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2/2/2020 0 Comments
Food donation is a highly encouraged act of charity but many often do not donate in fear of accidentally incurring civil or criminal liability should a person be negatively affected by said donation. The Food Donors Protection Bill 2019 is expected to help alleviate these worries.
The trend in our homeland is apparent — more entities are jumping on the bandwagon in donating their excess perishable food to those in need via charities and non-profit organisations. However, the common concern among these entities is their liability should anything happen to the recipient due to consumption of donated food. To assuage such concerns, there are calls to enact a food donors protection law in Malaysia to encourage more entities to give away their excess food. Given the moniker ‘Good Samaritan law’, such legislations would normally protect food donors from civil and criminal liability arising out of food donations, thus giving the donors a sense of assurance.
At last, the time is finally ripe for meaningful actions to cut food waste. Dewan Rakyat in October 2019, and Dewan Negara in December 2019, have approved the Food Donors Protection Bill 2019 (‘2019 Bill’), aimed at encouraging the public to donate food without fear of being susceptible to legal charges while participating in food donation and supporting the government's Food Bank Programme. While lauding the good initiative, this article seeks to evaluate the salient features of the 2019 Bill. The author also briefly looks into similar laws of other jurisdictions to determine potential improvements to the 2019 Bill.
II. SALIENT FEATURES OF THE FOOD DONORS PROTECTION BILL 2019
The 2019 Bill is short and easy to understand, and its salient provisions are set out as follows:
III. INSIGHTS FROM FOREIGN JURISDICTIONS WITH FOOD DONORS PROTECTION LAWS
Notwithstanding the deft effort of the Parliament in enacting the 2019 Bill, it is still crucial to evaluate the facets of the 2019 Bill with reference to the food donors protection laws of other countries in order to make a leap forward and rectify existing flaws, if any.
A. Past-date Food Fit for Human Consumption
1. California Good Samaritan Food Donation Act
The California Good Samaritan Food Donation Act (‘Californian Act’) explicitly extends immunity from civil liability to the donation of food that is fit for human consumption even if it has exceeded the labeled shelf life date recommended by the manufacturer. Immunity for donors of past-date food will be granted as long as they make a good faith evaluation that the food is wholesome.
The rationale of such an extension is due to the fact that many expiry date labels on food have nothing to do with safety. Instead, those dates are general suggestions by manufacturers for when food is at its peak quality and freshness, not when it is unsafe to eat. The Californian Act must be lauded for strengthening the state’s food donor protection and encouraging more to join the bid in maximising food donation.
2. Malaysian food date marking system
In Malaysia, it is submitted that its current food date marking system causes consumer confusion and misinterpretation. An unfortunate consequence will be food being wasted because of safety concerns not founded on actual risks, but simply due to food passing its prime based on a superficial expiry date. The Food Regulations 1985 mandates that all food packaging must bear a date marking — signifying the expiry date or the date of minimum durability of that food. However, there is much confusion as to the terms ‘expiry date’ and ‘date of minimum durability’ that may discourage food donation. The Food Regulations 1985 defines ‘expiry date’ and ‘date of minimum durability’ as such:
A perusal of the words used in the Food Regulations 1985 reveals that an expired food product in the eyes of law may still be safe to eat, granted that its original nutritional values and taste may not be met. In fact, quality-based label dates are generally set far before the spoilage point, meaning that there is a significant amount of time past the label date during which the food is still safe to be consumed. By extension, these food can still be donated if they are properly stored. Yet, a majority of the Malaysian consumers — who are not well-versed with food laws — will not be able to appreciate the meaning of date labels. Consequently, they mistake the date of minimum durability for expiry dates, and that these labels are indicators of safety.
Inevitably, such confusion contributes to the waste of edible food. Instead of feeding the hungry, perfectly safe-to-eat food are sent to the municipal landfill, exacerbating the waste problem. Even with the 2019 Bill, potential food donors might be concerned about their liability for donating expired food products, as they are required to ensure that the food was safe for consumption at the time it was donated. Besides, supermarkets, food retailers or suppliers wishing to avoid wasting food will then have to donate the food before they expire. This will result in shorter retail shelf life for the products and the need for a complex stock management system, which constitutes a disincentive towards such entities in committing themselves to food donation.
