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Introduced Version House Bill 2252 History

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H. B. 2252

 

         (By Delegates J. Miller and Overington)

         [Introduced January 11, 2012

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; 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.


    §55-7D-3a is new; therefore, it has been completely underscored.

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