FLPC and NRDC Release New Fact Sheet on Strengthening Protections for Food Donation

Food donation provides a critical link between organizations with wholesome surplus foods and the 42 million Americans who are food-insecure today. Yet while there are strong federal and state protections, many food manufacturers, retailers, and restaurants cite fear of liability as one of the main barriers to donating food. The Harvard Law School Food Law and Policy Clinic (FLPC) and Natural Resources Defense Council (NRDC) recently created a fact sheet with recommendations to strengthen the Bill Emerson Good Samaritan Act.

The Bill Emerson Good Samaritan Act, passed by Congress in 1996, encourages donations through a broad range of protections for food donors, but many seem unaware of these protections. FLPC and NRDC first looked at the challenges impacting use of the Act in 2015’s Federal Enhanced Tax Deduction for Food Donation: A Legal Guide. This newly released fact sheet strengthens the suggestions made in the legal guide, explaining five ways the law should be updated and implemented to expand and strengthen the protections—and ensure they better align with the current food-recovery landscape:

  1. Assign an executive agency, such as the U.S. Department of Agriculture, to oversee implementation and interpretation of the law.
  2. Extend protections to nonprofits that sell food at a discounted price, as well as their donors.
  3. Extend protections to donations made by food service establishments and retailers directly to individuals.
  4. Limit labeling requirement to comply with safety-related federal, state, and local laws, but not immaterial errors such as incorrect weight.
  5. Explicitly extend protections to past-dated food.

Read the “Recommendations to Strengthen the Bill Emerson Good Samaritan Act” fact sheet.

Farm Animals Actually Eat People’s Leftovers — And It’s Good For The Planet

Originally written and published by Joseph Erbentraut, Senior Reporter, The Huffington Post on September 28, 2016.

When restaurants and grocery stores end up with scraps and other leftovers that cannot be donated to food banks, what happens to them? A lot end up in landfills, contributing to the already massive amounts of food waste that emits methane, a potent greenhouse gas, as it breaks down. But a growing amount is being used to feed farm animals.

As the EPA’s Food Recovery Hierarchy specifies, this strategy is one of the most effective ways to deal with food waste that cannot be used to feed people. The practice is an age-old one that fell out of fashion in the 1980s due to a number of disease outbreaks that were linked to animal feed. Today, however, it appears to be having a comeback as interest in food waste reduction efforts is rising dramatically, evidenced by a range of efforts across the food industry.

In general, this is how it works: Leftovers such as kitchen scraps and plate waste are collected, treated and processed into an oat-like consistency, then are fed to livestock such as pigs and cows. Even zoo animals can benefit from this type of feed.

Darden Restaurants is among the companies getting on board. In 2014, Darden, which owns national chains including Olive Garden, LongHorn Steakhouse and The Capital Grille, launched an organics recycling pilot program. The company sends scraps and other food waste that cannot go to food banks to be converted into animal feed, and composts other waste through the program.

The nascent program still represents just a small percentage — 0.53 percent, according to a company report — of Darden’s overall recycling efforts and is only taking place in a limited number of locations, the exact number of which a company spokesman declined to disclose. Still, Darden appears to be alone in its food recycling efforts (the company has also been accused of underpaying and discriminating against workers.)

Some university dining halls, like facilities at Rutgers and University of California at Berkeley, have also instituted similar programs. Rutgers diverts about 4 million pounds of waste from landfills per year this way, saving the university’s dining services division about $100,000 annually in waste-hauling costs.

Grocery stores have also embraced the concept. Quest Resource Management Group helps grocers and other companies reduce the amount of waste they generate. The largest portion of Quest’s business comes from its work helping grocery stores reduce their food waste, mostly by donating scraps to farms. According to Hatch, the company helped divert over 600,000 tons of scraps from the waste stream last year, 60 percent of which was used to feed animals, while 35 percent was composted and another 5 percent was converted into a renewable energy source by going through anaerobic digestion. “Those tons, before we came along, were all going to the landfill,” said Ray Hatch, the company’s CEO. “Everything went in the dumpster.”

The company works with four of the top 10 national food retailers, including Walmart, and three large regional chains, according to Vanessa Lepice, its vice president of marketing and new business development. All told, they are working with about 6,000 grocery stores throughout the U.S. and Puerto Rico. They train partnering stores’ employees how to properly separate scraps that can be donated to local farms and processed into animal feed from types of waste that are not safe for the animals to eat, like plastic packaging and raw meat. It appears to be working. The amount of food waste the company has diverted has grown fivefold since the program was first rolled out in 2010, including about 20 percent each of the past two years, Quest said. But perhaps it’s not growing fast enough. The practice still hasn’t caught on in a way that would make a more significant dent in the 60 million tons, or $218 billion worth of food, that the U.S. wastes each year.

