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Bill H.3154
SECTION 1. Chapter 63 of the General Laws is hereby amended by inserting after section 38NN the following section:-
Section 38OO. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:
“Food business”, any entity located in the commonwealth that is engaged in the business of farming as defined under section 1A of chapter 128 or meets the definition of a restaurant under section 1 of chapter 138 or meets the definition of a food department or food store as both are defined under section 184B of chapter 94.
“Nonprofit food distribution organization”, means an entity located in the commonwealth that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code, as amended or renumbered, and organized with a principal purpose of providing food to the needy or selling food at a charge sufficient only to cover the cost of handling such food.
(b) A food business that donates food, meals or crops grown, manufactured, packaged or prepared by the food business in the commonwealth to a nonprofit food distribution organization shall be allowed a non-refundable credit from its net taxable income for the taxable year of the donation. The credit shall be equal to the fair market value of the food, meals or crops donated by the business during the taxable year but not to exceed an aggregate credit of $25,000 annually.
(c) A credit shall be allowed under this section only if the donated food, meals or crops are distributed or served by the donee nonprofit food distribution organization without charge or at a charge sufficient only to cover the cost of handling such food; and are not (i) transferred for use outside the commonwealth; (ii) used by the donee nonprofit food distribution organization as consideration for services performed or personal property purchased; or (iii) sold by the donee nonprofit food distribution organization at a charge in excess of
the organization’s cost of handling the food, meals or crops.
(d) In order to claim any credit under this section, the donor business shall attach to the business’s income tax return a written certification prepared by the donee nonprofit food distribution organization. The written certification prepared by the donee organization shall identify the donee nonprofit food distribution organization, the business donating food, the date of the donation, the number of pounds of food donated and the fair market value of the food donated. The certification shall also include a statement by the donee nonprofit food distribution organization that its use and disposition of the food complies with the requirements under this section.
(e) The commissioner shall promulgate regulations necessary for the implementation, administration and enforcement of this section.
SECTION 2. Chapter 94 of the General Laws is hereby amended by striking section 328 and inserting in place thereof the following section:-
Section 328. (a) No person or any entity engaged in the business of farming as defined under section 1A of chapter 128 or restaurant as defined under section 1 of chapter 138 or food department or food store as both are defined under section 184B of chapter 94, who donates food, including open-dated food whose date has passed, but not including alcoholic beverages, marijuana products or dietary supplements, to either: (i) a nonprofit corporation for distribution or serving by such nonprofit corporation without charge or at a charge sufficient only to cover the cost of handling such food, or; (ii) any other person for consumption by that person, shall be liable for civil damages for any injury arising out of the condition of such food.
(b) No nonprofit corporation which distributes or serves food donated pursuant to this section without charge or at a charge sufficient only to cover the cost of handling such food, including open-dated food whose date has passed, shall be liable for civil damages for any injury arising out of the condition of such food. No food department or food store, as both are defined in section 184B of chapter 94, which distributes or serves food, not including alcoholic beverages, marijuana products or dietary supplements, without charge or at a charge sufficient only to cover the cost of handling such food, including open-dated food whose date has passed, shall be liable for civil damages for any injury arising out of the condition of such food. Any such nonprofit corporation, food department or food store distributing or serving food under this section must remain in compliance with all inspection or permit requirements of the department of public health and the board of health in the city or town where the food is distributed or served. No fee shall be required for any permit needed solely for the distribution or service of food pursuant to this section.
(c) No license shall be required for the preparation of food in private homes for donation to a nonprofit corporation for distribution or serving by such corporation without charge.
(d) This section shall not apply if the donated, distributed or served food: (i) is misbranded or adulterated; (ii) was manufactured, processed, prepared, handled or stored in violation of regulations of the department of public health; or (iii) causes an injury arising out of the food’s condition that is the result of gross negligence, recklessness or intentional misconduct of the donating, distributing or serving person or entity or any person employed by or under the control of the same.
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