Food Donor Guide for California SB 1383

Large event and venue operators must make arrangements to ensure that the food vendors, e.g., food trucks, operating at their event or venue are recovering the maximum amount of their edible food that would otherwise be disposed per Section 18991.3(c) of the SB 1383 Regulations.

Food trucks are classified by the California Health and Safety Code (HSC) Section 113831(a) as “mobile food facilities.”

• Mobile food facilities and mobile support units should refer to HSC Section 114305(d) for determining which foods they are unable to donate.

This Section states, “Potentially hazardous foods held at or above 135°F on a mobile food facility or mobile support unit shall be destroyed at the end of the operating day.”

• While foods from a food truck that fit this definition cannot be donated, edible food that does not fit this definition and would otherwise be disposed shall be recovered.

It may also be noted that nothing in SB 1383’s edible food recovery regulations prohibit a commercial edible food generator from giving their surplus food to clients or employees.

The California Health and Safety Code is under the authority of California Department of Public Health. Questions regarding food safety requirements may be sent to: FDBfood@cdph.ca.gov.

Yes, all excess edible food must be recovered for human consumption. SB 1383 requires CalRecycle to adopt regulations that include requirements intended to meet the goal that no less than 20 percent of edible food that is currently disposed be recovered for human consumption by 2025. Allowing for excess edible food to be sent to compost or animal feed instead of recovered for human consumption would undermine the intent of SB 1383’s edible food recovery goal.

Yes. All food that is recovered for human consumption must meet the food safety requirements of the California Retail Food Code. SB 1383’s regulations specify in the definition of ‘edible food’ that “Nothing in this chapter requires or authorizes the recovery of edible food that does not meet the food safety requirements of the California Retail Food Code.” Please note, CalRecycle does not monitor or enforce food safety. Food safety is monitored and enforced by local environmental health departments and the California Department of Public Health.

Whether the restaurant offers sit-down or take-out orders is irrelevant because fast food is prepared for ‘immediate consumption.’ A fast food business must comply with the commercial edible food generator requirements specified in Section 18991.3 of the regulations if:

• The business is primarily engaged in the retail sale of food and drinks for on-premises or immediate consumption, and
• The facility is equal to or greater than 5,000 square feet or has 250 or more seats.

Section 18991.3 specifies that a commercial edible food generator shall comply unless the commercial edible food generator can demonstrate extraordinary circumstances beyond its control that make such compliance impracticable. One of the extraordinary circumstances specified is a failure by the jurisdiction to increase edible food recovery capacity as required by Section 18992.2, Edible Food Recovery Capacity.

Therefore, if a jurisdiction has failed to increase edible food recovery capacity then commercial edible food generators located in that jurisdiction are not required to comply with the requirements of Section 18991.3 as long as they can demonstrate that the jurisdiction has failed to comply with SB 1383’s edible food recovery capacity planning requirements. However, the regulations also specify that the burden of proof shall be upon the commercial edible food generator to demonstrate extraordinary circumstances.

SB 1383 requires jurisdictions to implement edible food recovery programs, which includes the requirement that a jurisdiction shall increase edible food recovery capacity if it is determined that they do not have sufficient capacity to meet their edible food recovery needs. Jurisdictions are required to begin edible food recovery capacity planning in 2022.

To clarify, SB 1383-related inspections of food recovery organizations and food recovery services will be limited to verifying that the recordkeeping requirements of Section 18991.5 have been met. In addition, if a food recovery organization or a food recovery service fails to meet the reporting requirements of Section 18994 (h)(2)(A), then a jurisdiction could inspect the food recovery organization or food recovery service to ensure that the reporting requirements are met.

The expectation for compliance is that each store maintains its own records specific to the food recovery activities of that store, and that those records are made available to the jurisdiction upon request by the jurisdiction.

Only edible food that would otherwise be disposed must be recovered. Nothing in SB 1383’s edible food recovery regulations prohibits a commercial edible food generator from giving their surplus food to clients or employees. However, if the food would otherwise be disposed, then it must be recovered by a food recovery organization or a food recovery service.

SB 1383’s regulations require commercial edible food generators to establish a contract or written agreement with a food recovery organization or a food recovery service for food recovery. Requiring a contract or written agreement with supporting documentation of the contract or written agreement is critical to ensure that edible food is recovered in a safe, professional, and reliable manner.

Contracts and written agreements add a layer of food safety, professionalism, and reliability into food recovery and can also serve as a mechanism to help protect food recovery organizations and services from donation dumping. CalRecycle developed a model food recovery agreement that can be customized by food recovery organizations, food recovery services, and commercial edible food generators.

Although a contract or written agreement for food recovery must be established, it is at the discretion of food recovery organizations, food recovery services, and commercial edible food generators to determine the exact provisions to include in their contracts or written agreements. For example, some food recovery organizations may include provisions in their contracts to protect their operation from receiving food that they are not able or willing to accept. Other food recovery organizations or food recovery services could include cost-sharing provisions as part of their contracts or written agreements with commercial edible food generators. Nothing in SB 1383’s regulations prohibits a food recovery organization or a food recovery service from negotiating cost sharing as part of their contracts or written agreements with commercial edible food generators.

Contracts and written agreements are also critical for enforcement purposes. Jurisdictions will be able to monitor commercial edible food generator compliance by verifying that a contract or written agreement has been established. To further help jurisdictions monitor compliance, the regulations include recordkeeping requirements for commercial edible food generators and for food recovery organizations and services. A jurisdiction could use the record to verify that a commercial edible food generator has established a contract or written agreement with a food recovery organization or service by requesting to see their records.

Some vending machines, such as vending machines with temperature control units, are required to have a food facility permit and be inspected as a food facility. If a vending machine at a local education agency does meet the California Health and Safety Code definition of “food facility,” or the local education agency has any other food facility on- site, then the local education agency will be required to comply with the commercial edible food generator requirements of SB 1383 and to recover the maximum amount of edible food that would otherwise be disposed. This extends beyond donating surplus food from vending machines.