Food Recovery Questions and Answers

CalRecycle has compiled frequently asked questions (FAQ) about the edible food recovery requirements of California’s Short-Lived Climate Pollutant (SLCP) Reduction Strategy. To submit a new question, please email: slcp.organics@calrecycle.ca.gov.

New FAQs

Q: If a commercial edible food generator holds a national Feeding America contract, is that considered compliant?

Not fully. A commercial edible food generator is required to have a contract or written agreement with a food recovery organization or service. Per the SB 1383 regulations Section 18982(a),

(25)“Food recovery organization” means an entity that engages in the collection or receipt of edible food from commercial edible food generators and distributes that edible food to the public for food recovery either directly or through other entities including, but not limited to:

(A) A food bank as defined in Section 113783 of the Health and Safety Code;
(B) A nonprofit charitable organization as defined in Section 113841 of the Health and Safety code; and,
(C) A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code.

(26)“Food recovery service” means a person or entity that collects and transports edible food from a commercial edible food generator to a food recovery organization or other entities for food recovery.

Therefore, having only the national contract with Feeding America does not meet the regulatory requirements, since it is the local Feeding America member food banks or their partner agencies who are performing the actual collection or acceptance of edible food. These local entities must be identified somehow, either in an addendum to the existing contract, or in an additional contract or written agreement.

Q: How should it be verified that a commercial edible food generator is donating their “maximum amount of edible food” if inspectors do not have food safety expertise?

Inspection of commercial edible food generators’ required recordkeeping will aid in determining that the maximum amount of edible food is being recovered. Section 18991.4(a)(3)(D) of the regulations requires commercial edible food generators to keep records of the quantity of food collected or self-hauled for recovery.

The inspector should review the commercial edible food generator’s records.

    • If the business has too few donations that do not seem to align with the size of their operations, then this could be a red flag, e.g., a grocery store that has only a few donations of loaves of bread.
    • If there is something that is interpreted as a red flag upon inspection of a commercial edible food generator, the inspector could talk to the business to better understand the circumstance and also consult, as needed, with their local environmental health department who has knowledge of the food safety requirements.

The generator is responsible for understanding the food safety requirements of the California Retail Food Code and applying that knowledge to donate the maximum amount of their edible food that would otherwise be disposed. Section 18991.3(e) of the SB 1383 regulations prohibits generators from intentionally spoiling edible food that could be safely recovered. The generator may need to be educated about the types of edible food that they could be recovering.

Q: Can surplus food from food trucks at large events be donated? How can large events that primarily host food trucks comply with SB 1383 requirements?

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.

Q: What are the jurisdictions’ responsibilities regarding the edible food recovery requirements for local education agencies and non-local entities?

Although CalRecycle has enforcement authority over local education agencies and non-local entities, Section 18995.1(a)(2) of the SB 1383 regulations specifies that jurisdictions must inspect their tier one and tier two commercial edible food generators:

(a) On or before January 1, 2022, a jurisdiction shall have an inspection and enforcement program that is designed to ensure overall compliance with this chapter and that, at a minimum, includes the following requirements:

(2) Beginning January 1, 2022, conduct inspections of Tier One commercial edible food generators and food recovery organizations and services for compliance with this chapter. Beginning January 1, 2024, conduct inspections of Tier Two commercial edible food generators for compliance with Article 10 of this chapter.

Jurisdictions are also required to provide non-local entities and local education agencies with edible food recovery education and outreach pursuant to Section 18985.2 of the regulations.

If a jurisdiction finds that a local education agency or non-local entity is non-compliant with the edible food recovery requirements, they can notify CalRecycle through the Recycling Services and Edible Food Collection Complaints portal. It will be helpful to notify your Local Assistance contact of the complaint as well. You can find your CalRecycle Local Contact for the appropriate jurisdiction through the Contacts Search tool.

Q: Should a jurisdiction’s number of local education agencies only include school districts and not the individual schools?

Yes, the school district is the local education agency and therefore the commercial edible food generator. The school district should be ensuring that their individual school sites are in compliance with the edible food recovery requirements. The school district is the entity that should hold copies of contracts/written agreements and recovery records and will need to be inspected, although there is nothing in the regulations that prohibits a jurisdiction from also inspecting other school facilities such as individual schools or production kitchens.