Therefore, it is recommended that the 2019 Bill should follow the footsteps of the Californian Act. The 2019 Bill should include provisions that explicitly allow donation of food that is fit for human consumption even if it has exceeded the labeled expiry date, so long as food donors make a good faith evaluation that the food is still safe to eat.
B. Tax Incentives: The ‘Carrot’ to Encourage Food Donation
Although food donors are immune from tortious actions, provided that donations are made in good faith, long-lasting negative publicity remains probable. The 2019 Bill does not act as a robust shield against negative publicity for food donors. For foodservice operators, where reputation and goodwill are of utmost commercial importance, minimising or eliminating liability might not be sufficient to entice them to hand over their excess food. On top of that, various logistics cost is involved in food redistribution — such as storage, transportation, and quality control — which can eat into their profit. As such, extra assurance or incentives may be required.
It is submitted that the availability of tax deductions or incentives have a likelihood of increasing an individual’s and corporation’s willingness to make contributions. A few European Union countries have made food donation tax deductible (i.e. cost incurred in the donation can be counted as operating expense to reduce taxable income). In France 60% and Spain 35% of the net book value of donated food can be claimed as a corporate tax credit, thus the food donors can deduct that percentage of the value of the donated food from the corporate tax on their revenue.
Such incentives stimulate food donation, or at least make donation more economically feasible for donors to continue their good acts, bearing in mind that packaging, cleaning and transporting the excess food all involve cost. Fortunately, Domestic Trade and Consumer Affairs Minister, Datuk Seri Saifuddin Nasution Ismail, said that although the Bill has yet to offer tax relief incentives to donors, such measures could be introduced later. It remains to be seen when such incentives will be written into revenue law. However, it must be noted that when considering tax incentives in the future, the Parliament must give equal footing to all donors, especially non-corporate donors such as individuals, farmers, restaurant owners, and other small businesses.
C. Whereabouts of Protection against Criminal Liability?
In New Zealand, S.352 of the Food Act 2014 has provided similar reassurance to food donors — an ‘immunity for food donor’ clause — to encourage food donation without fear of liability. Food donors will be protected from both civil and criminal liability arising from the consumption of food donated by them. Similarly, food donors protection legislation, as it exists in Italy and the United States, limits both civil and criminal liability for good faith donation of food.
Interestingly, such protection against criminal liability is absent in the 2019 Bill. The author is of the view that such ambiguous silence can be counterproductive, as he fears that subsequent public discussion when realising the want of criminal liability protection will instead scare away possible donors. There are calls to strike down the protection against criminal negligence in the United States, for it unnecessarily provides too extensive a liability protection to food donors while severely limiting the legal recourse for a recipient that becomes ill from donated food. However, such argument does not hold water in the context of our country, for the immunity provided by the 2019 Bill is not absolute. Recipient affected by the donated food may still have his claim in both civil and criminal courts of law, as long as he can satisfy the four conditions in S.3 of the 2019 Bill.
Thus, it is submitted that relief against criminal liability should also be included in the proposed law.
IV. CLOSING REMARKS
To push people and companies to donate food, a Good Samaritan law is a promising start in Malaysia. The government should indeed be applauded for this exciting achievement, bringing down the barriers between willing food donors and those in need. However, based on the discussion above, it seems that there are apposite insights gleaned from the relevant food donors protection law of other jurisdictions.
Besides, the American counterpart, the Bill Emerson Good Samaritan Food Donation Act 1996 (‘Bill Emerson Act’) serves as a warning bell to the 2019 Bill. Though similar features are embedded in the Bill Emerson Act, food donations have not increased significantly, in part because potential food donors remain wary of liability. Therefore, grassroots efforts, policies, and programs should be implemented to complement the various protections proffered by the 2019 Bill, thereby increasing food donations. It is still too early to comment on the effectiveness of the 2019 Bill, and only time will tell if it is indeed effective.
Written by Benjamin Kho Jia Yuan, a final year law student of the Faculty of Law, University of Malaya.
Edited by Florence Yeap Xiao Qing.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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 See footnote 8, reg 14(1).
 See footnote 8, reg 14(2)(a).
 See footnote 8, reg 14(2)(b).
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 See footnote 3, S.3(c).
 See footnote 13.
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 See footnote 18, 9.
 See footnote 6, 83.
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