Captsone Report Schlimgen

Running head: IMPLEMENTING A FOOD RECOVERY PROGRAM
Implementing a Food Recovery Program at the
University of South Dakota
Eric Schlimgen
The University of South Dakota

IMPLEMENTING A FOOD RECOVER PROGRAM ii
Abstract
Food waste and hunger are two problems which can be resolved by one solution; instead of
filling landfills, we should be feeding people. With nearly 50 million (about one in six)
Americans currently experiencing food insecurity—a household-level economic and social
condition of limited or uncertain access to adequate food—a strong moral, economic, and
environmental argument exists for the need to capture and redistribute excess food. This report
offers implementation strategies, as well as the actual implementation of a food recovery
program at the University of South Dakota. First, this report broadly surveys relevant research
on the topic of food recovery and lays the foundation for a guiding framework to draft and
implement a food recovery program. Next, this report suggests and executes an implementation
plan that provides a step-by-step framework for implementing a sustainable, as well as legal food
recovery program. This report outlines the administrative procedures and also follows those
procedures for implementation of a food recovery program at the University of South Dakota.
The goal of this research is to aid the University of South Dakota in implementing a sustainable
student driven food recovery program that decreases food waste and increases the number of
food insecure individuals reached in the Vermillion community.
Keywords: food insecurity, food recovery, implementation, policy, university.

IMPLEMENTING A FOOD RECOVER PROGRAM iii
Professional résumé
Eric M. Schlimgen
716 East Clark Street Telephone: 605-391-9450
Vermillion, SD 57069 Eric.Schlimgen@gmail.com
Attributes:
◊ Productive and Hard-Working
◊ Zealous
◊ Open-Minded
◊ Critical Analyzer
◊ Alternative Solution Oriented
◊ Empathetic and Positive
Education:
◊ Juris Doctorate, University of South Dakota School of Law, Vermillion, SD, 2016.
◊ Master of Public Administration, University of South Dakota, Vermillion, SD, 2016.
◊ Bachelor of Arts, University of South Dakota, Vermillion SD, 2013. Double major in
Criminal Justice and Political Science.
Employment:
South Dakota Fourth Judicial Circuit Court Clerkship (2016-2017)
◊ Year-long Clerkship with the Judges of the Fourth Circuit. Position includes researching
case law, statutes, jury instructions for the Circuit and Magistrate Judges as well as
observing trials.
Bangs McCullen Law Firm, Rapid City, SD, Summer Associate (Summer 2015)
◊ Position included preparing memorandums, legal research, brief writing, arguing motions,
meeting with clients, observing interviews, depositions and other assigned tasks.
University of South Dakota Academic & Career Planning Center; Graduate Assistantship
(2013-2014 Academic year)
◊ Position included co-leading training workshops for Supplemental Instruction Leaders and
Tutors as well as on-going group training, coordinating events and organizing data.
University of South Dakota Academic & Career Planning Center; Supplemental Instructor
Introduction to Criminal Justice (2012-2013 Academic year)
◊ Facilitator of tri-weekly peer-to-peer learning sessions focusing on skills fundamental to
success within the major as well as student’s collegiate careers.
Internships:
Federal Public Defender District of South Dakota; Rapid City, SD (Summer 2011)
◊ Internship included drafting appellant arguments, memorandums of trial transcripts,
reviewing sentencing guidelines, research on open cases, field work including interviews
with investigators and shadowing of trial attorneys.
Honorable U.S. Senator John R. Thune (R-SD); Washington D.C. (Spring semester 2011)
◊ Internship consisted of correspondence work, constituent Capitol tours, memorandums for
staff, phone reception, attending conferences, data entry and demonstrating a superb
knowledge of current political issues.

IMPLEMENTING A FOOD RECOVERY PROGRAM 4
Honors & Awards:
◊ Costello Porter Annual Trust & Wills/Estate Planning Essay Winner (2015)
◊ Omicron Delta Kappa Honor Society, University of South Dakota Circle (2013)
◊ Who’s Who Amongst American Colleges and Universities (2013)
◊ Criminal Justice Faculty Appreciation Award (2013)
◊ University of South Dakota Outstanding Student Leadership Award (2013)
◊ Oneta H. Card Government Cooperation Scholarship (2012)
◊ University of South Dakota Mock Trial Advocate Award (2012)
◊ Mary B. Elden Internship Award (2011)
Service/Leadership:
University of South Dakota School of Law Moot Court Board (2014-2016)
◊ American Bar Association Moot Court Tournament, Philadelphia Pennsylvania.
◊ New York City Bar Association’s National Moot Court Competition, Region 14.
◊ Pace Law School, Jeffrey G. Miller Pace National Environmental Law Competition.
◊ University of San Diego School of Law, National Criminal Procedure Tournament.
South Dakota Commission for National and Community Service (2011-2015)
◊ Governor Daugaard appointment to allocate federal funds to nonprofits and encourages a
strong service ethic in all citizens to further strengthen the state’s nonprofit sector.
USD Law Trial Team (2016)
◊ George Washington Law & Estrella Law Firm Trial Advocacy Competition, Puerto Rico.
USD School of Law Environmental Law Society (2013-2015)
◊ Vice-President
Women In Law (2013-2015)
◊ The organization increases awareness of issues women face in the practice of law.
AWOL—Alternative Week of Off Campus Learning (2009-2013)
◊ Student led service-learning organization that facilitated Spring/Winter Break trips
focusing on a variety of social and environmental issues emphasizing the importance of
community interaction, reflection and active citizenship.
◊ President of the Executive Board. (2011-2013)
◊ Recipient of Board of Regents Community Service Organization Award. (2012)
◊ AmeriCorps Colorado Campus Compact member. (2011-2012)
◊ Site Leader-Urban poverty affordable housing immersion trip, Minneapolis, MN.
◊ Site Leader-Rural poverty service trip to Eagan, TN. (2011)
◊ Service volunteer on Pine Ridge Indian Reservation, SD. (2010)
Break Away: Alternative Break Citizenship School; Restoring Ecosystems in our National
Lands (July 2011)
◊ Site Leader for national training session focusing on fundamentals of Alternative Break
trips and service eliminating invasive plant life in Arizona’s National Parks.

Table of Contents
Abstract ............................................................................................................................................ii
Professional résumé ........................................................................................................................iii
Chapter I.......................................................................................................................................... 7
Introduction................................................................................................................................. 7
Problem Statement................................................................................................................... 7
Public Interest. ......................................................................................................................... 8
Organizational Settings.......................................................................................................... 10
Challenges and Benefits. ....................................................................................................... 13
Chapter II. ..................................................................................................................................... 14
Introduction............................................................................................................................... 14
Solutions ................................................................................................................................ 15
Law Reviews ......................................................................................................................... 16
Smart Practices ...................................................................................................................... 20
Guiding Framework............................................................................................................... 22
Chapter III..................................................................................................................................... 23
Summary of Recommendations ................................................................................................ 23
Action Steps and Timeline for Implementation—Gantt chart .................................................. 24
Communication and Leadership Strategy ................................................................................. 27
Organizational (Re)Design Issues............................................................................................. 28
Personnel Issues ........................................................................................................................ 29
Budget ....................................................................................................................................... 31
Constitutional and Legal Considerations .................................................................................. 33
Good Samaritan Food Donation Laws. ................................................................................. 33
South Dakota Food Donor Protections. ................................................................................. 33
Bill Emerson Good Samaritan Food Donation Act. .............................................................. 35
Preemption............................................................................................................................. 38
Ethical Considerations............................................................................................................... 39
The encouragement of a food recovery system relieves the government of its obligation to
care for the poor..................................................................................................................... 39
The danger of donating food outweighs the benefits of donating. ........................................ 40