Zhengxia Dou, a professor of agricultural systems at the University of Pennsylvania, believes she knows why progress is lagging. She, along with several colleagues, explored the topic in a paper published earlier this year in the academic journal Global Food Security. According to Dou, the strictness of health-related regulations concerning the practice is a big factor. Federal law mandates that scraps must be heated to 100 degrees Celsius for 30 minutes before being fed to pigs, for example. An incompatibility with the precision feeding techniques typically preferred on today’s farms, particularly larger ones, is another.

Technological innovation will be necessary in order to overcome these barriers, Dou said. She hasn’t seen much evidence of that happening quite yet. “As an academic, I don’t know much how to make it happen, from an idea to a feasible technological solution and to a successful business,” Dou said in an email. Another likely reason is that the regulations concerning the use of food scraps as animal feed vary widely from state to state.

A new report from Harvard University and University of Arkansas researchers published last month aims to address any confusion about the practice by laying out all of the federal- and state-level rules and suggesting best practices for safe and effective implementation.

“We want to show people that this is what you can do and this is how you do it, to encourage people to start this process again,” said Christina Rice, a clinical fellow at Harvard’s Food and Policy Law Center and one of the report’s authors. Rice believes that the practice will continue to become more common, and as that happens, she is confident many current obstacles will dissipate. “This got taken out of the conversation for a while, but it can happen again,” Rice added.

Lepice agreed, pointing out that states like Minnesota and California have instituted tougher commercial recycling regulations, which will encourage firms to get more creative in addressing their waste issues. They may, she believes, turn to animal feed diversion as a solution. She expects consumer pressure will aid in that progress. “Consumers are driving this, too. They’re asking what companies are doing with food waste,” Lepice added. “I firmly believe we’re on the right path.”

CHLPI Talks Policy at the Annual Food is Medicine Coalition Symposium in New York


Photo of graphic recording provided by ImageThink.

On September 12-14, CHLPI attended and presented at the Food is Medicine Coalition’s annual Advocacy Capacity Building Symposium. For years, CHLPI has partnered with the Food is Medicine Coalition (FIMC), a national network of food and nutrition service providers that work to help nutritious food reach those who are severely ill.

Together, FIMC and CHLPI strive to advance a comprehensive policy agenda that centers on the fundamental truth that provision of food should be a medical response to certain health conditions. The goal is for therapeutic meals (also known as medically-tailored meals, or meals designed by a Registered Dietitian to be appropriate for an individual with one or more health conditions) to become integrated into the delivery and financing of healthcare.

At this year’s symposium, CHLPI presented on federal policy action items and helped set the agenda for the year ahead. The symposium featured advice and support from a well-known champion of the anti-hunger movement, Congressman Jim McGovern (MA-2nd), and CHLPI looks forward to working with FIMC, the Congressman, and other key partners to help more individuals in need receive therapeutic meals.

CHLPI Highlights Food Is Medicine at the 2016 National Public Health Law Conference


On September 17, 2016, CHLPI’s Staff Attorney Katie Garfield presented on the Center’s innovative research and advocacy work on the role of food as medicine at the 2016 National Public Health Law Conference in Washington, D.C.

 The Conference, organized by The Network for Public Health Law and American Society for Law, Medicine, and Ethics, brought together a wide range of experts and leaders in public health law, including many academic researchers, local and state public health officials, advocates, and representatives of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, and White House. At the conference, these experts explored current opportunities and challenges in addressing public health priorities such as the opioid epidemic and social determinants of health.

Katie presented with Mathew Swinburne, Senior Staff Attorney for the Network for Public Health Law, and Aliza Wasserman, Policy and Advocacy Manager for Wholesome Wave, on “Nutrition Programs and the Public’s Health.” Over the course of this panel, Katie, Mathew, and Aliza examined the close relationship between food security and patient health, and highlighted the roles that health care providers and government programs can play in breaking the cycle of food insecurity, poor health outcomes, and escalating costs. In particular, the panel highlighted promising initial evidence on the use nutrition incentives, fruit and vegetable prescriptions, and medically-tailored meals to improve patient health. However, the panel noted that without greater support from hospitals, health insurers, and policymakers, such interventions may not reach their full potential. Panelists therefore advocated for expanded support of nutrition interventions via insurance coverage and non-profit hospital Community Benefit activities as well as broader recognition of the impact of food insecurity in state and federal policies, such as the Hospital Readmissions Reduction Program.

Harvard Law School Partners with Food For Free After Food Recovery Conference

Originally published by Harvard Law School on September 23, 2016.

