Can Restaurants Donate Leftover Food? Liability Shield and Tax Rules

Yes, restaurants can donate leftover food, and federal law goes out of its way to make it easy. The Bill Emerson Good Samaritan Food Donation Act shields restaurants from civil and criminal liability when they donate surplus food in good faith, and the tax code lets most operators deduct up to twice what the food cost to produce. Between the legal protection and the tax benefit, donating usually beats the dumpster on every measure that matters.

The Federal Liability Shield

The core protection sits in 42 U.S.C. § 1791, the Bill Emerson Good Samaritan Food Donation Act. It bars civil and criminal liability against anyone who donates apparently wholesome food in good faith to a nonprofit, based on the nature, age, packaging, or condition of that food.¹ Restaurants, caterers, and food trucks are all covered.

Only two things break the shield: gross negligence and intentional misconduct. Gross negligence means you knowingly ignored a real risk to someone’s health. Intentional misconduct means you handed over food you knew was unsafe.¹ A judgment call about whether a batch of soup is still good, made in good faith by a kitchen following its normal food safety practices, does not strip protection away.

What the 2023 Update Added

The Food Donation Improvement Act, signed in January 2023, expanded the Emerson Act in two ways that matter for restaurants. It created a “qualified direct donor” category that lets restaurants give food straight to a person in need without routing it through a nonprofit, as long as no money changes hands. And it extended the shield to food distributed at a “good Samaritan reduced price,” meaning a nonprofit can charge recipients a small fee that covers only handling, packaging, and transportation, without losing the protection.¹ Both changes widen the range of arrangements a restaurant can enter into and still be protected.

What Food Qualifies

The statute protects donations of “apparently wholesome food,” which is food that meets applicable quality and labeling standards even if it isn’t marketable due to appearance, freshness, grade, or surplus.² Overproduced menu items, unserved catering trays, cosmetically imperfect produce, and excess inventory all fit.

Food that misses a labeling requirement can still be donated if you tell the receiving nonprofit about the shortfall and the nonprofit agrees and is equipped to bring it into compliance.² That gives you a path to donate food that would otherwise be discarded over a packaging problem rather than a safety one.

Date Labels Are Not a Barrier

Past-date food is not off-limits. With the single exception of infant formula, no federal law requires date labels on food, and the dates you do see refer to quality, not safety. The USDA’s Food Safety and Inspection Service states that food not showing signs of spoilage “should be wholesome and may be sold, purchased, donated and consumed beyond the labeled ‘Best if Used By’ date.”³ Infant formula is the exception and should not be donated past its use-by date.⁴

What Should Not Enter the Donation Stream

Anything that has been served to a customer, placed on a self-service buffet, or otherwise exposed to potential contamination stays out. So does food that is visibly spoiled or moldy, and any food held in the temperature danger zone for more than two hours. Your donation pool is surplus that stayed under the kitchen’s control.

Safe Handling and Temperature

Most of what a restaurant would donate counts as TCS (Time/Temperature Control for Safety) food: cooked proteins, dairy dishes, cut produce, sauces. The FDA Food Code standard is straightforward. Cold TCS foods stay at or below 41°F, hot TCS foods at or above 135°F, and frozen food stays frozen solid.⁵

When you cool cooked food for donation, the FDA’s two-stage rule applies: 135°F to 70°F within two hours, then down to 41°F or below within the next four.⁶ That’s the same rule your kitchen already follows for anything you plan to hold overnight. Donation adds no new temperature rules; it just requires you to keep hitting the ones you already use. Insulated carriers, cold packs, or refrigerated transport get the food to the nonprofit in-range, and if it arrives out of range, it should be refused.

Who Can Receive Donated Food

The broadest liability protection applies when you donate to a nonprofit organization exempt under Section 501(c)(3) of the Internal Revenue Code.⁷ Food banks, soup kitchens, shelters, and community meal programs are the usual partners.

Since the 2023 update, you can also donate directly to a person in need as a qualified direct donor, provided the food is free.¹ The statute also covers gleaners, meaning people or groups who collect surplus food from establishments like restaurants for free distribution. Many local recovery organizations work that way, running scheduled pickup routes. Feeding America operates a platform that connects donors with local network partners who arrange collection; your local food bank is usually the fastest first call.