Assessment Methodology ......................................................................................................... 41
Decision-making Tools/Strategies ............................................................................................ 42
Organizational Policy Process................................................................................................... 44
Chapter IV..................................................................................................................................... 45
Conclusions ............................................................................................................................... 45
References..................................................................................................................................... 48
Appendix A................................................................................................................................... 52
Appendix B ................................................................................................................................... 53
Appendix C ................................................................................................................................... 54

Chapter I.
Introduction
Some 795 million people in the world do not have enough food to lead a healthy active
life; that's about one in nine people (United Nations World Food Programme, 2015). The World
Food Summit of 1996 defined food security as “when all people at all times have access to
sufficient, safe, nutritious food to maintain a healthy and active life” (World Health
Organization, 2012). By contrasts, food-insecurity—the condition assessed in the food security
survey and represented in United States Department of Agriculture (“USDA”) food security
reports as a household-level economic and social condition of limited or uncertain access to
adequate food—is a global problem with local ramifications (Coleman-Jensen, 2015). Hunger is
an individual-level physiological condition that may result from food insecurity (Coleman-
Jensen, 2015). Re-purposing food which is traditionally disposed of by an organization and
gifting that food to a non-profit will aid in alleviating food-insecurity as well as food waste.
Problem Statement.
The Vermillion Welcome Table (“VWT”) a nonprofit 501(c)(3) is part of the umbrella
organization, Feeding Vermillion (“FV”) in Vermillion, South Dakota (Feeding Vermillion,
2014). The VWT serves 150 to 175 people weekly, the Vermillion Weekend Backpack Program
(“VWBP”) serves 205 kids weekly, and the Vermillion Food Pantry (“VFP”) fed 5,373 people in
Clay County in 2013 and 5,874 people in 2014 (Feeding Vermillion, 2014).
The multiple convenience stores on the University of South Dakota (“USD”) campus
(Retail Marketplace, Einstein Bros Bagels, University Brew, Coyote Village POD, MUC C-
Store, and Beede Bump) each Sunday night dispose of their non-spoiled baked goods (USD
Dining, 2016). The problem is the missing link between USD food entities which waste the

baked goods and delivery to FV to repurpose the food to serve as an in-kind donation, in
additional to the Monday night meals—eliminating waste while simultaneously combating food-
insecurity. While the idea is simple in conception and logistically—as the food will physically
only travel three blocks down Dakota Street—problems such as longevity, ethical concerns about
the repurposing of the food, contractual/legal barriers, and leadership on both sides of the
agreement pose potential barriers to implementation.
Public Interest.
The interest in food-security encompasses global, national and local administrations. On
the global level, the United Nations Secretary-General Ban Ki-moon introduced 17 Sustainable
Development Goals (“SDGs”) for the 2030 Agenda for Sustainable Development—adopted by
world leaders in September, 2015 at a historic UN Summit (United Nations, 2016). While the
SDGs are not legally binding, governments are expected to take ownership and establish national
frameworks for the achievement of the 17 Goals (UN, 2016). Most relevant here are goal 2 and
goal 12.
Goal 2: End hunger, achieve food security and improved nutrition and promote
sustainable agriculture is directly related to Goal 12: Reduce Consumption and Production (UN,
2016). Goal 12; Sustainable consumption and production aims at “doing more and better with
less,” increasing net welfare gains from economic activities by reducing resource use,
degradation and pollution along the whole lifecycle, while increasing quality of life (UN,
2016). This goal involves different stakeholders, including businesses, consumers, policy
makers, researchers, scientists, retailers, media, and development cooperation agencies, among
others (UN, 2016). Quantifiably, Goal 12 intends by 2030, to halve per capita global food waste
at the retail and consumer levels and reduce food losses along production and supply chains,

including post-harvest losses (UN, 2016). Goal 2 intends by 2030, to end hunger and ensure
access by all people, in particular the poor and people in vulnerable situations, including infants,
to safe, nutritious and sufficient food all year round (UN, 2016).
In the United States, 48.1 million individuals lived in food-insecure households,
including 32.8 million adults and 15.3 million children (Feeding America, 2016). In Clay
County, South Dakota, a population of 13,953, some 2,190 individuals (15.7% of the population)
is food-insecure (Feeding South Dakota, 2016). In 2015, two federal agencies—USDA and the
Environmental Protection Agency (“EPA”)—called for a 50% reduction in food waste in the
United States by 2030 and announced a partnership with charities and private sector
organizations to cut waste (Worland, 2015). The average American household of four wastes
more than two million calories of food with a value of nearly $1,500 each year (Worland, 2015).
In total, nearly a third of the food supply goes to waste (70 billion pounds); paradoxically, nearly
50 million Americans live in food insecure households (Worland, 2015; Feeding America,
2014). To reconcile the paradox, EPA Administrator Gina McCarthy in a press release stated,
“[l]et’s feed people, not landfills” (Worland, 2015).
On March 8, 2016, ReFED—collectively 30 organizations including the Natural
Resources Defense Council (“NRDC”), Deloitte and investment firm MissionPoint Partners—
offered a roadmap for the United States to reduce food waste by 20% within a decade while
creating thousands of jobs which could save consumers billions (ReFED, 2016; Worland, 2016).
The report divides food waste solutions into three categories: prevention, recovery and recycling
(ReFED, 2016). The report focuses on recovery solutions; a new method of taking food that
would otherwise be thrown away and using it for purposes before it goes bad (ReFED, 2016).

ReFED (2016) offers a new path to enable the EPA and USDA to meet their goal of reducing
food waste by 50% in 2030 (Worland, 2016).
At the community, as well as campus level, the University of South Dakota now offers a
B.A as well as B.S. in Sustainability (USD, 2016). The Sustainability program provides training
in how to understand and address complex, interdisciplinary problems and work with people
from a variety of backgrounds (USD, 2016). Faculty members actively conduct research on a
range of environmental, social and economic issues (USD, 2016). While USD has made a
commitment to sustainability, in 2011 The College Sustainability Report Card (“CSRC”) graded
USD overall at a “C” level (The College Sustainability Report Card, 2011). Most notable for
purposes of this report, USD received a “C” for food and recycling; although, the study noted:
USD purchases locally processed dairy products; buys seafood according to sustainability
guidelines; exclusively serves fair trade coffee and tea; and offered discounts for reusable mugs
(CSRC, 2011). The College Sustainability Report Card graded USD at a “C” for investment
priorities and an “F” for shareholder engagement (CSRC, 2011). Globally, nationally, within
South Dakota, and especially at the Vermillion/USD level the community has demonstrated an
interest in improving sustainability and reducing the number of food-insecure families.
Organizational Settings.
Aside from the governmental efforts to combat food-insecurity numerous organizations
all share the common initiative of ending food-insecurity. The Vermillion Welcome Table—the
501(C)(3) nonprofit within the collective Feeding Vermilion name— founded in 2001, provides
an inviting communal place where individuals join together to share food, fellowship, service,
and a sense of community (Feeding Vermillion, 2016; Struck, 2010). The idea of the VWT
stemmed from a passions retreat held at the United Methodist Church (“UMC”) in Vermillion,