Kicking off the semester sustainably, Harvard Law School launched its first formal food donation program, in partnership with Food For Free, a local nonprofit that recovers wasted food from companies across Cambridge and Boston to redistribute to the area’s hungry. HLS will set aside excess prepackaged and retail foods from its dining halls for weekly pickup by Food For Free.

Food recovery and wasted food have long been a focus at HLS. In May 2016, HLS piloted its first food donation at a zero-waste Commencement lunch and was able to recover 900 meals that were distributed by Food For Free to local food pantries and shelters. This initiative was made possible through collaboration with Restaurant Associates (RA), HLS’s food services provider, HLS’s Sustainability Manager, and guidance from the HLS Food Law and Policy Clinic.

The Food Law and Policy Clinic is tackling food waste through work on date labeling policies, food donation policies and liabilities, and through education efforts like their recent Reduce Recover: Save Food for People conference in June.

Across campus, Harvard University Dining Services, which serves all 14 undergraduate dining halls and the Harvard Business School is also partnering with Food for Free to redistribute prepared and prepackaged foods. These efforts align with Harvard’s commitment to build and operate a healthier, more sustainable campus. As outlined in the Harvard Sustainability Plan, Harvard has a University-wide goal to reduce waste 50% per capita by 2020, and the Office for Sustainability is in the process of creating Sustainable and Healthful Food Standards, which will address food waste.

While the partnership between HLS and Food For Free will initially focus on the donation of just prepackaged and retail foods, they are looking forward to expanding donations to include all prepared foods that are safe to donate from the cafeteria and catering services on campus. Elizabeth Marble Caton, the Sustainability Manager at HLS, completed a pilot study that found that the wasted food generated through Restaurant Associates’ catered events on campus is roughly 40 percent or .59 pounds of food per attendee. “We are eager to recover this wasted food and redistribute it to those in our community that are in need,” said Marble Caton.

Read FLPC’s previous post about the food donation program.


ACLU and CHLPI File Suit Against Colorado Medicaid for HCV Restrictions

Originally published by North Denver News on September 19th, 2016.

The ACLU of Colorado filed a federal class action lawsuit this morning on behalf of thousands of low-income Coloradans suffering from Hepatitis C who are being denied life-saving treatment due to Colorado Medicaid restrictions that force them to incur serious harm to their health before gaining access to the cure.

“Federal law requires state Medicaid agencies to pay for medically necessary treatment, but Colorado Medicaid illegally denies a cure for Hepatitis C for reasons that are not medically justified,” said Mark Silverstein, ACLU of Colorado Legal Director. “We are challenging a policy that forces Coloradans who cannot afford private insurance to live with the serious negative health effects of Hepatitis C and to wait for a cure, possibly for years, until they have suffered measurable and potentially irreversible liver damage.”

Hepatitis C is a life-threatening, communicable disease that attacks the liver. It is the most deadly infectious disease in the U.S., killing more Americans than the next 60 infectious diseases combined. Even in the initial stages of the disease, Hepatitis C can cause serious symptoms, including fatigue, joint pain, depression, arthritis, as well as an increased risk of heart attacks, diabetes, nerve damage, jaundice, and various cancers.

Breakthrough medications approved by the FDA over the last three years cure Hepatitis C in more than 90 percent of cases. These treatments are available without restrictions for patients covered by Medicare, the Veterans Administration, and the overwhelming majority of commercial health insurers in Colorado.

There are approximately 14,400 low-income Coloradans infected with Hepatitis C who rely on Medicaid for healthcare. Federal law requires state Medicaid agencies to provide “medically necessary” services and treatments. Last November, the federal agency responsible for administering Medicaid issued guidance advising all state Medicaid agencies to provide access to the new treatment without imposing unreasonable restrictions.

For years, Colorado Medicaid required patients to demonstrate significant scarring on their liver, as indicated by a “fibrosis score” of F3 or higher on a F0 to F4 scale, before gaining access to treatment.

In July, the ACLU of Colorado wrote to the Colorado Department of Healthcare and Policy Financing (HCPF),the agency responsible for setting state Medicaid policy, to urge coverage of all patients regardless of “fibrosis score.”

“Providing full access to Hepatitis C treatments is the fiscally sound decision for Colorado Medicaid, because early treatment precludes expenses that would otherwise be incurred as a result of the disease’s progression,” the ACLU wrote in the July letter. The ACLU also noted that a federal court in Washington had recently ordered that state to lift restrictions similar to Colorado’s after concluding that treatment was medically necessary for all patients with chronic Hepatitis C infections.

Earlier this month, HCPF altered its policy to include patients with a fibrosis score of F2, an intermediate level of liver scarring, and added an ambiguous new exception for women of childbearing age who inform Medicaid that they plan to get pregnant in the following year.