Q: Are schools allowed to donate food provided to them for free by the United States Department of Agriculture’s (USDA’s) Child Nutrition Programs?

Yes. US Code Chapter 13, Section 1758(l)(1) states, “Each school and local educational agency participating in the school lunch program under this chapter may donate any food not consumed under such program to eligible local food banks or charitable organizations.”

For additional information, please see this bulletin originally posted by California Department of Education. Note that the Child Nutrition Program is now managed by California Department of Social Services.

Edible Food Recovery Goal

Q: Please clarify the 20 percent edible food recovery goal. Do individual jurisdictions or individual generators have to arrange for 20 percent of their edible food to be recovered for human consumption?

SB 1383 requires the state, by 2025, to recover 20 percent of edible food for human consumption that would otherwise be disposed. This is a statewide goal that California must collectively achieve. It is not a goal for individual jurisdictions to achieve. To achieve this statewide goal, SB 1383’s regulations require commercial edible food generators donate the maximum amount of their edible food that would otherwise be disposed (not 20 percent of it). The regulations also require jurisdictions to implement edible food recovery programs to help increase food recovery throughout the state.

Q: Does all edible food have to be recovered for human consumption, even if it is currently sent to compost or animal feed?

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.

Q: How will the calculation for the baseline of edible food be determined? Will the baseline year be 2014?

The 2014 baseline year only applies to SB 1383’s organic waste disposal reduction targets. A baseline year is not specified in SB 1383’s statute for edible food recovery.

CalRecycle’s 2018 statewide waste characterization studies will be used to help measure the edible food baseline for SB 1383. CalRecycle’s 2018 disposal-based and generator- based waste characterization studies sorted food waste into eight categories based on the edibility of the food that was disposed. The eight food waste categories were defined in a manner that will allow CalRecycle to quantify the amount of edible food (food intended for human consumption) that is disposed, and the amount of potentially donatable food (edible food that could have potentially been recovered for human consumption) that is disposed.

Edible Food Recovery Regulation Sections to Review

Q: Where can I find the edible food recovery requirements in the regulations? Note – if there is ever a term in the regulations that is unclear, please refer back to the definitions section to see how the term is defined.

The definition of “edible food” can be found in Article 1, Section 18982 Definitions on page 53.

The commercial edible food generators (mandated food donors) that will be required to donate the maximum amount of their edible food are specified in Article 1, Section 18982 Definitions on page 58 under ‘Tier One Commercial Edible Food Generator’ and ‘Tier Two Commercial Edible Food Generator.’

  • Edible Food Recovery Education and Outreach: Article 4, Section 18985.2 (pgs. 77-78)
  • Edible Food Recovery Standards and Policies: Article 9, Section 18990.2 (pg. 85)

Jurisdiction Edible Food Recovery Programs, Food Generators, and Food Recovery: Article 10 (pgs. 85-88)

  • Edible Food Recovery Capacity: Article 11, Section 18992.2 (pgs. 91-92)
  • Jurisdiction Annual Reporting: Article 13, Section 18994.2, Subsection (h) only. (pg. 99, lines 7-19 only)

Definitions

Q: Does edible food have to meet all food safety requirements for it to be recovered for human consumption?

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.

Q: Please clarify the term “on-site food facility.”

The term “on-site food facility” is only used in the thresholds for the following tier two commercial edible food generators: local education agencies, hotels, and health facilities. The regulations specify that “food facility” has the same meaning as in Section 113789 of the California Health and Safety Code. As found in California Retail Food Code excerpt from the California Health and Safety Code, Article 2, Section 113789: “Food facility” means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level, including, but not limited to, the following:

  1. An operation where food is consumed on or off the premises, regardless of whether there is a charge for the food.
  2. Any place used in conjunction with the operations described in this subdivision, including, but not limited to, storage facilities for food-related utensils, equipment, and materials.

“Food facility” includes permanent and nonpermanent food facilities, including, but not limited to, the following:

  1. Public and private school cafeterias
  2. Restricted food service facilities
  3. Licensed health care facilities, except as provided in paragraph (12) of subdivision (c).
  4. Commissaries
  5. Mobile food facilities
  6. Mobile support units
  7. Temporary food facilities
  8. Vending Machines
  9. Certified farmers’ markets, for purposes of permitting and enforcement pursuant to Section 114370.
  10. Farm stands, for purposes of permitting and enforcement pursuant to Section 114375.
  11. Fishermen’s markets
  12. Microenterprise home kitchen operations
  13. Catering operation
  14. Host facility

For additional information on the entities that ‘food facility’ does not include, please refer to Section 113789 subdivision (c) of the California Retail Food Code.