South Dakota in the Fall of 2000 (Struck, 2010). One of the church members, John Lushbough,
began to think about creating a similar program in Vermillion (Struck, 2010).
From the beginning, the two main purposes of the VWT were to serve a meal and to
provide radical inclusiveness (Struck, 2010). Although serving a meal was important, as long as
there was food, everyone involved could collaborate to create a sense of community (Struck,
2010). Volunteers strived to create a welcoming atmosphere, and the wanted to demonstrate
their beliefs through their interactions with the guests (Struck, 2010). Although the VWT meets
a need for low-income individuals, the community meal is for anyone who does not want to eat
alone (Struck, 2010). To create that sense of “radical inclusiveness,” the VWT uses circular
tables that seat seven people so that everyone has the opportunity to interact with the others
around them; this setup also resembles a restaurant and not a school cafeteria (Struck, 2010).
When the VWT began operations in 2001, volunteers served a meal once a month. After
about six months, however, volunteers and board members determined that there was a greater
need and the VWT began operating every Monday evening (Struck, 2010). Serving a weekly
meal was a significant change for the VWT, but the volunteers wanted to have a greater
influence on the community (Struck, 2010).
Lushbough served as the director of the VWT until 2008, in his absence the organization
was left without an executive director (Struck, 2010). Lushbough has since returned as the
executive director (Struck, 2010). Additionally, the organization functions with a core team
consisting of local community members, UMC and UCC members—typically this group is ten to
twelve individuals not all of which are always present for the Monday night meal (Feeding
Vermillion, 2016). The core team oversees the organization and facilitation of the volunteer

group that prepares and serves the meal
(Feeding Vermillion, 2016). Most
organizations spend $200-250 on the
meal and require seven to fifteen
volunteers (Feeding Vermillion, 2016).
Important in the larger scheme of delivering food to the VWT from USD, it is noteworthy
to discuss the organization Feeding America. Feeding America works with major food
producers, manufacturers and retailers to rescue good, safe, excess food that would otherwise go
to waste and share it with food-insecure families in communities across the country (Feeding
America, 2016). Feeding America is especially relevant as they are a founding member of the
Food Waste Reduction Alliance (“FWRA”), an organization dedicated to helping enhance the
work done by members across the food industry by building awareness and sharing best practices
that help avoid the negative environmental impact of good food going to landfills (FWRA,
2016). Established in 2011, FWRA (2016) operates under the auspices of the food sector’s
leading trade associations, the Grocery Manufacturers Association (“GMA”), the Food
Marketing Institute (“FMI”), and the National Restaurant Association (“NRA”). This landmark,
cross-industry initiative includes more than 30 manufacturing, retailing and foodservice
companies, along with expert partners from the anti-hunger community and waste management
sector (FWRA, 2016).
Welcome Table Success
Volunteer
group--
rotational
Core
Team--
Constant
Executive
Director--
Constant

Aramark, a major food and food service provider for college campuses (including USD)
is also a member of the FWRA (2016). Although Aramark has made efforts to improve
sustainability on the USD campus, the link between VWT and wasted, good, useable food needs
to be bolstered. Each week Aramark employees at various USD Dining (2016) food locations—
Retail Marketplace, Einstein Bros Bagels, University Brew, Coyote Village POD, MUC C-Store,
and the Beede Bump—dispose food which should instead be distributed to VWT. Below is an
illustration of the interaction of the various organizations and forces which must interact to
complete the goal of food distribution form USD to the VWT.
Challenges and Benefits.
Although in reality the food will only travel three blocks from the Muenster University
Center at USD, to the VWT, there are a multitude of challenges, as well as benefits. The known
challenges thus far include student participation. The Student Government Association (“SGA”)
was presented a Resolution January 26, 2016 in support of instituting a food recovery program at
USD to help ensure program sustainability. Longevity and continued interest in a college
environment are difficult, as new students may value food re-use and food-insecurity less than
current students. Thus a well-defined plan clearly detailing the standard operating procedures
Vermillion
Welcome
Table
FWRA
Aramark
USD
Dining
Student Interest
Longevity
Legality
Feeding
Vermillion
FRN
AWOL
Vermillion
Welcome
Table

and providing advance notice is essential. Another challenge is to have USD as well as Aramark
agree to gift the food as an in-kind donation or alternatively surrender the food and relinquish
liability in the unlikely case that a consumer of this food became ill and brings litigation. An
ethical challenge is informing the public, VWT and VWT patrons of the origin of the food.
The benefits of this program are bountiful and significantly outweigh the named
challenges. This program will reduce food-insecurity in the Vermillion area, increase awareness
on the USD campus about the VWT, as well as food-insecurity in the community. Additionally,
it will strengthen ties between the community and USD by showing the benefit of having a
college campus in a town where occasionally there can be resident animosity towards students;
especially over Dakota Days. This program fills a void reclassifying waste to food; it is
efficiently repurposed to meet the need of a food insecure population facilitated by a well-
established community organization, the VWT and the student organization, Alternative Week of
Off-campus Learning (“AWOL”).
Chapter II.
Introduction
Food waste and hunger are two problems which one solution can resolve; instead of
filling landfills, we should be feeding people (EPA, 2015). Food waste is one of the most critical
problems facing the world today, and it is beginning to garner increased attention (EPA, 2015;
Finn, M.S., O’Donnell, T., Walls, M., 2014). The traditional view of unsold food (or food
nearing the end of its shelf life) at farms and retail establishments in the U.S. has been one of
“waste” – a seemingly necessary cost of doing business that needed to be discarded as quickly
and inexpensively as possible to avoid disruption to future operations (Finn, M.S., et al, 2014).
With nearly 50 million (about one in six) Americans currently experiencing food insecurity—

meaning they do not have access and/or the resources to enough food to support an active,
healthy life—a strong moral, economic and environmental argument exists for the need to
capture and redistribute excess food (Feeding America, 2014; Finn, M.S., et al, 2014; Haley,
2013; Sitton, 2011; Cohen, 2006). Food recovery programs are already in place which utilize the
legal protections and offer a variety of approaches on how best to combat food insecurity. The
largest college and university organization, Food Recovery Network (“FRN”), has a network of
more than 150 colleges and universities in 35 states; collectively they recover 1,000 meals a day
which would otherwise go to waste and offer guidance on best practices (FRN, 2016).
Solutions
The EPA has promulgated a Food Recovery Hierarchy which prioritizes actions
organizations can take to prevent and
divert wasted food (EPA, 2015;
Sitton, 2011; Kwon 2010; Kwon,
2009) (See Figure 1.) Most
organizations look to the EPA’s
Food Recovery Hierarchy when
implementing their individual
methods of food recovery, especially
because of the support programs the
EPA has instituted to encourage food recovery (EPA, 2015; Sitton, 2011).
While most programs adhere to the EPA (2015) Food Recovery Hierarchy, Shakman
(2013) suggests a “zero waste” hierarchy, which will (1) measure of progress based on total
waste generation, (2) the zero food waste hierarchy, and (3) recommit to the idea of zero. In my
Figure 1.

