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Notice 26-06 - Donated Products Questions and Answers
Labeling Questions and Answers on Donated Products
Q. What type of product can be
A. Any meat, poultry, or egg product that is safe, wholesome, and
capable of use as human food can be donated. In addition, products that are misbranded or
economically adulterated but are otherwise safe, wholesome, and capable of use as human
food can also be donated. The Meat and Poultry Products Inspection Acts permit the
donation of products to non-profit organizations (e.g., food banks, charitable institutions,
child welfare facilities) (see section 403(a)(5)(A) of Federal Meat Inspection Act (FMIA)
and section 20(a)(5)(A) of the Poultry Products Inspection Act (PPIA).
Q. What are some types of organizations that
may receive donated products?
A. Products can be donated to charitable institutions, food banks, and
government-supported facilities, such as correctional facilities, child welfare facilities,
homes for senior populations, institutions for the physically or mentally ill, or similar
Q. Can an establishment donate product that is found to be adulterated to non-profit organizations as a means of disposing of the product?
A. No, except when the product is found to be economically adulterated
under section 1(m)(8) of the FMIA or section 4(g)(8) of the PPIA (see Question that follows), an
establishment cannot dispose of product found to be adulterated by donating it to non-profit
organizations. Product found to be adulterated must, as set out in 9 CFR 318.2. have all
official inspection legends and markings removed and be condemned and disposed of in accordance
with 9 CFR 314 and 381.95.
Q. What are "economically adulterated" products? Can they be donated to non-profit organizations?
A. "Economically adulterated" products, to paraphrase the
FMIA and PPIA, are products from which any valuable constituent in whole or in part has been
omitted or removed, or in which any less valuable substance has been substituted. Products
into which any substance is added, mixed, or which are packed, in a way that misrepresents
their weight or bulk, or that makes them appear to be of greater value, are also considered to
be economically adulterated. These products may be donated for use by non-profit organizations
provided the establishment donating them fully discloses to the recipient the nature of the
economic adulteration, provides a complete listing of the ingredients that are actually in the
product, submits and secures approval of the temporary label from FSIS' Labeling and Consumer
Protection Staff, and transfers the product to the recipient under controlled circumstances.
Q. From where does the authority come to allow
establishments to donate misbranded products to non-profit organizations in lieu of other dispositions?
A. Section 403(a)(5)(A) of the FMIA states:
"An article that is condemned under paragraph (1) may as the court may direct, after
entry of the decree, be distributed without charge to non-profit, private entities or to
federal, state, or local government entities engaged in the distribution of food without
charge to individuals, if such article-
(i) has been inspected under this Act and found to be wholesome and not to be adulterated
within the meaning of the paragraphs (1) through (7) and (9) of section 1 (m) and a
determination is made at the time of the entry of the decree that such article is wholesome
and not so adulterated; and (ii) is plainly marked "Not for Sale" on such article
or its container."
There is parallel language in the PPIA.
The above quoted section of the FMIA speaks directly to the disposition of products detained
in commerce. However, the Agency has also deemed that it is appropriate to allow the donation
to non-profit organizations, products found at establishments to be misbranded or mislabeled
when the establishments decide that donation is the best means of product disposition.
Q. Can an establishment donate product that is
found to be misbranded or mislabeled in some way to non-profit entities such as food banks, or soup
A. Yes, if an establishment produces product that is found to be
misbranded or mislabeled in some way, it may dispose of it by donating it to a non-profit
organization, provided it has been found wholesome and not to be adulterated (except if
economically adulterated) within the meanings of either the FMIA or PPIA. In addition, the
products' immediate containers must be plainly marked "Not for Sale." Such labeling and
supporting documentation must be submitted to the Labeling and Consumer Protection Staff for
a temporary approval.
Q. Can a retail store donate meat or poultry
products processed at retail to a non-profit organization for service in meals to needy consumers?
A. Yes, retail stores can donate meat or poultry products to
non-profit organizations' food service operations, provided the products are wholesome
and not adulterated.
Q. Can non-profit organizations charge a fee
to consumers for the meals served that they produce with meat or poultry processed at retail and
donated by retail stores?
