H. B. 3325
(By Delegates J. Miller, Duke and Overington)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §55-7D-2 and §55-7D-3 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated §55-7D-3a, all
relating to limiting liability for persons donating and
charitable organizations accepting certain food and grocery
items.
Be it enacted by the Legislature of West Virginia:
That §55-7D-2 and §55-7D-3 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto a new section, designated §55-7D-3a, all to read
as follows:
ARTICLE 7D. GOOD SAMARITAN FOOD DONATION ACT.
§55-7D-2. Definitions.
As used in this section:
(a) "Apparently fit grocery product" means a grocery product that meets all quality and labeling standards imposed by federal,
state and local laws and regulations even though the product may
not be readily marketable due to appearance, age, freshness, grade,
size, surplus or other conditions.
(b) "Apparently wholesome food" means food that meets all
quality and labeling standards imposed by federal, state and local
laws and regulations even though the food may not be readily
marketable due to appearance, age, freshness, grade, size, surplus
or other conditions.
(c) "Donate" means to give without requiring anything of
monetary value from the recipient, except that the term includes
donations by one nonprofit organization to another nonprofit
organization, notwithstanding that the donor organization has
charged a nominal fee to the donee organization, if the ultimate
recipient or user is not required to give anything of monetary
value.
(d) "Food"
or "food item" means any raw, cooked, processed or
prepared edible substance, ice, beverage or ingredient used or
intended for use, in whole or in part, for human consumption.
(e) "Gleaner" means a person who harvests a donated
agricultural crop for free distribution to the needy or for
donation to a nonprofit organization for ultimate distribution to
the needy.
(f) "Grocery product" means a nonfood grocery product, including disposable paper or plastic products, household cleaning
supplies, laundry detergent or other household item.
(g) "Gross negligence" means voluntary and conscious conduct,
including a failure to act, by a person who, at the time of the
conduct, knew that the conduct was likely to be harmful to the
health or well-being of another person.
(h) "Individually packaged food item" means any food item
packaged in a single serving unit, which is purchased in quantity
and intended for individual distribution or consumption. The
single serving unit must meet all federal, state and local laws
regarding quality standards even though the item may not be
readily marketable due to appearance, age, freshness, grade, size,
surplus or other conditions. Any food item meeting this definition
does not have to meet federal, state and local laws regarding
labeling, so long as the main packaging container meets such laws,
or the information required to comply with any labeling laws is
readily ascertainable.
(h) (i) "Intentional misconduct" means conduct by a person
with knowledge, at the time of the conduct, that the conduct is
harmful to the health or well-being of another person.
(j) "Main packaging container" means any container that
contains any quantity of individually packaged food items, and has
printed on, or included with the container, all information
required to comply with federal, state and local laws regarding labeling.
(i) (k) "Nonprofit organization" means an incorporated or
unincorporated entity that:
(1) Is operating for religious, charitable or educational
purposes; and
(2) Does not provide net earnings to or operate in any other
manner that inures to the benefit of, any officer, employee or
shareholder of the entity.
(l) "Perishable food item" means any food or food item that
must be sold or consumed by a specific date to ensure quality or
safety, and includes any food or food item that requires storage
at or below a certain temperature to guarantee freshness edibility
or safe consumption.
(j) (m) "Person" means an individual, corporation,
partnership, organization, association or governmental entity,
including a retail grocer, wholesaler, hotel, motel, manufacturer,
restaurant, caterer, farmer, nonprofit food distributor or
hospital. In the case of a corporation, partnership, organization,
association or governmental entity, the term includes an officer,
director, partner, deacon, trustee, council member or other elected
or appointed individual responsible for the governance of the
entity.
(n) "Prepared food" means any food item intended for buffet
or self-service style public consumption, which is preserved, prepared and served according to any and all state and local laws,
rules and regulations.
(o) "Produce item" means any fruit, vegetable or other
cultivated item that meets all quality and labeling standards
imposed by federal, state and local laws and regulations even
though the item may not be readily marketable due to appearance,
age freshness, grade, size, surplus or other conditions.
§55-7D-3. Limiting liability of persons or corporations who donate
food or grocery products; exceptions.
(a) A person or gleaner is not subject to civil liability or
criminal liability arising from the nature, age, packaging or
condition of apparently wholesome food or an apparently fit grocery
product which the person or gleaner donates in good faith to a
nonprofit organization for ultimate distribution without profit or
gain to needy individuals:
Provided, That this limitation on
liability does not apply to an injury to or the death of an
ultimate user or recipient of the food or grocery product which
results from an act or omission of the person or gleaner which
constitutes gross negligence or intentional misconduct.