review of the literature, Shakman (2013) “zero waste” hierarchy is either not well known by
organizations or is un-adopted by organizations affiliated with food recovery and waste
management best practices.
Law Reviews
Multiple legal writers have evaluated the topic of food-recovery, their articles generally
focus on the liability aspects of donation and all discuss the Bill Emerson Food Recovery Act
(“Emerson Act”), although they do not all share the same sentiment towards the success of the
Emerson Act. With the goal of increasing corporate donations by bringing down the barriers
between willing donors and those in need, President Bill Clinton signed the Emerson Act into
law on October 1, 1996 (Cohen, 2006; Emerson Act, 1996). The Emerson Act limits liability to
those who donate apparently safe food or grocery products, except for acts of gross negligence or
intentional misconduct (Emerson Act, 1996). Although uniform in Emerson Act discussion, law
review authors differ in opinion on the most effective way to combat the fear of liability from
donations, as well as encourage additional donations.
Collectively, Kalashian (2014), Haley (2013), Van Zuiden (2012), and Cohen (2006)
argue that the Emerson Act is a step in a positive direction, but has not met its full potential of
promoting increased food donations and lowering food waste. Kalashian (2014) suggests there is
still continued food waste because liability is not the main reason food gets wasted; the leading
cause of food waste is consumers throwing away edible food as a result of confusing date labels.
Haley (2013) notes the Emerson Act remains an underutilized tool as many in the retail food
industry remain unaware of the Emerson Act and the protections that it provides donors; some
potential donors even believe it is illegal to donate food and grocery items. Van Zuiden (2012)
holds while lawmakers have successfully mitigated the civil and criminal liabilities of donating,

they have been less proactive in ensuring that donating is fiscally possible for all potential food
donors; and revision of tort liability and tax incentive are requisite to revitalize the Emerson Act.
Cohen (2006) differs in thesis and suggests the underlying purpose of the act is flawed, as
it has shifted the responsibility of providing food to hungry citizens to the private and non-
governmental sectors instead of truly tackling the problem with substantive and effective hunger
reduction programs, as well as other programs that do not relate directly to food insecurity but
affect an individual's resources and, in turn, the amount of money they have to spend on food.
As a result, food insecure individuals must rely on non-governmental assistance, such as
emergency food donation centers (Cohen, 2006).
Kalashian (2014) argues a uniform date labeling system will do a more efficient job of
stretching the life of food, therefore increasing the amount of food there is to donate, and
minimizing food waste. The lack of uniformity with the “sell by,” “use by” and “best by” dates
create confusion and account for large amounts of unnecessary waste (Kalashian, 2014; Haley,
2013; USDA, 2011). Supporting Kalashian (2014), according to a 2013 report from the Natural
Resources Defense Council (“NRDC”) and Harvard Law School’s Food Law and Policy Clinic
(“FLPC”), many Americans think their food is unsafe if the date they see on the label has already
passed (Sifferlin, 2015; NRDC, & Harvard Food Law and Policy Clinic, 2013).
Haley (2013) is less adamant that the labeling system is the weakness undercutting the
progress potential within the Emerson Act but does note that liability concerns exist as the Food
and Drug Administration (“FDA”) does not require the use of these dates for the products it
regulates; the use of these dates is the sole discretion of the manufacturer. Instead, the FDA
relies on the principle that “foods in U.S. commerce must be wholesome and fit for consumption,

thus the FDA would pursue an action against a manufacturer for a product that is dangerous to
consumers “regardless of any date printed on the label” (Haley, 2013).
However, federal regulation of date labels is so limited, states consequently have vast
discretion to regulate date labels in almost any way they see fit (Kalashian, 2014). Haley (2013)
states that although it does not exempt donors from liability from gross negligence or intentional
misconduct, the Emerson Act does not create any new liability; thus the Emerson Act already
covers the disparity of labeling. Kalashian (2014) in conjunction with the NRDC and FLPC
(2013) counter that a federal uniform date labeling system is needed with a single expiration date
that only addresses the safety of the food, as in the absence of uniform date labeling, it is
impossible to deduce dates significances (NRDC, & Harvard Food Law and Policy Clinic, 2013).
Van Zuiden (2012) is largely uninterested in the labeling component of the Emerson Act
and recognized the last decade has seen the resurgence of the idiomatic “carrot” to encourage
excess food donation. A tax deduction or credit has a likelihood of increasing an individual's or
corporation's willingness to donate but while some inroads have already been made into the
United States Tax Code, Congress could do more to close an inequality between the treatment of
larger corporate donors and smaller donors like individual farmers and ranchers (Van Zuiden,
2012). ReFED (2016), in their proposed report on how to reduce food waste by 20 percent in the
United States agrees with Van Zuiden (2012), holding that additional tax incentives are required
to encourage food donations.
Van Zuiden (2012) and Cohen (2006) agree in that the Emerson Act can be classified as a
“feel-good-law,” as opposed to legislation that appropriately addresses the issue of food waste
and food insecurity. However, opposed in conclusion Cohen (2006) argues that the government
has shifted the burden of combating food insecurity to non-profits and must do more as a

Figure 2.
government while Van Zuiden (2012) suggested that the target organizations of the Emerson Act
are correct; nevertheless
the incentive system is
lacking. The ReFED
(2016) proposal
incorporates the majority
of Kalashian (2014), Haley
(2013), Van Zuiden (2012),
and Cohen (2006),
concerns in their Food
Recovery Ecosystem (See Figure 2).
In an effort to reconcile Kalashian (2014), Haley (2013), and Van Zuiden (2012) it each
agree that the general purpose of the Emerson Act is positive but more is required to significantly
combat food insecurity. However, Cohen (2006) proffers the Emerson Act’s romantic notion of
charity is misguided as the government’s efforts shift the burden to non-profits; a fatal flaw. A
consensus for revision via Congressional amendment is shared by Kalashian (2014), Haley
(2013), Van Zuiden (2012), who agree that increased awareness of the Emerson Act, although in
varying degrees of support note that uniformity in labeling will prevent unnecessary waste
omitting current confusion and decrease liability concerns as well as uniformity in the tax
incentives offered under the Emerson Act.

Smart Practices
Multiple campuses, communities and cities have taken steps to reduce waste while
simultaneously fighting hunger by implementing a variety of food repurposing programs.
Several authorities suggest the best method is food recovery, although there is discrepancy in
how to logistically complete the transfer of food.
Tucker (2013) highlights the launch of the Food Recovery Network (“FRN”) from the
inspiration initially of eleven students at D.C. University and College campuses that started
collecting unused food from their dining halls and donating the food to food pantries and
shelters. Since its humble beginning in the D.C. area FRN (2016) has grown into the largest
student movement against food waste and hunger in America. FRN (2016) found that in 2011,
75 percent of colleges had no food recovery program and were throwing away surplus food; they
now have programs where students can spend extra meal credits as a donation1 and state it
typically takes a month or two to start a food recovery program.
Organizations mostly follow the guidance set in place by FRN. For example, Boulder
Food Rescue (“BFR”) a sustainable food organization in Boulder, Colorado, relies on citizens
and local businesses food donations (BFR, 2016). BFR (2016) members transport food via
bicycle to local shelters and food donation centers. BFR (2016), like FRN (2016) focuses on
food recovery as opposed to the Food Donation Connection (“FDC”) (2016), which is a business
that manages food donation programs for food service companies interested in donating food.
The FDC (2016) donating process is based on donors receiving economic benefit through tax
savings in addition to involvement with community and corporate goodwill. Although FDC
1 Although not discussed at any length in the project design,it is noteworthy that legislation which would allow
students at USD to spend extra “flex” monies at USD locations to directly donate to AWOL’s student organization
account where they would then write a check to Feeding Vermillion was drafted, discussed and then passed by SGA
April, 12, 2016 (See Appendix A).

