FoodLegal

By Joe Lederman (FoodLegal Principal) and Dr. Rozita Spirovska Vaskoska (FoodLegal Scientist)

© Lawmedia Pty Ltd, August 2021

The Foodbank organization is Australia’s main food relief supplier, responsible for 70% of the food rescued nationwide. It is not just the non- profit pantry for Australia’s welfare sector but is responsible for the logistics of collection of donated food from food companies and retailers, as well as arranging the logistics of warehousing, transport and any re- labelling (if required) and distribution of food products to where they are most needed.

FoodLegal is a strong supporter of Foodbank and provides legal support to the organization and potential food donors. Food donors have multiple benefits from donating food that they cannot longer sell for various reasons, including food past its best before date. Every State and Territory in Australia have law provisions that protect food donors from liability if they have donated food in good faith and have fulfilled few more reasonable conditions.

FoodLegal recently reviewed the Foodbank`s food safety program and updated its Donation- Product Acceptance Guidelines (now renamed as Food and Grocery Acceptance Guidelines).

In this article, FoodLegal explains how and why it should now be easier and more convenient for any food company or retailer to donate surplus or redundant inventories to Foodbank and generate business benefits in so doing in a number of ways.

Foodbank

Foodbank welcomes food donations as well as monetary donations, and values both equally. Foodbank works closely with farming communities, manufacturers, distributors, retailers, charity partners, schools and transport services to obtain and supply surplus food to charities, schools and individuals.

Foodbank now has updated the Foodbank Donation Acceptance Guidelines (renamed as Food and Grocery Acceptance Guidelines) which define the guiding principles of what will and what will not be accepted from food donors as well as safety guidelines for different products with different Use By and Best Before dates. A copy of these guidelines can be found at the link at the end of this article.

FoodLegal endorsement of Foodbank

FoodLegal is a strong supporter of the mission of Foodbank .

1.   Foodbank has conducted a legal and scientific review and approval of the existing Foodbank Donation- Product Acceptance Guidelines (now renamed as Food and Grocery Acceptance Guidelines).

2.     FoodLegal also reviewed the existing arrangement between Foodbank and four of the major Australian food and grocery retailers (Coles, Woolworths, Metcash, ALDI).

3.     At no cost to Foodbank and its suppliers, FoodLegal is able to facilitate any legal or scientific assessment aspects of any donation arrangement for any company that is considering becoming a food donor to Foodbank .

General legal and scientific principles of food donations to Foodbank 

On what conditions is food still safe to donate even though it must be disposed of?

Retailers and food distributors may need to dispose food for various reasons. The following scenarios are common situations where, despite this proposition, it is legally permissible to donate the affected food product to Foodbank :

·        product that is out of specification,

·        products close to expiry,

·        products that have been damaged,

·        products with incorrect packaging or underweight,

·        products that a retailer has deleted from its range,

·        product that is surplus to requirement,

·        new product development trial products, and

·        product with undeclared allergens.

In some such circumstances, the food might have to be disposed by law based on Standard 3.2.2 of the Australia and New Zealand Food Standards Code, for example, food that is subject to recall, food that had been returned, food that is not safe or suitable, or food that is reasonably suspected of not being safe or suitable.

Each of the above circumstances would typically have created an additional expense for a food company paying to dispose, destroy or quarantine the food.

While some safety issues cannot be resolved and thus some foods cannot be donated, products past their Best Before date are generally still safe to consume until such later date as may be specified by the supplier to be the mandatory Use By date. Foodbank is legally permitted to distribute food products past their Best Before date, even though the product may have a reduced quality over time but nonetheless be assessed as safe for human consumption.

In addition, some safety issues that are compliance based might be resolvable by Foodbank in conjunction with FoodLegal. For instance, if a food is unsafe as its label is missing the declaration of an allergen, this can be resolved by Foodbank at its own cost by over-stickering the product with correct details of the allergen.

Benefits from donating food

While donating food is usually driven by the moral imperatives of assisting the less fortunate and avoiding food waste, a food retailer or a food supplier also can achieve the following significant business savings:

-        No need to pay landfill/tip fees

-        No need to deface the product

-        No need to export or repurpose the food (ex. for feed)

-        No need to rework the food

In Australia, tax deductions by the Australian Taxation Office (ATO) are also available for donors of property (in this case food) made to a deductible gift recipient (DGR) such as Foodbank . Thus, donors fulfilling the conditions of the ATO, can claim tax deductions.

New opportunities for private label manufacturers and suppliers

Private label manufacturers and suppliers now have a new opportunity to donate their products with the approval of their retailer and wholesaler. This is because the major retailers. Woolworths, Coles, Metcash and ALDI now permit their suppliers to donate the private label branded products to Foodbank . Woolworths and Metcash have given authority to their suppliers and Foodbank respectively to donate/ accept products from own label without repackaging of the products.

No liability for food donors

Every Australian State and Territory has an Act that protects food donors from civil legal liability. The relevant Acts for all Australian States and Territories are listed in Table 1.

Table 1. Overview of regulation protecting food donors from civil legal liability

The definitions of donating, and the conditions for not bearing liability are similar among states and territories. As an example, the New South Wales Civil Liability Act has the following provisions for protection of food donors:

58C   Protection of food donors

(1)  A person who donates food (the food donor) does not incur any civil liability in respect of any death or personal injury that results from the consumption of the food if—

(a)  the food donor donated the food—

(i)  in good faith for a charitable or benevolent purpose, and

(ii)  with the intention that the consumer of the food would not have to pay for the food, and

(b)  the food was safe to consume at the time it left the possession or control of the food donor, and

(c)  where the food was of a nature that required it to be handled in a particular way to ensure that it remained safe to consume after it left the possession or control of the food donor—the food donor informed the person to whom the food donor gave the food of those handling requirements, and

(d)  where the food would only have remained safe to consume for a particular period of time after it left the possession or control of the food donor—the food donor informed the person to whom the food donor gave the food of that time limit.

(2)  For the purposes of this section, food is safe to consume if it is not unsafe food.

The general rule is that as long as the food is donated in good faith, with no intention of receiving payment, it was safe when it left the possession of the donor, instructions are provided for handling requirements and the duration of time it will remain safe, the donor will not bear any liability for personal injury of death to the person consuming the food.

Benefits for food donors from partnership between Foodbank and FoodLegal

Food retailers, wholesalers, manufacturers, and suppliers can benefit from the partnership between Foodbank and FoodLegal by partnering consultations with FoodLegal, possibility of reaching out for advice and no legal charge in some matters related to the donation to Foodbank.

For any queries or clarification in relation to donations Foodbank, do not hesitate to contact Dr. Rozita Vaskoska (rozita.vaskoska@foodlegal.com.au) or Elisa Silverman (elisa.silverman@foodlegal.com.au).

This is general information rather than legal advice and is current as of 2 Dec 2021. We recommend you seek legal advice for your specific circumstances before making any commercial decisions.