(b) A nonprofit organization is not subject to civil liability
or criminal liability arising from the nature, age, packaging or
condition of apparently wholesome food or an apparently fit grocery
product which the nonprofit organization received as a donation in
good faith from a person or gleaner for ultimate distribution without profit or gain to needy individuals:
Provided, That this
limitation on liability does not apply to an injury to or the death
of an ultimate user or recipient of the food or grocery product
which results from an act or omission of the nonprofit organization
which constitutes gross negligence or intentional misconduct.
(c) A person shall not be subject to civil or criminal
liability arising from the nature, age, packaging or condition of
a food item when the person donates the food item in good faith to
a nonprofit organization for ultimate distribution without profit
or gain to needy individuals when the person donates the following
food items:
(1) Any individually packaged food item that is unopened or
of unaffected package integrity. Any information printed on, or
included with the individually packaged item's main packaging
container which is intended to comply with labeling standards
imposed by federal, state and local laws shall be replicated in
writing and given by the donor to the donee at the time of
donation. Providing the donee with the original main packaging
container shall meet the requirements of this subdivision;
(2) Any produce item in edible condition and still of its
original integrity. The donor shall provide in writing to the donee
at the time of donation the following information:
(A) The date of purchase or delivery;
(B) The expiration or use-by date if available; and
(C) Any information printed on, or included with, the produce
item's original main packaging container intended to comply with
labeling standards imposed by federal state or local laws.
(3) Any perishable food item which has not surpassed the food
item's expiration or use-by date, is otherwise donatable under
this article, and has been stored or preserved in accordance with
federal, state and local laws and regulations. If the perishable
food item's packaging does not comply with labeling standards
imposed by federal, state or local laws, the donor shall provide
in writing to the donee at the time of donation the following
information:
(A) The date of purchase or delivery;
(B) The expiration or use-by date; and
(C) Any information printed on, or included with, the
perishable food item's original main packaging container intended
to comply with labeling standards imposed by federal, state or
local laws.
(d) A nonprofit organization is not subject to civil or
criminal liability arising from the nature age packaging or
condition of a food item when the organization accepts a donated
food item listed under subsection (c) in good faith for the
ultimate distribution without profit or gain to needy individuals.
The nonprofit organization shall require the submission of any
written information mandated under subsection (c) as a condition precedent to a good faith donation.
(e) A person making a donation, or a nonprofit organization
accepting a donation, is not subject to civil or criminal liability
resulting from erroneous information provided or collected under
subsections (c) or (d) as long as the information was provided or
collected in good faith.
(f) The limitation on liability in subsections (c), (d) or
(e) does not apply to an injury or death of an ultimate user or
recipient of any food item which results from an act or omission
which constitutes gross negligence or intentional misconduct.
§55-7D-3a. Limitation of liability for persons who donate prepared
food, exceptions.
(a) A person is not subject to civil or criminal liability
arising from the nature, age, packaging or condition of a prepared
food item when the person donates the prepared food item in good
faith to a nonprofit organization for ultimate distribution without
profit or gain to needy individuals when the prepared food
donation meets the following requirements:
(1) The donor's preparation, storage, and presentation for
consumption complies with all state and local food safety laws;
(2) State and local food safety laws allow for the removal,
storage and redistribution of the prepared food;
(3) The donor removes the food from public consumption and
transfers it to the donee within six hours. A good faith effort is made to preserve and maintain the prepared food's quality,
edibility and safety before and during its' transport from the
donor to the donee;
(4) The donee preserves and prepares the food in accordance
with all state and local food safety laws;
(5) The donee distributes, and the prepared food is consumed,
within forty-eight hours after receiving the donated prepared
food; and
(6) The donee's distribution for consumption of the prepared
food within fifty-four hours after being removed from public
consumption by the donor does not violate any state or local food
safety laws or regulations.
(b) A nonprofit organization is not subject to civil or
criminal liability arising from the nature, age, packaging or
condition of a prepared food item when the organization accepts a
donated prepared food in good faith for the ultimate distribution
without profit or gain to needy individuals; and the prepared food
donation meets the conditions outlined in subsection (a).
(c) The limitation on liability in subsections (a)and (b)
does not apply to an injury or death of an ultimate user or
recipient of any prepared food item which results from an act or
omission which constitutes gross negligence or intentional
misconduct.
NOTE: The purpose of this bill is to exempt persons and
nonprofit organizations from civil and criminal liability when
donating or receiving certain food items. The bill does not exempt
liability for gross negligence or intentional misconduct.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.