(2016) aligns with Van Zuiden (2012) philosophy of encouraging donations for tax purposes, and
also furthers Cohen (2006) thesis, evidencing that a subindustry has emerged due to the void of
services provided by the government. However, FRN (2016) recognizes the economic benefits
and the tax purposes of donation but those are not the main organizational goal.
Instead of advocating for a food recovery program, Aramark (2008) proffered the
approach of introducing tray-less dinning in cafeterias. While this method addresses the peak of
the EPA (2015) Food Recovery Hierarchy, as the study showed a reduced amount of 46 pounds
per person per year of food and 288,288 gallons of water conserved, the approach failed to
address the second tier of the pyramid—feeding hungry people (Aramark, 2008). Although this
approach to energy conservation increased social awareness the conservation methods of
Aramark (2008), the food service industry must be merged with the FRN (2016) step of feeding
food insecure individuals to more effectively reduce waste while simultaneously combating
hunger. Sitton (2011) also discussed the benefits of tray-less dinning—a two-thirds waste
reduction—at the University of Tennessee, however that program utilized the waste as compost
instead of removing it to the lowest level of the EPA (2015) Food Reduction Hierarchy; landfill.
The EPA (2015) has provided incentives and support to encourage food recovery as they
recognize the institutional obstructions to implementation. The Food Recovery Challenge
(“FRC”) is an EPA (2015) incentive program where organizations—colleges and universities,
K-12 schools, grocers, hospitals, food services providers and restaurants, sports and
entertainment venues, and other organizations—are recognized for their reduction of food waste.
In 2014, 800 FRC participants prevented and diverted nearly 606,000 tons of wasted food from
entering landfills or incinerators (EPA, 2015). Of this amount, participants: prevented close to
86,000 tons of wasted food from being created through source reduction activities, donated more

than 88,500 tons of food to people in need, donated approximately 159,000 tons of food for use
as animal feed, anaerobically digested over 22,000 tons of food, and composted over
218,000 tons of food (EPA, 2015). Along with the support and guidance of the FRN (2016), the
additional incentive of the FRC, EPA (2015) program provides powerful tools to encourage and
recognize campus innovations for food waste reduction.
Guiding Framework
 Cultivate the support of the student body as well as the faculty/administration,
especially Aramark, the campus food provider.
 Foster a shift in sustainable practices in accordance with the EPA (2015) Food
Recovery Hierarchy; leading to increased momentum for the eventual
implementation of a collection of food waste not suitable for humans to be
composted locally.
 Create a sustainable system that encourages student involvement with a nonprofit
organization that has the demand for food, capacity to safely store and distribute
that food in accordance with the Emerson Act, Aramark regulations and FRN
(2016) guidelines.
 Contact the FRN (2016) to apply for membership into the Food Recovery
Network for the benefits of support, acquired knowledge and recognition so the
organization can track the amount of food waste reduction.
 Implement a protocol for collection, drop-off and distribution of the food that
comports with best practices as identified by the FRN, fits with the constraints of
FV and complies with the Emerson Act.

Chapter III.
Summary of Recommendations
The University of South Dakota should implement a student-led food recovery program.
Food recovery is the donation of wholesome food for human consumption which diverts waste
from landfills and puts food on the tables of food insecure families (USDA, 2011). The student
organization, AWOL is the organization that will be responsible for the sustained partnership
between USD and FV (AWOL, 2016). The food collected will be distributed in addition to the

meal served by the volunteer group at the WT, thus the WT now could be providing 2-3 days’
worth of meals to food insecure individuals.
AWOL (2016), is a student-led organization on the campus of USD that sends students
on service-learning trips locally, around the country, and internationally to serve communities
and learn about the issues they face. In order to encourage active citizenship, AWOL (2016)
immerses students in educational service-learning experiences through exposure to diverse social
issues and encourages post-trip application of those experiences. By utilizing experiences and
education, AWOL (2016) enables participants to become active citizens, whose community
becomes a priority in values and life choices—such as volunteering for a food recovery program.
AWOL’s service will be in-connection with the national organization, Food Recovery Network.
FRN (2016) has the resources to ensure compliance with the Emerson Act and allows USD to be
recognized as one of the 185 Chapters FRN already has established.
Action Steps and Timeline for Implementation—Gantt chart (below)
The Gantt chart serves as a framework for the interplay of the various stakeholders and
activities which occurred concurrently during implementation. The chart has been split into
categories: Identify Objectives, Research, Support (SGA), Leadership, and Implementation
which now will start Fall 2016.

Communication and Leadership Strategy
The relevant stakeholders include: Aramark at USD, USD Administration, USD
Students, FRN, FV, recipients of food at the Welcome Table and AWOL. The communal, goal
centric, interaction between all groups is requisite for successful implementation. To raise
awareness about the program communication detailing the implementation process is necessary.
SGA was presented legislation on February 11, 2016 as supporting resolutions for the
implementation of a food recovery program at USD (See Appendix B). SGA voted and passed
this resolution April 12, 2016. Additionally, the student newspaper (February 16, 2016) and
Coyote Television (February 24, 2016) ran stories bolstering student awareness and pressure on
Aramark to implement this policy.
Trust Culture Leadership Perspective assumes that follower development, team success,
and effective culture depend on trust (Fairholm & Fairholm, 2009). Values establish the
foundation for more specific operational and interpersonal work standards used by the group
(Fairholm & Fairholm, 2009). Incorporating Trust Culture Leadership into the communication
strategy for assigning a sustaining group is critical; AWOL’s (2016) core values of diversity,
education and application align with the communal aspect of the campus-to-community goal of a
food recovery program.
Although scientific management—the theory of management that analyzes and
synthesizes workflows—with the main objective as improving economic efficiency could be
useful for developing collection and data collection protocol but is not included in the
communication process of deciding what group aligns with the projects goals (Taylor, 1911).
AWOL and FV are organizations which fit the Trust Culture guidelines—the culture

environment leaders create may produce a trust situation where certain actions can produce
certain results (Fairholm & Fairholm, 2009).
Organizational (Re)DesignIssues
The initial “plan” of implementation was to have the State & Local Committee within
SGA oversee the sustained donation system as the paternal organization. After discussions with
Jamie Brocker, the New Chapter Coordinator with FRN it became apparent that the less moving
parts, the better (J. Brocker, personal communication, February 23, 2016). Brocker in
accordance with FRN protocol suggested assembling a core-team of three to seven dedicated
individuals (J. Brocker, personal communication, February 23, 2016). The prospect of starting a
new student organization which would fulfill this role in my absence next year seemed
inauspicious. After reaching out to several established student organizations—USD
Sustainability Club, Students Enhancing Resources for Vermillion Enrichment (“SERVE”) and
AWOL—AWOL proved to be the most established service-oriented organization fit for this task.
AWOL has the organizational leadership, membership and community connection which are
required to sustain this program. Although the prospect of SGA having a new student
organization each week volunteer would have increased awareness, the decrease in
accountability, increased training and increased likelihood of a missed pick-up make AWOL a
much sounder decision.
Organizational Chart (Below):

Personnel Issues
As discussed in Organizational (Re)design, pursuant to FRN (2016) protocol a core team
of three to seven dedicated individuals is required. Within AWOL’s seven person Executive
Board there is the position of Director of Community Events, this position was discussed as
potentially adopting food recovery operations but it was determined a new position, Director of
Food Recovery needed to be added to the seven person Executive Board (AWOL, 2016).
The position title: Food Recovery Director will work directly with the volunteers, FRN and FV.
Below is the position description:
AWOL
Aramark
National Campus Level
USD
Faculty
Support
Student
Support
Feeding
Vermillion
Vermillion
Welcome
Table
Food Pantry
Vermillion
Backpack
Program
Food Recovery
Network
Campus
Coordinator
Director of Food
RecoveryAWOL Executive
Board
AWOL Site-
Leaders
Trip
Participants