CalRecycle also provided information in the Final Statement of Purpose and Necessity to help clarify the term “food facility” beyond the definition that is provided in the California Health and Safety Code.

Q: Is a privately owned business within a grocery store part of the definition of a ‘grocery store?’ If they are not a part of the definition, are those businesses subject to the commercial edible food generator requirements?

If a privately owned business within a grocery store meets any of the commercial edible food generator definitions and their associated thresholds, then the business would be required to comply with the commercial edible food generator requirements specified in Section 18991.3 of the regulations. If the privately owned business does not independently meet the commercial edible food generator definitions or thresholds, it is not subject to the commercial edible food generator requirements of SB 1383.

Q: Please clarify the definition of ‘restaurant,’ as it is not clear what the threshold is for “primarily engaged” fast-food businesses with both sit-down and take-out orders.

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.

Jurisdictions

Q: Can a jurisdiction contract with their local environmental health department to fulfill some or all the jurisdiction edible food recovery program requirements such as educating commercial edible food generators and monitoring commercial edible food generator compliance?

Yes. Section 18981.2 of the regulations specifies that a jurisdiction may designate a public or private entity, which includes county environmental health departments, to fulfill its regulatory responsibilities. The regulatory text states,

“(b) A jurisdiction may designate a public or private entity to fulfill its responsibilities under this chapter. A designation shall be made through any one or more of the following:

(1) Contracts with haulers or other private entities; or,
(2) Agreements such as MOUs with other jurisdictions, entities, regional agencies as defined in Public Resources Code Section 40181, or other government entities, including environmental health departments.

(c) Notwithstanding Subdivision (b) of this section, a jurisdiction shall remain ultimately responsible for compliance with the requirements of this chapter.

(d) Nothing in this chapter authorizes a jurisdiction to delegate its authority to impose civil penalties, or to maintain an action to impose civil penalties, to a private entity.”

Please note however, if a jurisdiction does designate a separate entity to fulfill any requirements, the jurisdiction shall remain ultimately responsible for compliance with the requirements of this chapter.

Q: Are inspections of food recovery organizations and food recovery services limited to the recordkeeping requirements in Article 10?

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.

Q: Will CalRecycle be providing a methodology for estimating the amount of edible food disposed by commercial edible food generators?

CalRecycle will develop a tool to assist jurisdictions with estimating the amount of edible food that will be disposed by commercial edible food generators that are located within the county and jurisdictions within the county.

Please note that this requirement does not require estimates to be exact or absent of uncertainty. Rather it requires that each estimate is defensible and conducted in compliance with the requirements of the edible food recovery capacity planning section of the regulations.

Q: Provide guidance on how to determine if a commercial edible food generator has “intentionally” allowed food to spoil, thereby preventing it from being recovered.

One example of intentionally spoiling edible food could be if a commercial edible food generator placed edible food that could be recovered for human consumption into a dumpster and then poured bleach or some other substance over the edible food to render it inedible. There are examples of businesses practicing this kind of activity to prevent individuals from taking food from dumpsters and consuming it. Since some commercial edible food generators do intentionally spoil edible food that could be recovered for human consumption, CalRecycle added language to section 18991.3(e) stating that “An edible food generator shall not intentionally spoil edible food that is capable of being recovered by a food recovery organization or service.”

Q: Please clarify the entity subject to enforcement action if a county is unable to determine organic waste/edible food capacity needed.

If a county fails to provide the estimates that are required by Article 11, then the county could be subject to enforcement action. If a jurisdiction or regional agency fails to provide the county with the information necessary to comply with the Article within 120 days, then the county is not required to include estimates for that jurisdiction in the report it submits pursuant to Section 18992.3. If a jurisdiction fails to comply with its requirements under Article 11, then the jurisdiction could be subject to enforcement action.

Q: Are jurisdictions required to educate all food facilities or only the tier one and tier two commercial edible food generators?

