Gleaners, Food Donations, and Protecting Your Good Nature

You’re in the food business, so what better way to show the Holiday Spirit than to do something with food, right? Not only does Parker Smith & Feek have clients who run restaurants and hotels, but also non-profit organizations with elaborate operations of food drives, donations, and distribution to the less fortunate all year long. Working together is what this season is all about, but there are certain insurance exposures you need to be aware of before you donate perishables.

Are You A Gleaner?

When a person donates to food to a non-profit organization, they are what Washington State law calls a “gleaner.” According to RCW 69.80.031, “[A] gleaner is not subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food [a perishable product legally fit for consumption] or an apparently fit grocery product [a non-perishable item approved for consumption]that the person or gleaner donates in good faith to a nonprofit organization for ultimate distribution to needy individuals, except that this subsection does 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 donor constituting gross negligence or intentional misconduct.”

What this basically does is divert the liability from the gleaner to the distributor, except in the case of “gross negligence.” Washington State law says that “gross negligence” (in the context of “Good Samaritan food donations”) happens when the gleaner or organization distributes a product that they had prior knowledge may harm others.

The Grinch who Saved Christmas

The shift of liability becomes an insurance and legal issue. This has caused the organizations we work with to reassess their policies and now many of them no longer take perishable items. Instead, they choose to take monetary donations and then buy the perishable items to distribute. This protects them by:

• Recalls – In the event of a recall, if money is exchanged for the product, regardless of the amount, the Good Samaritan food donation laws generally don’t apply. The producer is still therefore liable.
• Foodborne illness – Outside the event of prior knowledge leading to gross negligence as defined by law, the producer, not the distributor, is liable for tainted perishable products purchased by the organization.
• Use – After the item is distributed, the organization and gleaner’s liability is notgone, but significantly diminished as long as there are proper preparation and storage instructions on the item.

This doesn’t mean you can’t or shouldn’t donate food! Remember, if you donate in good faith and everything is fresh, then you should require no extra insurance. However, before you donate, have someone from our Hospitality Practice Group call the recipient organization to see if their insurance covers handling and storage in transit. Happy Holidays!

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