Primary Duties: Maintain contact with Food Recovery Network to ensure
compliance with their policies and the Bill Emerson Good Samaritan Food
Recovery Act. Collect and calculate data on number of volunteers, volunteer
hours, amount of food collected, amount of recipients of food, additional need,
and continue to develop smart practice ideas. Maintain contact with Feeding
Vermillion officials to ensure that collection and distribution of collected food
items is in accordance with protocol. Train all AWOL Site-Leaders on how to
correctly pick-up, transport, distribute and sort food donations at Feeding
Vermillion. Package the collected food safely so that Feeding Vermillion—
Welcome Table volunteers can distribute the food at the Welcome Table Monday
evenings. Schedule volunteers so each Site-Leader and 2-3 of their participants
will each week collect the food from the designated pick-up location. Attend
weekly AWOL Board meetings, remain in academic good-standing and strive
towards active-citizenship.
The Food Recovery Director will oversee 17 weeks of food recovery in the Fall
academic term and 17 weeks in the Spring academic term. Since trip participants are not
selected immediately, the first seven weeks of food collection will be mainly attributed to
the Food Recovery Director but may additionally be assigned to AWOL Executive Board
members and Site-Leaders. This is a volunteer position and will be uncompensated.
AWOL adopted by vote of the Executive Board the position of Director of Food
Recovery into their by-laws March 21, 2016 (AWOL, 2016). AWOL published the
position description in their annual Executive Board selection process (AWOL, 2016).
After reviewing the qualifications of multiple applicants and conducting interviews the
Executive Board elected sophomore, Hailey Purves as first Director of Food Recovery.
Purves has since meet with John Lushbough, Adam Chicoine of USD Dining and was
presented a binder outlining the duties of the Food Recovery Director position—
including food collection protocol.

Budget
2
2 The estimated value of volunteertime for 2014 is $23.07 per hour, according to Independent Sector, a coalition of
charities, foundations,corporations,and individuals that publishes research important to the nonprofit sector.
http://grantspace.org/tools/knowledge-base/Nonprofit-Management/Employment-Volunteering/monetary-value-of-
volunteer-time
USD Work-study wage
Wage $9.25
Collection Time 1 Hour Times 3 $27.75
Sort Time 1 Hour Times 3 $27.75
Package Time 1 Hour Times 3 $27.75
Administrative Time 2 Hours Only Director $18.50
Weekly Total $101.75
Fall Semester 17 Weeks
Spring Semester 17 weeks
Thirty Four Week Total $3,459.50
Cost of Food Donated $ 70 Per Week
Reduced FV Purchase cost $ 1,000 Annually
Aramark Tax Incentive $ 300 Annually
Reduced Waste Costs $ 1,000 Annually
Annual Total $2,300.00
Total Program Savings $8,139.50
Volunteer Wage
1
Wage $23.07
Weekly Total $253.73
Thirty Four Week Total $2,380
Annual Total $2,300

3
The “Total Program Savings” represent the opportunity costs avoided by the State, City
of Vermillion or University of South Dakota implementing the program. The FRN (2016)
additionally provides for a one-time grant ($250-$500) to purchase transportation bins for food
recovery. This grant application is included in the Director of Food Recovery binder but cannot
be submitted to FRN until a month before the first food recover is set to occur; late August,
2016. The Director of Food Recovery and Aramark have scheduled meetings over the summer
to further discuss the types of food which will be donated and will select the containers which fit
the legal requirements for safe food transportation—with the additional oversight of the FRN
(2016).
3 South Dakota Department of Labor and Regulations: Effective January 1, 2016, the minimum wage for non-tipped
employees in South Dakota is $8.55 an hour. http://dlr.sd.gov/wagehrs/minimumwage.aspx
South Dakota Minimum Wage
2
Wage $8.55
Weekly Total $94.05
Thirty Four Week Total $2,380
Annual Total $2,300

Constitutional and Legal Considerations
The implementation of a food recovery program at USD auspiciously has federal, as well
as state laws supporting food donation, which significantly decrease (and essentially eliminate)
the risk of donor, volunteer and distributer liability.
Good Samaritan Food Donation Laws.
Regrettably, many food businesses hesitate to donate excess food because of fear that
doing so will expose their enterprise to unmanageable and unnecessary risk of liability for
foodborne illnesses, allergen exposure, and other negative consequences from the ultimate
consumers of recovered food (Jacobs, 2014; Tucker, 2013; Cohen, 2006). Good Samaritan food
donation laws seek to alleviate this concern (Cohen, 2006; Morenoff, 2002). These measures
attempt to encourage donations of food by limiting the liability of food donors (Morenoff, 2002).
Although Good Samaritan food donation laws did not exist in the United States prior to the late
1970s, the movement for such measures has made great strides in the last quarter century
(Morenoff, 2002). California and Oregon were amongst the first states to introduce Good
Samaritan food donation laws, within ten years of California's adoption every state reached the
same answer to the fundamental public policy question and concluded that the social benefits of
feeding hungry people did indeed outweigh the ability of people to sue for any injury incurred in
consuming food donated to charity (Morenoff, 2002). To different degrees, these laws displace
the general rule of strict liability that all 50 states apply to distributors of defective products
when the defective aspect causes injury (Morenoff, 2002).
South Dakota Food Donor Protections.
In September 27, 1989, Roger A. Tellinghuisen, the Attorney General for the State of
South Dakota issued an Official Opinion in regard to Karen A. Johnson, Custer County State’s

Attorney question concerning county funding of nonprofit or charitable organizations for
distribution of food assistance to indigent or poor persons pursuant to SDCL ch. 28-13
(Tellinghuisen, 1989). The relevant facts include:
Custer County, under its Poor Relief Ordinance of 1986, provides food assistance
to indigent residents. Such assistance becomes a lien on the individual's property.
The Custer Food Pantry receives donations of food and money from various
churches, organizations and individuals in the community. Custer County is
considering incorporating the Custer Food Pantry into their county budget and
referring indigent individuals in need of food to the Custer Food Pantry.
(Tellinghuisen, 1989).
Custer County State’s Attorney asked four questions, question number (1) and (4) are
most pertinent; (1) May Custer County make the Custer Food Pantry part of its budget?; (4) If
Custer County may refer indigents in need of food assistance to the Custer Food Pantry, would
Custer County and Custer Food Pantry be immune from damages resulting from the condition of
distributed food (Tellinghuisen, 1989)?
In answering question (1) the Official Opinion cited The South Dakota Supreme Court in
Jerauld County v. St. Paul-Mercury Indemnity Company holding, “[g]overnmental support of the
poor and indigent has long been recognized as a means of promoting the general welfare of the
state[]; [i]t is an exercise of the police power of the state” (Jerauld Cty. v. St. Paul-Mercury
Indem. Co., 76 S.D. 1, 7, 71 N.W.2d 571, 574 (1955)). The Jerauld County opinion reiterated
that while each county has a duty to administer relief and assistance to indigent or poor persons,
[the county has] a choice as to the means by which such relief is provided (Tellinghuisen, 1989).
Hence, where the provision of food may be necessary to properly care for a county's indigent or

