117–362, § 1(1)(B), (C), added par. (6) and redesignated former pars. (6) to (10) as (7) to (11), respectively. Subsec. (b)(12). Pub. L. 117–362, § 1(1)(D), added par. (12). Subsec. (c)(1), (2). Pub. L. 117–362, § 1(2)(A), inserted ‘‘at zero cost or at a good Samaritan reduced price’’ after ‘‘needy individuals’’. Subsec. (c)(3). Pub. L. 117–362, § 1(2)(C), added par. (3). Former par. (3) redesignated (4). Subsec. (c)(4). Pub. L. 117–362, § 1(2)(B), (D), redesig- nated par. (3) as (4) and substituted ‘‘, (2), and (3)’’ for ‘‘and (2)’’. 1996—Pub. L. 104–210, § 1(a)(2)(A), substituted ‘‘Bill Emerson’’ for ‘‘Model’’ in section catchline. Subsec. (a). Pub. L. 104–210, § 1(a)(2)(B), inserted ‘‘Bill Emerson’’ before ‘‘Good’’. Subsec. (b)(7). Pub. L. 104–210, § 1(a)(2)(C), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: ‘‘The term ‘gross negligence’ means voluntary and conscious con- duct by a person with knowledge (at the time of the conduct) that the conduct is likely to be harmful to the health or well-being of another person.’’ Subsec. (c). Pub. L. 104–210, § 1(a)(2)(D), added subsec. (c) and struck out heading and text of former subsec. (c). Text read as follows: ‘‘A person or gleaner 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 person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals, except that this paragraph shall not apply to an injury to or death of an ultimate user or re- cipient of the food or grocery product that results from an act or omission of the donor constituting gross neg- ligence or intentional misconduct.’’ Subsec. (f). Pub. L. 104–210, § 1(a)(2)(E), inserted at end ‘‘Nothing in this section shall be construed to supercede State or local health regulations.’’ § 1792. Promoting Federal food donation (a) In general Not later than 180 days after June 20, 2008, the Federal Acquisition Regulation issued in accord- ance with section 1303 of title 41 shall be revised to provide that all contracts above $25,000 for the provision, service, or sale of food in the United States, or for the lease or rental of Fed- eral property to a private entity for events at which food is provided in the United States, shall include a clause that— (1) encourages the donation of excess, appar- ently wholesome food to nonprofit organiza- tions that provide assistance to food-insecure people in the United States; and (2) states the terms and conditions described in subsection (b). (b) Terms and conditions (1) Costs In any case 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, the head of the executive agency shall not as- sume 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 under this section. (2) Liability An executive agency (including an executive agency that enters into a contract with a con- tractor) and any contractor making donations pursuant to this section shall be exempt from civil and criminal liability to the extent pro- vided under section 1791 of this title. (Pub. L. 110–247, § 4, June 20, 2008, 122 Stat. 2314.) Editorial Notes REFERENCES IN TEXT This section, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 110–247, June 20, 2008, 122 Stat. 2314, which enacted this section and pro- visions set out as notes under this section and section 1771 of this title. For complete classification of this Act to the Code, see Short Title of 2008 Amendment note set out under section 1771 of this title and Tables. CODIFICATION Section was enacted as part of the Federal Food Do- nation Act of 2008, and not as part of the Child Nutri- tion Act of 1966 which comprises this chapter. In subsec. (a), ‘‘section 1303 of title 41’’ substituted for ‘‘section 25 of the Office of Federal Procurement Policy Act (41 U.S.C. 421)’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act en- acted Title 41, Public Contracts. Statutory Notes and Related Subsidiaries PURPOSE Pub. L. 110–247, § 2, June 20, 2008, 122 Stat. 2314, pro- vided that: ‘‘The purpose of this Act [enacting this sec- tion and provisions set out as notes under this section and section 1771 of this title] is to encourage executive agencies and contractors of executive agencies, to the maximum extent practicable and safe, to donate ex- cess, apparently wholesome food to feed food-insecure people in the United States.’’ DEFINITIONS Pub. L. 110–247, § 3, June 20, 2008, 122 Stat. 2314, pro- vided that: ‘‘In this Act [enacting this section and pro- visions set out as notes under this section and section 1771 of this title]: ‘‘(1) APPARENTLY WHOLESOME FOOD.—The term ‘ap- parently wholesome food’ has the meaning given the term in section 2(b) [probably means subsec. (b)] of the Bill Emerson Good Samaritan Food Donation Act (42 U.S.C. 1791(b)).