Jurisdictions are not required to provide education and outreach to all food facilities or food businesses. Jurisdictions are only required to educate tier one and tier two commercial edible food generators (including non-local entity and local education agency commercial edible food generators). However, if a jurisdiction would like to provide education and outreach to all food facilities or businesses in addition to commercial edible food generators, then they may do so.

Q: Are jurisdictions required to provide education to non-local entities and local education agencies?

Although jurisdictions will not enforce non-local entities or local education agencies, jurisdictions are still required to provide non-local entities and local education agencies with edible food recovery education and outreach pursuant to Section 18985.2 of the regulations.

Q: The need for an inspection of commercial edible food generators is duplicative of inspections already required for food safety requirements.

Section 18981.2 specifies that a jurisdiction may designate a public or private entity, which could potentially include county environmental health departments, to fulfill its regulatory responsibilities. If a jurisdiction designated their environmental health department to monitor commercial edible food generator compliance, then the inspections would not be duplicative. Rather the local environmental health department could add to their existing food facility inspections to verify that commercial edible food generators are maintaining records.

In addition, if a jurisdiction designated their environmental health department to monitor commercial edible food generator compliance, then health inspectors could also provide guidance to commercial edible food generators about safe surplus food donation best practices and food safety requirements. Please note that SB 1383 does not include food safety requirements. Food safety requirements are established in the California Health and Safety Code and enforced by environmental and public health departments.

Q: What if a chain supermarket or grocery store does not keep its records for that individual store on site?

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.

Q: With regard to edible food recovery capacity planning, please clarify what “verifiably available” means. Would a jurisdiction report on an edible food recovery service or organization’s ability to collect food?

The amount of capacity “verifiably available” to the county and cities within the county, was intended to address the amount of capacity that the jurisdiction has verified exists and is available for use. Jurisdictions are required to report to counties and counties are required to report to CalRecycle.

Q: Provide guidance on how to determine if a grocery store or restaurant meets the square footage thresholds. Clarification is needed as to whether this is gross or net square footage (e.g. does it include storage areas, restrooms, etc.).

CalRecycle revised the threshold for grocery stores from 7,500 square feet to 10,000 square feet. This change was made in an effort to have the threshold align with environmental health inspections of grocery stores, so that these commercial edible food generators can be more easily identified by the jurisdiction through their local environmental health department’s food facility permit records. The same methodology could be used to help identify restaurants that meet the 250 or more seats or total facility size equal to or greater than 5,000 square feet threshold.

The precise language used in the regulations is a “grocery store with a total facility size equal to or greater than 10,000 square feet.” This includes storage areas and restrooms. The same is true for restaurants. Restaurants with 250 or more seats or a total facility size equal to or greater than 5,000 square feet are required to comply with the commercial edible food generator requirements.

Q: Can a jurisdiction provide a link to Feeding America’s MealConnect to fulfill their requirement to maintain a list of food recovery organizations and services?

No, linking to MealConnect would not fulfill the regulatory requirements because doing so would not meet the full requirements of maintaining a list of local food recovery organizations and services. Per Section 18985.2, the jurisdiction is required to maintain a list of food recovery organizations and services operating within the jurisdiction on their jurisdiction website, with at least the following information:

  • Name and physical address.
  • Contact information.
  • Collection service area.
  • An indication of types of food the food recovery service or organization can accept for food recovery.

Providing a list of food recovery organizations and services is a major component of a jurisdiction’s education and outreach requirements, and the purpose of that list is to help commercial edible food generators effectively connect with food recovery organizations and services to make the jurisdiction’s edible food recovery program successful.

If a food recovery organization or service uses MealConnect to coordinate donation logistics, then it may be included on the jurisdiction’s website as part of the contact information for that specific food recovery organization or service.

Q: How can a jurisdiction verify compliance if a commercial edible generator backhauls its excess edible food to its distribution center for food recovery to take place from there?

If a business is backhauling food to a distribution center for recovery activities, then that distribution center, which is also a tier one commercial edible food generator, should be providing donation records (either electronic or hard copies) to their individual stores, to keep on-site. Records should indicate how much edible food was recovered from each store site, because during an inspection by the local jurisdiction, each store site should have the records that are specific for their location. These records may be electronic, as long as they are accessible for inspections to indicate that the edible food from the commercial edible food generator is being recovered.