poor and the commissioners of that county determine a food pantry program to be an appropriate
means, SDCL § 28-13-164 authorizes a county to fund such a program (Tellinghuisen, 1989).
Regarding question (4) the Official Opinion cited the South Dakota Legislature S.D.
Codified Laws §§ 39-4-22,5 39-4-23,6 39-4-24 and 39-4-25 which procured protection to food
donors (USDA/EPA, 2010; Tellinghuisen, 1989). The Attorney General’s predecessor in office
opined that SDCL 39-4-23 presumes to exempt “a bona fide charitable or nonprofit
organization” from “criminal penalty or civil damages” (Tellinghuisen, 1989; See Official
Opinion No. 84-15). Hence, where a food pantry program could be organized as a bona fide
charitable or nonprofit organization, and recipients receive food items free of charge therefrom,
liability would appear to be limited by statute (Tellinghuisen, 1989). Thus by statute and
Official Opinion, in South Dakota food donation to a bona fide charitable or nonprofit
organization is exempt from criminal penalty or civil damages.
Bill Emerson Good Samaritan Food Donation Act.
Within the United States, the states' widespread experimentation with Good Samaritan
food donation laws represented a substantial victory for proponents of this approach to
combating hunger (Morenoff, 2002). Nonetheless, by the late 1980s, voices within this camp of
food donation supporters surveyed the patchwork of state laws and suggested that their goal
4 The county commissioners in each county are responsible for the care and relief of all poor persons in the county
as provided by this chapter as long as those persons remain eligible. The commissioners may designate a county
official to assist in the coordination of poor relief information with other counties.
S.D. Codified Laws § 28-13-16.
5 The good-faith donor of any perishable food, apparently fit for human consumption, to a bona fide charitable or
nonprofit organization for free distribution, or a gleaner of any perishable food apparently fit for human
consumption, is not subject to criminal penalty or civil damages arising from the condition of the food, unless an
injury is caused by the gross negligence, recklessness,or intentional conduct of the donor or gleaner.
S.D. Codified Laws § 39-4-22.
6 A bona fide charitable or nonprofit organization which in good faith receives food, apparently fit for human
consumption, and distributes it at no charge, is not subject to criminal penalty or civil damages resulting from the
condition of the food unless an injury results from the gross negligence, recklessness,or intentional conduct of the
organization. S.D. Codified Laws § 39-4-23.

would be better served by uniform legislation; with this aim in mind, the country's largest
charitable feeding organization, America's Second Harvest, and other groups brought their
message to the national stage (Morenoff, 2002).
The first proposal for a federal Good Samaritan food donation law came before Congress
on March 1, 1990 (Morenoff, 2002). There Senator Don Nickles (R-OK) and a bipartisan group
of cosponsors offered amendment number 1283 (Morenoff, 2002). Senator Nickles argued that
because many food donors were national in scope, the patchwork of 50 state Good Samaritan
food donation laws complicated donations and therefore the states should voluntarily adopt the
Model Act (Morenoff, 2002). Attracting little attention in the House and Senate the Model Act
became Title IV of the National and Community Service Act, which President Bush signed into
law on November 16, 1990—The Model Act was then codified at 42 U.S.C §§ 12,671-12,673
(Morenoff, 2002).
The success of the Model Act depended on large part that states would adopt the act;
however, only one state took this course of action in the five ensuing years, the concerns behind
the Model Act loomed just as large in the mid-1990s as they had before Congress entered the
fray (Morenoff, 2002). The remaining disparities among the state Good Samaritan food donation
laws came to the attention of Representative Pat Danner (D-MO), when one of her constituents,
contacted her frustrated because a major national corporation in the town had changed its policy
on food donations (Morenoff, 2002). During House debate on the Bill Emerson Act,
Representative Goodling said, “[m]any times individuals and corporations are interested in
donating food to the needy however, the fear of liability prevents them from doing so” (as cited
in Haley, 2013).

During Senate debate, Senator Santorum concurred, noting that “[l]iability concerns are
the overriding reason why unsalable, but otherwise wholesome, food is destroyed rather than
donated to charity” (as cited in Haley, 2013). Another Senator, Senator Bond said, “[i]n the past,
private donors have been reluctant to make contributions to nonprofit organizations because they
are concerned about potential civil and criminal liability” (as cited in Haley, 2013). According
to a former food rescue director, donors' concerns about liability are the biggest obstacle that
charitable food programs face (as cited in Haley, 2013).
To address this problem, and the failure of the Model Act, Representative Danner
developed legislation to give the Model Act the full force and effect of law (Morenoff, 2002).
Representative Danner enlisted Representative Bill Emerson (R-MO), as the first cosponsor
because Emerson had become a leading voice on hunger issues during his tenure in Congress, his
support for H.R. 2428 increased the bill's credibility (Morenoff, 2002). Representative Danner
later remarked, “It was Bill[] [Emerson’s] tireless effort in talking to members of the leadership,
committee and subcommittee chairmen ... that made the legislation a reality” (as cited in
Morenoff, 2002).
Towards the later stages of the legislative process, Representative Emerson's health
began to fail (Haley, 2013). Representative Emerson passed away on June 22, 1996, before final
passage of the bill (Haley, 2013). After his passing, Congress amended the bill so that it would
be titled “The Bill Emerson Good Samaritan Food Donation Act” to honor his efforts at reducing
hunger and improving the nation's nutrition programs (Haley, 2013). President Bill Clinton
signed H.R. 2428 into law on October 1, 1996 (Morenoff, 2002) See Appendix C: § 1791Bill
Emerson Good Samaritan Food Donation Act. In my review of the Emerson Act there was a
total void of lawsuits arising under the Act, meaning potentially a few outcomes (1) the Emerson

Act has never been tested; (2) The Emerson Act is so thorough in safeguarding food donors and
distributors no lawsuit has prevailed past summary judgement; or (3) Donors of food settle cases
involving food illnesses to avoid bad publicity.
Preemption.
Facially, the Emerson Act conflicts with most state laws concerning food donation and
the liability of donors (Haley, 2013). The general rule for a conflict between state and federal
law is that federal law preempts state law; preemption can be express or implied, full or partial
(Haley, 2013). The Emerson Act is silent on the matter of preemption; however, the legislative
history clearly manifests Congressional intent for the Act to supersede conflicting state and local
law, the Emerson Act is an example of implied preemption (Haley, 2013). During floor debate,
numerous congressional representatives [Senator Santorum and Representative Clay] expressly
stated that they intended for the Bill Emerson Act to “establish[] a single national liability
standard for the good-faith donation of food and grocery products” and believed that doing so
would “encourage and enable restaurants, grocers, and other donors to help feed the hungry” (as
cited in Haley, 2013).
The Emerson Act's implied preemption power does not mean that states cannot develop
their own “Good Samaritan” laws—such as SDCL §§ 39-4-22, 39-4-23—that protect those
involved in food donation activities and encourage food donation7 (Haley, 2013). Rather, the
Emerson Act only preempts those state or local laws that provide less liability protection (Haley,
2013). The Emerson Act's liability protection operates as a floor for liability protection for those
7 Although not discussed in detail both Internal Revenue Code 170(e)(3) and the U.S. Federal Food Donation Act of
2008 are noteworthy.IRS 170(e)(3) provides enhanced tax deductions to businesses to encourage donations offit
and wholesome food to qualified nonprofit organizations serving the poor and needy. Qualified business taxpayers
can deduct the cost to produce the food and half the difference between the cost and full fair market value of the
donated food. The U.S. Federal Food Donation Act of 2008 specifies procurement contract language encouraging
Federal agencies and contractors of Federal agencies to donate excess wholesome food to eligible nonprofit
organizations to feed food-insecure people in the United States.