A. Yes, non-profit organizations may use meat or poultry products
processed at retail stores to produce and serve meals and charge for those meals. However,
such transactions are subject to limitations in accordance with the FMIA and PPIA. When a
non-profit organization's food service operation charges for meals served, it is in essence
operating as a restaurant. Restaurants are defined in 9 CFR 303.1 as establishments where:
The donation to non-profits of meat and poultry products processed at retail stores for sale
for a nominal fee at soup kitchens and the like is by regulation a sale for resale. The
transaction is considered in the same way as a sale by a retailer to a restaurant for normal
sales is. 9 CFR 303.1(d)(2)(iii) requires that at least 75 percent of the dollar value of
total sales of a retail store be to household consumers, and that the total dollar amount not
exceed the dollar limitation set by FSIS each year. Therefore, in order to maintain its
exemption from inspection, a retail store that donates products to a non-profit that will
prepare meals for sale from the products (even for a nominal fee) must ensure that its
"sales," including the value of the donated meat and poultry, do not exceed the
limits set out by regulation or be subject to inspection.
- Product is prepared only for sale or service in meals or entrees directly to individual
consumers at such establishment;
- Only federal or state inspected product or product prepared at a retail store exempted
from inspection under 9 CFR 303.1(d)(2)(iii) is used in the preparation of the meals;
- No sale of product is made in excess of normal retail quantities; and
- The preparation of product is limited to traditional and usual operations conducted
Q. Can a non-profit organization charge a fee to
consumers for the meals served that it produced with meat or poultry donated by retail stores or other
businesses, if the products bear a mark of inspection?
A. Yes, if the donated meat or poultry products have been produced
under state or federal inspection, they may be used by non-profit food service organizations
in the preparation of meals for which the organization charges a fee provided the products are
wholesome and not adulterated. However, products produced under a given state inspection
program may only move in commerce within that state or be donated for use within that state.
Q. Can custom exempt product be donated?
A. No, custom exempt product may only go back to the individual for
which the product is being slaughtered or processed.
Q. Can experimental products be donated?
A. No, experimental products are not permitted to be donated since
they are not inspected and do not bear the mark of inspection.
Q. Can sample products be donated?
A. Yes, sample products are made for general public consumption and
are to be produced and labeled in accordance with the meat and poultry products inspection
Labeling Questions and Answers on Donated Products
Q. What are the labeling requirements for
product donated by an establishment to a charitable organization if the product is misbranded or
A. Products must bear a statement of limited use, such as "For
Charity - Not For Sale," stamped on shipping containers and individual packages within
shipping containers. Such labeling is required to ensure that the products leaving the
Federal establishment are accurately and truthfully labeled according to Federal meat and
Q. Why does misbranded or economically
adulterated product have to bear a "not for sale" statement?
A. There are two reasons. First, as a matter of law, it is required
by the statute. Second, the product must bear the statement of limited use, "Not-for-Sale",
to prevent economically adulterated and misbranded product from entering commerce.
Q. Does the statement "not for sale" always
have to be on donated products?
A. Products that have been inspected and passed can be freely donated and
do not require the statement "not for sale." However, if the product is economically
adulterated or misbranded, it must bear the statement "not for sale."
Q. How can product that is "economically adulterated"
due to ingredients in the product be donated?
A. Products that are "economically adulterated" because of the
addition of an inferior ingredient, or the substitution or omission of a valuable ingredient are
eligible for donation provided they are marked with a statement of limited use.
Q. Can a product bearing a label that does
not comply with Federal regulations, but is otherwise wholesome, be donated?
A. Yes, provided the company submits the label for temporary label
approval and is granted an approval per 9 CFR 317.4 or 381.132. Additionally, the immediate
container and the outside container should bear a statement of limited use that conveys the
product is not for sale; e.g., "For Charity - Not For Sale".
Q. Why is the donation option for misbranded
products something of a normal practice rather than re-labeling?
A. Establishments often elect to donate meat and poultry products
when their products are misbranded, do not meet establishment quality specifications, or are
otherwise ineligible to be offered for sale or distribution in commerce. Additionally,
product in commerce found to be misbranded but otherwise wholesome, not adulterated, and
capable of use as human food may be donated to non-profit organizations as a means of
resolving detention actions. This option offers an alternative to companies who would rather
use their resources for gaining profit while using a business deduction as a tax write-off
for the donated misbranded product.
Last Modified: April 18, 2006