Similarly, the individual stores should maintain a copy of the contract held by their distribution center to demonstrate compliance. The contract on-site may be a hard copy or an electronic version. A best management practice for these contracts would be to list each store location that the distribution center receives food from and the food recovery organization or food recovery service that is collecting from the distribution center, to clearly demonstrate that each store is participating in edible food recovery. Please refer to 14 CCR Section 18991.4 for the recordkeeping information that must be maintained by commercial edible food generators.

Food Recovery Organizations and Food Recovery Services

Q: Are food recovery organizations and food recovery services required to enter into contracts or written agreements with commercial edible food generators?

No. Nothing in SB 1383’s regulations requires a food recovery organization or a food recovery service to establish a contract or written agreement with a commercial edible food generator.

Q: Are food recovery organizations required to accept a commercial edible food generator’s edible food?

No. Food recovery organizations and food recovery services are not required to accept a commercial edible food generator’s edible food. Section 18990.2 of the regulations specifies that, “(d) Nothing in this chapter prohibits an edible food recovery service or organization from refusing to accept edible food from a generator.”

Q: Do SB 1383’s food recovery requirements differentiate between healthy foods eligible for donation, and “junk” food that do not meet the minimum nutrition standards for many food pantries and food banks?

SB 1383’s statute requires CalRecycle to adopt regulations that include requirements intended to meet the goal that not less than 20 percent of edible food that is currently disposed of is recovered for human consumption by 2025. The statute does not state that 20 percent of healthy or nutritious food must be recovered. As a result, SB 1383’s regulations do not include requirements that differentiate between healthy and unhealthy food. CalRecycle recognizes that a core value of many food recovery organizations and services is to reduce food insecurity in their communities by rescuing and distributing healthy and nutritious food to help feed people in need, and that some organizations have nutrition standards for the food they are willing to accept. As a result, CalRecycle included language in Section 18990.2 that states, “(d) Nothing in this chapter prohibits an edible food recovery service or organization from refusing to accept edible food from a generator.”

Q: Do food recovery organizations need to be formally registered as non-profits? Would a group of people that recovers food (without being formally incorporated) be included in that definition? What about for-profit organizations?

Food recovery organizations do not need to be registered as non-profits. A for-profit business could also be a food recovery organization. Recognizing that many different types of food recovery organizations exist, a broad definition of food recovery organization was developed to ensure that the definition would be inclusive of these non-traditional food recovery groups. The definition of “food recovery organization” is below:

(25) “Food recovery organization” means an entity that engages in the collection or receipt of edible food from commercial edible food generators and distributes that edible food to the public for food recovery either directly or through other entities, including, but not limited to:

(A) A food bank as defined in Section 113783 of the Health and Safety Code;
(B) A nonprofit charitable organization as defined in Section 113841 of the Health and Safety code; and,
(C) A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code.

Q: Are food recovery organizations and services required to report to multiple jurisdictions or only one jurisdiction?

Only food recovery organizations and food recovery services that contract with or have written agreements with commercial edible food generators pursuant to Section 18991.3 (b) are required to report information to the jurisdiction. Specifically, they are required to report to one jurisdiction the total pounds collected (from commercial edible food generators) in the previous calendar year. They should report to the jurisdiction where their primary address is physically located. They are not required to report to multiple jurisdictions.

For example, if a food recovery organization is recovering food in multiple jurisdictions, the food recovery organization is only required to report the total pounds collected (from commercial edible food generators) in the previous calendar year to the jurisdiction that they are physically located in.

Q: What if double counting of pounds recovered occurs since food recovery organizations and food recovery services are both reporting recovery numbers?

The regulations are structured to ensure that double counting of pounds recovered will not occur. Double counting should not occur because the requirement is for food recovery organizations and food recovery services to only report the pounds they collect or receive directly from commercial edible food generators.

For example, if a food recovery service collects food directly from a commercial edible food generator, then the food recovery service is responsible for maintaining a record of those pounds collected and also responsible for reporting those pounds to one jurisdiction (the jurisdiction the food recovery service’s primary address is physically located).

If a food recovery organization receives food from a food recovery service, that food recovery organization is not responsible for reporting those pounds of food to the jurisdiction because the food was not collected or received directly from a commercial edible food generator.

