The 2023 Law That Made It Even Safer to Donate Surplus Food

Ask a restaurant owner why they throw away good food instead of donating it, and you'll usually hear the same answer: fear of being sued. It's the single most-cited reason businesses give for sending surplus to the dumpster. The frustrating part? That fear has been legally unfounded in the United States for nearly three decades — and in January 2023, the protection got even stronger.

Standing on the shoulders of the Emerson Act

Since 1996, the Bill Emerson Good Samaritan Food Donation Act has shielded donors from civil and criminal liability when they give food in good faith to a nonprofit. As long as you aren't acting with gross negligence or intentional misconduct, you're protected. For 27 years, though, that protection had two gaps — and on January 5, 2023, President Biden signed the bipartisan Food Donation Improvement Act (FDIA) to close them.

What changed

The FDIA expanded the law in two meaningful ways. First, it extended protection to food donated at a "good Samaritan reduced price" — a price no higher than the cost of handling and getting the food where it needs to go. Before, the Emerson Act only covered food given away entirely for free, which left low-cost models like nonprofit grocery stores in a legal gray zone.

Second — and this is the big one — it extended liability protection to qualified direct donors. Restaurants, caterers, grocery stores, schools, and farmers can now donate good food directly to individuals and community groups, not only through a nonprofit intermediary. That removes a layer of friction for exactly the kind of fast, local donation that keeps perishable food usable.

Protection plus a tax break

For businesses, the legal safety net pairs with a financial incentive. Under IRC Section 170(e)(3), companies can deduct up to twice the cost basis of donated food inventory — meaning the food you give away can lower your tax bill, not just your waste-hauling fees. Liability protection removes the fear; the enhanced deduction adds the upside.

The law has done its job on paper. The remaining challenge is awareness: study after study shows most would-be donors simply don't know how thoroughly they're protected.

Every donation you make through Pantry is covered by these federal protections, and your tax receipt is generated automatically. The law is on your side — let's put it to work feeding neighbors.