The Tax Deduction

Food donation gets more favorable tax treatment than most in-kind giving. Under 26 U.S.C. § 170(e)(3), businesses that donate apparently wholesome food inventory to a qualified charity can claim an enhanced deduction. The PATH Act of 2015 made the enhanced deduction permanent and extended it beyond C corporations to sole proprietors, S corporations, partnerships, and LLCs.⁸

Instead of deducting only what the food cost you, the enhanced formula lets you deduct your cost basis plus half the difference between fair market value and cost, capped at twice your cost basis.⁷ Say a dish costs you $4 to make and sells on the menu for $12. The markup is $8, half of that is $4, and $4 plus your $4 cost gives you an $8 deduction — right at the twice-basis ceiling. For very high-margin items, the twice-basis cap is what limits the deduction.

The annual ceiling on food donation deductions is 15 percent of aggregate net income from all trades or businesses for non-C corporations, or 15 percent of taxable income for C corporations.⁷ For a typical restaurant, that cap is loose enough that routine donations won’t bump against it.

Fair Market Value

The IRS wants fair market value based on what you actually sell the same or substantially similar items for at the time of donation. You cannot discount the value just because the food went unsold.⁹ If chicken parmesan sells for $18 on your menu and you donate ten portions, the fair market value is $18 per portion.

Records and Forms

If the difference between your enhanced deduction and the cost you would otherwise write off exceeds $500, you file Form 8283 with your return. Section A covers $500 to $5,000; Section B applies above $5,000.¹⁰

You also need a written acknowledgment from the receiving nonprofit. For food inventory, the acknowledgment must state that the food will be used only to care for the ill, the needy, or infants, that this use relates to the nonprofit’s exempt purpose, and that the food will not be resold.⁹ Most food banks provide this documentation as part of their intake process. On your side, keep a log of each donation’s date, food type and quantity, cost basis, and fair market value. You won’t submit these records with your return, but you’ll need them if the IRS asks.

Some states offer their own tax credits on top of the federal deduction, with rules that vary widely by state and by the type of business or food. Your state tax agency can tell you whether one applies.

State and Local Rules to Check

Federal law sets the floor, not the ceiling. Local health departments regulate food safety on the ground and may require donated prepared food to carry the donor’s name, preparation date, and an ingredient list flagging major allergens. Call yours before you start.

Allergen disclosure deserves its own note. Federal packaged-food labeling rules that require identifying the nine major allergens generally don’t apply to food wrapped at the point of purchase, which exempts most restaurant to-go packaging.¹¹ Even so, most recovery partners expect a label with the preparation date, an ingredient list, and allergen callouts, and providing one protects everyone involved.

A growing number of states also have mandatory food waste diversion laws that reach commercial food generators. Some target businesses producing a set tonnage of food waste per week; others phase in requirements by business category. Where these laws apply, keeping surplus out of the landfill through donation or composting can be a legal obligation, not just a good idea, and noncompliance carries fines.

Setting Up a Program

Getting started is less complex than it looks. Four steps cover it.

Map your surplus. Walk through a typical week and note where excess builds up: overproduction, catering overruns, ordering errors, unserved trays. That’s your donation pool.
Find a partner. Call your local food bank or use a food recovery platform to find a nonprofit that will pick up on a regular schedule. Put the pickup days, food types, and contacts in a written agreement.
Train the team. Assign one person to own the program. Write a short standard operating procedure covering what’s eligible, where donations go before pickup, how to cool and repackage, and how to log each one.
Keep records. Track the date, food type, quantity, cost basis, and fair market value for every donation. Those records satisfy IRS documentation for the deduction and help you and your partner tune the program over time.

Most food banks will build a pickup schedule around your operation, whether that’s a daily commercial route or a weekly collection, and most will hand you the written acknowledgment your tax return needs. Ask about their documentation process when you set up the partnership, and you’ll have both halves of the arrangement — the legal shield and the tax paperwork — squared away from the first donation.

1
Office of the Law Revision Counsel. 42 USC 1791 – Bill Emerson Good Samaritan Food Donation Act
2
USDA. Frequently Asked Questions About the Bill Emerson Good Samaritan Food Donation Act
3
USDA Food Safety and Inspection Service. Food Product Dating
4
eCFR. 21 CFR Part 106 – Infant Formula Requirements
5
Food and Drug Administration. FDA Retail Food Store Data Collection Form
6
FDA. Cooling Cooked Time/Temperature Control for Safety Foods and the FDA Food Code
7
Office of the Law Revision Counsel. 26 USC 170 – Charitable, Etc., Contributions and Gifts
8
Senate Finance Committee. Summary of the Protecting Americans from Tax Hikes (PATH) Act of 2015
9
Internal Revenue Service. Publication 526, Charitable Contributions
10
Internal Revenue Service. Instructions for Form 8283
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U.S. Food and Drug Administration. Food Allergies