Q: Are food recovery organizations and services required to separate out jurisdiction- specific data for recordkeeping and reporting?

No. Food recovery organizations and services that contract with or have written agreements with commercial edible food generators shall report the total pounds of edible food recovered (from commercial edible food generators) in the previous calendar year to one jurisdiction (that is the jurisdiction where the organization’s or service’s primary address is physically located).

Q: Are food recovery organizations and services only required to report the total pounds collected from commercial edible food generators only, or the pounds collected from all food donors?

Any food recovery organization or food recovery service that has a contract or written agreement with one or more commercial edible food generators is required to report the total pounds of edible food that were collected or received directly from the commercial edible food generators that they contract with or have written agreements with. Food recovery organizations and services are not required to report the pounds of edible food recovered from entities that are not commercial edible food generators, nor are they required to track or report residual food waste, as such a requirement could be overly burdensome and infeasible to comply with.

Food recovery organizations and services should have the data on pounds recovered from tier one and tier two commercial edible food generators because Section 18991.5 requires them to maintain a record of the quantity in pounds of edible food collected and received from each commercial edible food generator that they contract with or have a written agreement with pursuant to Section 18991.3(b). If food recovery organizations and food recovery services are in compliance with this section, then they will have the information that is necessary to comply with the requirement to report the total pounds collected from tier one and tier two commercial edible food generators in the previous calendar year to the jurisdiction.

Q: Are food recovery organizations and services required to track and report residual food waste as a result of food recovery activities?

Food recovery organizations and food recovery services are not required to track or report the pounds of residual food waste associated with food recovery activities. They are required to track and report the total pounds of edible food recovered (from commercial edible food generators) in the previous calendar year to the jurisdiction that the organization or service is physically located in.

Q: Do the SB 1383 regulations allow recovery organizations to negotiate contracts and charge commercial edible food generators for their recovery costs?

This question falls outside of CalRecycle’s regulatory purview. Nothing in SB 1383’s regulations would prohibit a food recovery organization or a food recovery service from developing a sustainable funding model to help cover their costs.

Q: Are food recovery organizations and services required to report individual food donor’s names to the jurisdiction?

There is no requirement in SB 1383’s regulations for food recovery organizations or food recovery services to report donor names. They are only required to report total pounds collected in the previous calendar year from the commercial edible food generators that they contract with or have written agreements with pursuant to Section 18991.3 (b). Reporting the total pounds collected is critical for measuring progress and to help jurisdictions and CalRecycle identify if more capacity building needs to occur.

Q: Do the regulations address donation dumping?

CalRecycle recognizes that donation dumping occurs and included policies in the regulations to help prevent this activity. The regulations require commercial edible food generators to have a contract or written agreement with a food recovery organization or service. If a food recovery organization or service is concerned that donation dumping could occur, then they should include language in their contract or written agreement to protect themselves against donation dumping. If a commercial edible food generator repeatedly donation dumps, there is nothing in SB 1383’s regulations prohibiting a food recovery organization or food recovery service from terminating their relationship with that particular generator.

CalRecycle developed a model food recovery agreement that can be customized and used by food recovery organizations, food recovery services, and commercial edible food generators. The model food recovery agreement does include a section for self-hauled edible food, which also includes designated delivery and drop off days and times to establish as well as language to protect food recovery organizations and services from donation dumping and unexpected donations. The model food recovery agreement is a template and is intended to be customized based on the needs of food recovery entities and commercial edible food generators.

Q: Do existing contracts between local food banks and commercial edible food generators (such as grocery retailer or wholesalers) comply with the SB 1383 contract/written agreement regulatory requirements for their partner agencies not listed in these contracts?

In most cases, local governments will review food recovery contracts as proof of compliance that commercial edible food generators have arrangements in place for the collection of edible food. The contracts will not be reviewed for legal sufficiency.

The regulations allow a food bank to use a partner agency to collect edible food on behalf of the food bank. Although not a regulatory requirement, CalRecycle recommends that the local food bank include a list of partner agencies in its agreements with commercial edible food generators. This best business practice would ensure that commercial edible food generators are maintaining records consistent with the requirements in SB 1383 and would alert these businesses as to whom is working on behalf of the food bank. Jurisdictions may also find a list of partner agencies helpful.