“The latest policy change is a half-step that falls short of what the law requires, which is full access to medically necessary treatment for all patients with Hepatitis C,” said ACLU of Colorado Staff Attorney Sara Neel. “The ill-conceived pregnancy exception perversely incentivizes women to either commit to get pregnant or to lie to their doctor about their family planning decisions in order to gain access to treatment.”

Robert Cunningham, a Denver resident, is the named plaintiff and class representative in the suit. He was diagnosed with Hepatitis C in 2004 and has been denied access to treatment by Colorado Medicaid because his fibrosis score is F1.

“Everyone should have the right to treatment that can cure them. It should not be just reserved for some segments of the country, with the poorest being forced to wait and suffer,” said Cunningham. “I want to get healthy, and I want to give people like me a voice and help the system to change.”

The class action lawsuit was filed this morning in federal district court. Attorneys representing Cunningham and the plaintiff class include Silverstein and Neel, Kevin Costello from the Harvard Law School Center for Health Law and Policy Innovation, and ACLU cooperating attorneys Lawrence W. Treece and Lauren E. Schmidt of Brownstein Hyatt Farber Schreck LLP.

FLPC Director Joins New York Times’ “Room for Debate” on Food Waste

FLPC’s Director and Founder Emily Broad Leib joins other food waste reduction leaders for New York Times’ most recent edition of its opinion column, Room for Debate. The Wednesday, September 21, 2016 edition is focused on “Keeping Food on the Plate, and Out of Landfills.”


Emily’s contribution to the discussion examines federal and state laws regarding food waste, and the intended (and unintended) effects of these laws.

Excerpt from article:

“…in the absence of federal law on date labels, no two states have the same date label rules. Several states even restrict or ban the sale or donation of past-date foods. Federal legislation is needed to eliminate state laws that require past-date — but still safe — foods to be wasted, and to standardize date labels so they are clearer to consumers.”

Read the rest of Emily’s article, and the rest of the Room for Debate contributions.

FLPC Director Interviewed by Change.org on Priorities in Food Policy and Laws

FLPC’s Founder and Director Emily Broad Leib was interviewed by Pulin Modi for change.org’s blog about the Clinic’s work, and the role the public can play in reducing food waste and affecting policy and legislation around food waste.

Excerpt from the interview:

“…consumers can make a huge difference in the market by virtue of their purchasing power, and the past few years have seen marked changes in business practices because of changing consumer demand. Asking what is in your food and where it came from, and making the decision to spend extra money (if you have that luxury) to buy better items can impact the market. Even though consumers have to pay a premium for healthy or sustainable products right now, over time these items will be more widely available and thus more affordable thanks to millions of consumers pushing the market.”

Read the full interview on change.org.

Learn more about FLPC’s current projects.

FLPC’s Emily Broad Leib to Deliver 9th Annual Judge Stephanie K. Seymour Distinguished Lecture in Law

FLPC’s Director Emily Broad Leib has been selected to deliver the 9th Annual Judge Stephanie K. Seymour Distinguished Lecture in Law at the University of Tulsa College of Law. On February 20, 2017, from 5:30pm to 7:00pm, she will speak about Food Justice as Social Justice.

Reception: 5:30 PM, The Pit
Lecture: 6:00–7:00 PM, Price & Turpen Courtroom

The reception and lecture are free and open to the public. TU Law offers one hour of CLE credit for members of the legal community at no cost. Please register to attend by emailing barbette-veit@utulsa.edu. The lecture will take place at the University of Tulsa College of Law, Price & Turpen Courtroom 3120 East 4th Place, Tulsa, Oklahoma 74104-9700.

About the Stephanie K. Seymour Distinguished Lecture in Law
The Stephanie K. Seymour Distinguished Lecture in Law is the only lecture series in the country established by former clerks to honor the judge for whom they served. TU Law Professor Janet K. Levit, former Dean and Dean John Rogers Endowed Chair, served as a clerk for Seymour, a Senior Judge on the 10th Circuit Court of Appeals. The lecture highlights the scholarship of an untenured law professor whose dedication and passion mirror that of Judge Seymour.

FLPC Director Emily Broad Leib Recognized as Top Innovative Woman in Food and Drink

The Center for Health Law and Policy Innovation and the Harvard Law School Food Law and Policy Clinic congratulate Emily Broad Leib, Director of the Food Law and Policy Clinic, for receiving the top spot on 2016’s list of Most Innovative Women in Food and Drink.

The list, released by Fortune and Food & Wine, highlights “women who had the most transformative impact in the last year on what we eat and drink.”

EBL Most Innovative Woman in Food and Drink 2016


View the full list of Most Innovative Women in Food and Drink.
Learn more about FLPC’s work to reduce food waste.

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