The legal landscape in regard to food waste continues to expand dramatically, and food-producing entities across the country feel the impact.

“Regulations can be really effective in terms of dramatically reducing food waste and managing landfill overflow, even above and beyond incentives and the potential for cost reductions,” says Emily Broad Leib, professor at Harvard Law School. She also serves as director of the university’s Food Law and Policy Clinic (FLPC), which conducts research and works directly with businesses, nonprofits and state agencies to provide legal advice and conduct policy analyses and publish reports. “To me, [new policies and law] is really exciting because they lead to more transformative change across multiple industries. They are an effective way to change practices and pressure businesses to be more forward-thinking.”

EBL bw headshot“As these bans seem to be proliferating, we’re seeing more states interested in learning about all the tools out there.” ­—Emily Broad Leib, Harvard Law School professor and director of the Food Law and Policy Clinic

Landfill bans, the farm bill and emissions regulations are a few areas with growing legal requirements.

Landfill Bans

Commercial food waste bans imposed by some city and state governments mean restaurants and other foodservice operators can no longer send their food and organic waste to landfills. The bans require operators to separate food waste from their garbage stream under certain circumstances.

According to Leib, larger businesses seem to be the initial targets, since chains and other major generators of food waste typically have their own waste hauling trucks and pickup routes. That approach makes it easier to track the origin of the waste and enforce these regulations, she notes.

In addition, some policies allow for a phase-in approach, which means the impact will hit smaller generators of food waste further down the line. For example, two years ago the city of Austin, Texas, required facilities larger than 15,000 square feet to have an organics diversion program in place. By the following year, that same rule applied to food businesses 5,000 square feet or larger, and as of October this year, all businesses will fall under the landfill diversion law.

In addition to phase-in programs, most cities and states with landfill bans offer comprehensive guidance to businesses in the form of reports and other content on websites and other channels. In some cases, there is also guidance available for haulers of commercial food waste.

This month, FLPC plans to publish a toolkit to further help businesses in states with landfill bans understand ways to divert organics from their garbage streams. Acceptable diversion methods may include food waste reduction, food donation, composting, dehydration, pulping, disposing/wastewater treatment and transferring food waste or slurry to anaerobic digester (AD) systems. Fats and oils can be rendered/transferred to processors for biofuel and feed for farm animals.

“As these bans seem to be proliferating, we’re seeing more states interested in learning about all the tools out there,” says Leib.

Food businesses and operators can also use the Environmental Protection Agency’s Excess Food Opportunities Map, an interactive map that identifies and displays facility-specific information about potential generators and recipients of excess food in the industrial, commercial and institutional sectors. The tool also provides estimates of excess food by generator type.

Insights on State Regulations

Landfill bans are common in New England. Four states — Massachusetts, Connecticut, Rhode Island, and Vermont — have enforced diversion laws since 2014.

In October 2014, the Massachusetts Department of Environmental Protection (MassDEP) banned the disposal of commercial organic wastes by businesses and institutions that dispose of one ton or more of these materials per week in an effort to divert at least 35 percent of all statewide food waste from landfills by 2020.

Currently, the EPA and MassDEP estimate that food waste accounts for more than 25 percent (more than 1 million tons) of the state’s waste stream. There are currently about 30 permitted composting and anaerobic digestion operations accepting food materials in Massachusetts, with a combined permitted capacity to accept nearly 150,000 tons of organic material per year. However, this is just one method of diversion. The state has supported the development of other methods, including funding composting facilities through targeted grants and loans, and working with haulers to determine more efficient means of collecting food waste from major generators.

Connecticut has enforced a landfill ban similar to Massachusetts since 2014. It prohibits generators that produce 104 or more tons per year (2 tons per week) of organic waste and located within 20 miles of permitted recycling facilities from sending waste to a landfill and instead requires them to ensure that the organic material is recycled. In January 2020, the threshold will lower to affect businesses in Connecticut that produce 52 tons per year. In Vermont that same year, all businesses and residents will fall under the ban.

To put this in perspective, the RecyclingWorks Massachusetts’ food waste estimation calculators show the following facilities produce about one ton of food waste per week: a college/university with 734 students living on campus; a K-12 school with about 1,770 students; a hotel with 286 guests per day; an assisted living or hospital facility serving about 3,334 meals weekly; a corporate cafeteria serving about 3,200 meals weekly; and a correctional facility housing 286 inmates. On the restaurant side, full-service restaurants serving about 2,000 weekly meals and limited-service restaurants serving about 4,000 weekly meals also each produce about a ton of food waste per week.

A food waste ban in Rhode Island went into effect in January 2016 and impacts businesses that produce more than two tons of organic waste. Alternatively, businesses are allowed to process the organic waste on-site or divert it for agricultural use, such as composting or animal feed. The ban states that “a waiver may be requested by the institution if the tipping fees of the compost or AD facility within the institution’s fifteen-mile radius would cost the institution more than the price of having the waste taken by the RI Resource Recovery Corporation at its going rate for non-contract commercial waste.”