For more information about the applicable regulations see 14 CCR Sections 18991.3–18991.4.

Q: Will food banks be able to submit annual donation reports to local jurisdictions on behalf of their partner agencies?

Yes, if food banks work with partner agencies and the partner agencies are acting on their behalf to collect edible food, the food bank should compile the appropriate information from those partner agencies and provide that data to the jurisdiction that the partner agency is located in, or have the partner agency directly report their total pounds of edible food recovered to their jurisdiction in which it is located.

Also, if a partner agency is acting independently from a food bank’s control or direction and has a direct contract or written agreement with a commercial edible food generator, the partner agency should separately report to the jurisdiction in which the partner agency is located all edible food recovery that occurs as a result of that independent and direct contract.

Please note that even if donation totals are submitted by food banks on behalf of their partner agencies, each partner agency food recovery organization or service will need access to their food donation records for inspection purposes by the jurisdiction in which it is located.

For more information about the applicable regulations, please refer to 14 CCR Section 18994.2(h)(2)(A).

Q: Will Commercial Edible Food Generators be permitted to use the donation reports that food banks and/or Feeding America provide to them? Food banks would like to confirm that food generators are able to use the records we send on a monthly basis, rather than generators having to come up with a scan-out or weighing process of their own.

Yes, Commercial Edible Food Generators can use these reports for their recordkeeping, if they contain all the information required by 14 CCR Section 18991.4 , which includes:

  1. A list of each food recovery service or organization that collects or receives its edible food pursuant to a contract or written agreement established under Section 18991.3(b).
  2. A copy of contracts or written agreements between the commercial edible food generator and a food recovery service or organization.
  3. A record of the following for each food recovery organization or service that the commercial edible food generator has a contract or written agreement with pursuant to Section 18991.3(b):
    • (A) The name, address and contact information of the service or organization.
    • (B) The types of food that will be collected by or self-hauled to the service or organization.
    • (C) The established frequency that food will be collected or self-hauled.
    • (D) The quantity of food collected or self-hauled to a service or organization for food recovery. The quantity shall be measured in pounds recovered per month

Generators must also keep records of any food donated to other organizations or services not included in those reports.

For more information about the applicable regulations, please refer to 14 CCR Section 18991.4 .

Commercial Edible Food Generators

Q: Are commercial edible food generators able to donate their edible food to clients, co-workers, or even take them home themselves? Or are they required to donate it to a food recovery organization?

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.

Q: Would an arrangement for food recovery that is not a contract or written agreement be acceptable for compliance?

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.

Q: Clarify and expand on what “extraordinary circumstances” are in Section 18991.3(d)(1)-(2).

The regulations specifically state “extraordinary circumstances are: (1) A failure by the jurisdiction to increase edible food recovery capacity as required by Section 18992.2.; and (2) Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters. Please note, “other emergencies” could, under certain circumstances, include planned safety power shut offs to prevent wildfires and business closures due to disease pandemics.

Q: Will Schools with vending machines be required to comply?

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.

Q: Are commercial edible food generators required to report information to the jurisdiction?

No. Per the SB 1383 regulations, commercial edible food generators are not required to report information to the jurisdiction. However, commercial edible food generators are required to comply with recordkeeping requirements, and jurisdictions can request to see a generator’s records to verify that the generator is in compliance with SB 1383’s commercial edible food generator requirements. Jurisdictions may also implement edible food recovery programs with more stringent requirements that require commercial edible food generators to report to their jurisdiction.

Q: Are food sales at large events and venues that are not a part of the venue’s direct concession services exempt from the food donation requirements? Examples include food trucks located in/at large venues and events, nonregulated food vendors, and persons serving food outside of the event or venue (such as tailgating).

Food vendors operating at large events and venues are not exempt from the edible food recovery regulations. Large event and venue operators must make arrangements to ensure that the food vendors operating at their event or venue are recovering the maximum amount of their edible food that would otherwise be disposed. In a situation where the food vendors at a large venue or event are not in compliance with Section 18991.3 of the regulations, the operator of the large event or venue would be responsible for compliance. SB 1383 does not regulate the activities of tailgaters.

Q: Will commercial edible food generators be penalized if local food recovery organizations or services do not have the capacity to accept the edible food that the business generates?

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.

