HB 226 — AN ACT TO AMEND TITLES 10 AND 16 OF THE DELAWARE CODE RELATING TO IMMUNITY FROM LIABILITY FOR DONATED FOOD.

(5) “Nonprofit organization” means an incorporated or unincorporated entity that is operating for religious, charitable, or educational purposes and does not provide net earnings to, or operate in any other way that inures to the benefit of, any officer, employee, or shareholder of the entity.

(6) “Perishable food” means any food that may spoil or otherwise become unfit for human consumption because of its nature, type, or physical condition.

“Perishable food” includes all of the following:

a.

Fresh and processed meats, poultry, seafood, dairy products, or bakery products.

b.

Eggs in the shell.

c.

Fresh fruits and vegetables.

(7) “Person” means an individual, corporation, business trust, estate trust, partnership, limited liability company, association, joint venture, or any other legal or commercial entity.

“Person” does not include a government;

governmental subdivision, agency, or instrumentality;

or a public corporation.

(8) “State agency” means any office, department, board, commission, committee, court, school district, board of education, or other instrumentality of the government of this State existing by virtue of an act of the General Assembly or of the Constitution of this State.

(9) “Wild game” means any of the following that are legally taken under the laws of this State:

a.

Game animals under § 701 of Title 7.

b.

Game birds under § 702 of Title 7.

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Game fish under § 906 of Title 7.

d.

Shellfish under § 1901 of Title 7.

§ 6822.

Immunity of a person or gleaner from liability.

(a) A person or gleaner who, in good faith, donates food for ultimate distribution without charge by a nonprofit organization or a state agency is not liable for civil damages or criminal penalties resulting from the nature, age, condition, or packaging of the donated food, unless an injury or death is caused by the gross negligence, recklessness, or intentional misconduct of the person or gleaner.

(b) A person who, in good faith, provides services related to the processing of wild game that is donated to a nonprofit organization or a state agency for ultimate distribution without charge by the nonprofit organization or the state agency is not liable for civil damages or criminal penalties resulting from the nature, age, condition, or packaging of the donated food, unless an injury or death is caused by the gross negligence, recklessness, or intentional misconduct of the person.

§ 6823.

Immunity of a nonprofit organization from liability.

(a) A nonprofit organization that, in good faith, accepts donated food for ultimate distribution without charge is not liable for civil damages or criminal penalties resulting from the nature, age, condition, or packaging of the donated food, unless an injury or death is caused by the gross negligence, recklessness, or intentional misconduct of the nonprofit organization.

§ 6824.

Authority of the Division of Public Health and the Department of Agriculture.

(a) This subchapter does not restrict or preempt the authority granted to the Division of Public Health or the Department of Agriculture by other law to inspect, regulate, or ban food.

(b) The Division of Public Health and the Department of Agriculture each may, in accordance with its respective authority, inspect an item of donated or gleaned food on the request of a nonprofit organization accepting donated or gleaned food.

Section 4.

The General Assembly directs the Division of Public Health to do all of the following.

(1) Review any of its regulations that have the effect of limiting the use of donated or gleaned food, with the goal of eliminating unnecessary regulations and increasing the supply of usable donated or gleaned food while protecting public health.

(2) After its review of its regulations and no later than 1 year after the enactment of this Act, report to the Governor and the members of the General Assembly its findings summarizing each regulation reviewed and what action the Division is taking as to retaining, modifying, or terminating each regulation.

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06/02/2021 07:02 PM SYNOPSIS Subchapter III, Chapter 68, Title 16 of the Delaware Code (“Subchapter III”) was originally enacted in 1982.

In 1996, President Clinton signed the Bill Emerson Good Samaritan Food Donation Act, 42 U.S.C.

§ 1791 (“Bill Emerson Act”).

The Bill Emerson Act preempts Subchapter III to the extent of any conflict, known as “partial preemption”.

This Act makes Subchapter III consistent with the Bill Emerson Act by protecting a “gleaner” from civil or criminal liability as it relates to their donation of the gleaned food.

Since the Bill Emerson Act only partially preempts state law on this subject, the State is free to provide greater protection than the Bill Emerson Act.

Therefore, this Act does all of the following:

1.

Extends to those who, in good faith, donate food to state agencies the same immunity from civil or criminal liability that is granted to those who, in good faith, donate food to nonprofit organizations.

2.

Specifically includes within the definition of “food” both perishable food and wild game to makes it clear that food, in all of its forms, is covered by this Act.

Thus, under this Act, those donating deer to the Division of Fish and Wildlife’s Sportsmen Against Hunger program would be immune from civil or criminal liability as it relates to the donation.

3.

Protects a person who, in good faith, provides services to a nonprofit organization or state agency related to the processing of wild game that is donated to a nonprofit organization or a state agency.

This Act removes the exemption from liability for donation of prepared food from Title 10 so that the exemption no longer appears in both Title 10 and Title 16.

The Act also clarifies the authority of Division of Public Health and Department of Agriculture relating to donated food.

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