Since July 2016, the New York City Commercial Organics Law took effect, impacting all foodservice establishments in hotels with 150 or more rooms as well as all foodservice vendors in arenas and stadiums with seating capacity of at least 15,000 people. The ban also impacts food manufacturers with a floor area of at least 25,000 square feet and food wholesalers with a floor area of at least 20,000 square feet. According to the NYC government, failure to comply with this law for any covered establishment could result in a fine of $250, up to $1,000 or more for subsequent violations.

California has required businesses to recycle their organic waste, depending on volume, since April 2016. “This law phases in the mandatory recycling of commercial organics over time, while also offering an exemption process for rural counties,” the California Department of Resources Recycling and Recovery (CalRecycle) said in a statement. “In particular, the minimum threshold of organic waste generation by businesses decreases over time, which means an increasingly greater proportion of the commercial sector will be required to comply.”

The initial law implemented in April 2016 affected businesses that generate eight cubic yards of organic waste per week. As of January 2017, this law now affects producers of four cubic yards of organic waste per week. On Jan. 1, 2019, businesses that generate four cubic yards or more of commercial solid waste per week will need to arrange for organic waste recycling services.

After the receipt of the 2019 annual reports, CalRecycle will conduct a formal review of all jurisdictions. In 2020, if CalRecycle determines that the statewide disposal of organic waste has not been reduced by 50 percent from the baseline 2014 levels, the organic recycling requirements on businesses will expand to cover businesses that generate two cubic yards or more of commercial solid waste per week. Additionally, certain exemptions may no longer be available if this target is not met.

The city of San Francisco goes above and beyond the state law, requiring proper separation of recyclables, trash and compostables for all generators of food waste.

Seattle has a similarly strict rule. The city’s 2015 ordinance prohibits all food waste from garbage streams for both residential and commercial disposal. Fees may apply if more than 10 percent of businesses’ garbage contains food waste, food-soiled paper, or other items that could have been composted or recycled. The ordinance also requires businesses to either compost their organic waste on-site, self-haul, or pay for a food waste service.

Also on the West Coast, as of April 2014 in Portland, Ore., “food scrap-generating businesses shall separate all food scraps from mixed waste and set out for collection (e.g. compost, animal feed, or where possible, human consumption),” according to city law. “BPS (Bureau of Planning and Sustainability) shall determine which businesses are subject to this requirement based on estimates of the amount of food scraps generated. To be in compliance with the recycling requirements, a business shall not have any recycling in their mixed waste and, if applicable, no food scraps. If these conditions are not met, the BPS will be responsible for implementing the following best management practices. BPS may also establish supplemental best management practices for businesses to implement as needed to come into compliance or if a business wishes to further improve recycling and waste prevention.”

Farm Bill

One may think the farm bill would have zero impact on foodservice operations, but quite the contrary.

In fact, the FLPC published “Opportunities to Reduce Food Waste” in the 2018 Farm Bill last year with this in mind, outlining ways to incorporate food waste measures into legislation. Separate House and Senate versions passed earlier this summer, but a conference committee will need to work on consolidating those drafts into one bill for a future vote. That date is unknown, Leib says.

Some of the FLPC suggestions were included, while others were left out, such as guidance around standardizing expiration date labeling and creating an Office of Food Waste Reduction within the federal government. Still, there’s room for these additions during the time the bill remains out to committee.

One might wonder, why would FLPC and other interested parties address food waste issues in the farm bill? “The last farm bill in 2014 called for a half trillion [dollars] of mandated spending on food production and food stamps over the course of five years, but it did not address ways to divert food waste from landfills, Leib says. “As both the USDA and the EPA have shown interest in supporting food waste reduction, the farm bill seems to be the best vehicle right now for getting money to the states to help build programs and systems dedicated to that effort.”

One positive step toward food waste reduction included in the bill: According to the FLPC, the first draft of the Senate’s version of the farm bill allocated $10 million per year for The Emergency Food Assistance Program (TEFAP) to support projects “harvesting, processing, or packaging” donated agricultural commodities. States can use this funding for projects that reduce the waste of agricultural products through donation, provide food to food-insecure individuals, and create new partnerships to distribute food to those in need. This program made it into the final Senate bill, but with funding of only $4 million.

The Senate’s draft version of the farm bill also included $25 million per year for pilot projects in at least ten states to support the development of local composting and food waste reduction efforts. It also called for a study to evaluate the available methods to measure food waste, standards for food waste volume, and factors that cause food waste, and includes a list of additional topic areas for the USDA to study, such as the cost and volume of food loss of domestic and imported fresh food products.

The Senate farm bill also includes strategies for reducing on-farm food waste, but in regard to foodservice operations specifically, the bill provides some clarity around liability protections for food donation and allows for food donation directly from certain donors to individuals. According to the FLPC, this amendment is based on a portion of the Food Donation Act introduced earlier this year, which instructs the USDA to provide guidance as to liability protections for “qualified direct donors,” such as retail food stores and restaurants with food safety certification and licensing when donating surplus food to those in need.

This is huge; if the bill passes, restaurants and other foodservice operators can have a bigger hand in sending excess food to food recovery programs intended to feed Americans in need.

For many, it’s a dream that is coming true: more legislatures on the city, state and federal levels coming together in a bipartisan fashion to address food waste on a more aggressive plan with a clear path. While many issues (e.g., climate change) continue to pose incredible controversy, the problems of food waste and food insecurity in this country, it seems, can no longer be ignored.