Q: Do commercial edible food generators need contracts or written agreements with each individual food recovery organization or service they donate to (aside from general contracts that also include partner agencies)?

No. If recovery activities by partner agencies are coordinated through a food recovery organization, e.g., a food bank, then a single contract is sufficient. In this situation, a recommended best business practice is to list all of the partner agencies in the contract. However, if a commercial edible food generator donates to any additional food recovery organizations or services, they will need to establish a contract or written agreement with those agencies as well.

Q: If a school district contracts with a food service provider, who is responsible for the recovery of excess edible food?

If a food service provider distributes food to a school district, for school sites to then distribute to individuals, the school district would be responsible for the recovery of any excess edible food as a tier two commercial edible food generator. The food service provider (a tier one generator) would also be responsible for the recovery of any edible food that is generated by its own food preparation operations.

If a food service provider employs their own staff to prepare and/or provide food on a district’s school campuses, then the food service provider is responsible for the recovery of any excess edible food generated, in addition to the recovery of edible food from its offsite preparation of food. The school district would still have the responsibility to recover any other excess edible food generated outside of that food service provider’s own operations.

Q: Can a commercial edible food generator that provides services on a college campus donate to the campus food pantry to fulfill its edible food recovery requirements?

Yes, an on-campus food pantry is an allowable food recovery organization to work with. If both Dining Services and the food-pantries/programs on campus are run by the same entities (e.g., both run by the University of California), then a contract or written agreement between the two entities is not necessary, but a contract or written agreement would be needed with commercial edible food generators not run by that same entity (e.g., off-campus donors or a food service provider, such as a restaurant not owned by the campus, whose staff serve the food on-campus).

Please note that if the food pantry does not collect or receive food from any defined commercial edible food generators (either on-campus or off-campus), and is solely focused on food distribution, then they are not considered a food recovery organization or service per the SB 1383 regulations.

Q: If a commercial edible food generator does not generate any excess edible food, or enough to meet minimum thresholds required by food recovery organizations and services that they have access to, do they still need to establish a contract or written agreement with a food recovery organization or service?

If a commercial edible food generator does not generate any excess edible food to recover, then the burden of proof is on them to prove that during any SB 1383 inspections performed at their facility. There is no exemption for a commercial edible food generator from the food recovery requirements. However, only edible food that would otherwise be disposed must be recovered. If a commercial edible food generator does not have any edible food that would otherwise be disposed, CalRecycle would not require jurisdictions to enforce the requirement to have a contract or written agreement. However, the jurisdiction should still include this generator in its annual inspections of commercial edible food generators to confirm that no edible food is being disposed.

If a commercial edible food generator is unable to establish a contract in certain areas due to minimum requirements, please refer to Section 18991.3(d) of the SB 1383 regulations (emphasis added):

  • A commercial edible food generator shall comply with the requirements of this section unless the commercial edible food generator demonstrates the existence of extraordinary circumstances beyond its control that make such compliance impracticable. If an enforcement action is commenced against a commercial edible food generator for noncompliance, the burden of proof shall be upon the commercial edible food generator to demonstrate extraordinary circumstances. For the purposes of this section extraordinary circumstances are:
    • A failure by the jurisdiction to increase edible food recovery capacity as required in Section 18991.1.
    • Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters.

This guidance tool was developed by CalRecycle as a courtesy for informational and example purposes only. Use of this tool is optional and is not a regulatory requirement. In the event of any conflict with this guidance tool or information herein, applicable statutory and regulatory provisions shall control. This tool and information herein are based on known facts and legal authority as understood by CalRecycle at the time of release. Any analysis, guidance, or other information herein may be subject to change based on changed facts or legal authority, actual or understood, subsequent to the publishing of this tool. The provision of this guidance tool and any analysis, guidance, or other information herein shall not be construed as a waiver of any rights or remedies available to CalRecycle. Users are encouraged to seek the assistance of legal counsel to comply with applicable state law based on their pertinent facts and circumstances.  CalRecycle makes no representation that use of this tool will ensure compliance with regulatory requirements. The user assumes all risk and CalRecycle accepts no responsibility or liability to any person because of the use of, or reliance upon, this tool or the information herein.

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For more information contact: Short-Lived Climate Pollutants (SLCP), Organic Waste Methane Emissions Reductions, SLCP.organics@calrecycle.ca.gov