involved in the covered activities; states are free to increase the amount of liability protection
afforded to those involved or to expand the covered activities and personnel (Haley, 2013).
Therefore, the Emerson Act only partially preempts state law (Haley, 2013; Morenoff, 2002).
Ethical Considerations
Although altruistic in design—very few people likely will have problems feeding food
insecure individuals—to ensure thoroughness the following concerns per arguendo will be
discussed.
The encouragement of a food recovery systemrelieves the government of its obligation
to care for the poor.
South Dakota Codified Laws § 28-13-16 requires the county commissioners of each
South Dakota county be responsible for the care and relief of all poor persons in the county. In
enacting Good Samaritan laws, the government has shifted the responsibility of providing food
to hungry citizens to the private and non-governmental sectors instead of truly tackling the
problem with substantive and effective hunger reduction programs, as well as other programs
that do not relate directly to food insecurity but affect an individual's resources and, in turn, the
amount of money they have to spend on food (Cohen, 2006). As a result, food insecure
individuals must rely on non-governmental assistance, such as emergency food donation centers
(Cohen, 2006).
Comparatively, officials in the French Parliament voted unanimously to put an end to
food waste by forcing large grocery stores to donate unsold food (White, 2015). Jacques Bailet,
head of Banques Alimentaires, a network of French food banks, described the law as “positive
and very important symbolically” (Chrisafis, 2016). Bailet said it would greatly increase an
already emerging trend for supermarkets to donate to food banks, “most importantly, because

supermarkets will be obliged to sign a donation deal with charities, we’ll be able to increase the
quality and diversity of food we get and distribute” (Chrisafis, 2016). Although laws such as this
reduce the government’s obligation to provide assistance to the poor, it does not divert resources
from productive source; it saves what would be wasted.
Addressing the French food recovery from a Kant perspective it is requisite to examine
deontological ethics. Immanuel Kant’s deontological theory requires; (1) that to act in the
morally right way, people must act from duty (deon); (2) it was not the consequences of actions
that make them right or wrong but the motives of the person who carries out the action (Kant,
1785). Kant (1785) argues that to act in the morally right way one must act purely from duty
beginning with an argument that the highest good must be both good in itself and good without
qualification. Something is "good in itself" when it is intrinsically good, and "good without
qualification", when the addition of that thing never makes a situation ethically worse (Kant,
1785). Although the French required donation of the food is “good in itself,” the duty is no
longer from the morally right way but is required by law.
The argument that enacting a food recovery program in Vermillion, the Clay County
Commissioners duty of providing care and relief for poor persons is reduced is untrue. The
program will not fulfill all of the needs of individuals in need nor will it prohibit current
government programs, or discourage other altruistic behavior.
The danger of donating food outweighs the benefits of donating.
According to the Centers for Disease Control and Prevention (“CDC”), there are an
estimated 48 million foodborne illness cases annually in the United States, which translates to
one case for every six Americans each year (CDC, 2011). The consequences for being the
source of a foodborne illness are harsh: “[a]ll fifty states generally hold one who distributes food

or any other defective product, the defective aspect of which causes injury, to be strictly liable,
which means liable even in the absence of negligence” (as cited in Haley, 2013).
The consequence of igniting a food borne illness is for moral reasons, economic reasons
and public relations reasons as well as the fact that the Good Samaritan Act protects the donor—
obviating the food recipient who became ill from any legal recourse. But food recovery
programs provide many benefits to numerous stakeholders. Some of these benefits include: (1)
Save businesses money otherwise spent on trash collection and disposal fees; (2) Provide
wholesome food to needy families in the community; (3) Help communities and businesses meet
state and local waste reduction goals; (4) Create and improved public image for businesses; (5)
Help sustain local industries and jobs; and (6) Reduce waste generated and methane gas
produced by landfills (Haley, 2013). Additionally, Jeremy Bentham, the founder of
Utilitarianism, defined utility as the aggregate pleasure after deducting suffering of all involved
in any action (Hall, 1949). Under the utilitarianism theory—in normative ethics holding that the
best moral action is the one that maximizes utility—the food recovery program despite the risk
of sickness to some would be supported (Hall, 1949).
Assessment Methodology
Aramark at USD has prohibited the collection, documentation and photography of food
which is currently disposed of; therefore, the pre-implementation waste profile which is
suggested by the FRN (2016) is unfulfilled. The FRN (2016) provides all chapters with scales
and uniform collection sheets to document the collection of recovered food. Since 2011, FRN
(2016) has recovered 1,198,857 pounds of food. Since all the food at USD is currently disposed
of, the first-year will serve as a data collection period for assessing future goals. AWOL in
conjunction with FRN should incorporate SMART (specific, measurable, achievable, relevant,

time-bound) performance goals when assessing future aspirations (MIT, 2016). Within the first
year, AWOL’s SMART goal could be to include at minimum, two participants from each one of
their Spring or Fall break trips on a food recovery. AWOL, specifically the Director of Food
Recovery was provided an excel sheet to be used each recovery for AWOL data collection as
well as to fill out the required FRN online form.
A future goal for AWOL, FRN as well as FV would be collecting the excess food from
the Aramark kitchen i.e. the leftovers from the Commons—however this would require increased
infrastructure for transporting, storing and distributing. Additionally, it would be prudent to
evaluate whether the Vermillion population could utilize the increased amount of donations;
perhaps pursuant to the EPA (2015) Food Hierarchy it would be more effective to feed animals
or compost. The future of food recovery and ensuring compliance with the EPA (2015) Food
Hierarchy is now in the very capable hands of AWOL.
Decision-making Tools/Strategies
The decisions made towards how to most effectively implement a food recovery program
at USD were guided by best practices from well-established national organizations, namely FRN
(2016). FRN (2016) has cultivated connections with major campus food providers—including
Aramark—which is crucial in convincing local branches of those organizations that concerns
over both criminal and civil liability are unfounded. As discussed in Communication and
Leadership Strategy, bolstering awareness of this new program on campus informing multiple
media outlets, administration and student organizations was crucial to make informed decisions
and provide support for implementation. Below is a decision making flowchart. Additionally, a
site visit at the Seattle Pacific University, March 18, 2016 where a food recovery was observed,

information was exchanged and questions were answered by Maya Swinehardt, a senior in
Biology confirmed implementation decisions.

Organizational Policy Process
Most people inherently understand that wasting food is unscrupulous and should be
avoided, but the majority of these people do not know the extent of the issue nor are they aware
of its economic or environmental costs (Haley, 2013). A 2008 study put the value of the food
wasted at the retail and consumer levels at a combined $165.5 billion (Haley, 2013). Food waste
is especially problematic because its decomposition produces greenhouse gas emissions. “When
food is disposed of in a landfill it rots and becomes a significant source of methane - a potent
greenhouse gas with 21 times the global warming potential of carbon dioxide. Landfills are a
major source of human-related methane in the United States, accounting for more than 20
percent of all methane emissions” (EPA, 2013; Haley, 2013).
The United States is the richest nation in the world, yet it continues to have a very real
hunger problem (Haley, 2013). It is sad and seemingly irreconcilable that a country that wastes
an estimated 96 billion pounds of food each year has a persistent and widespread hunger problem
(Haley, 2013). Common sense supposes that if the United States could dispose of so much food
there must be a surplus and all Americans were adequately fed but this is far from true; there is a
serious disconnect in the U.S. food system (Haley, 2013). The policy of feeding food insecure
individuals, reducing food waste which results in unnecessary greenhouse gas emissions as well
as utilizing the support of existing law completes the policy analysis that implementing a food
recovery plan at USD is prudent.
Aramark at USD agreed after they received more information on the concept of food
recovery as well as guidance from Aramark Corporate. Dean Greives of the University of South
Dakota supported food recovery as USD after learning SGA passed a resolution in support and
she acknowledged the campus-to-community connection this program would foster. AWOL

(2016) recognized the policy interests in food recovery aligned with their goals of encouraging
Active Citizenship.
Chapter IV.
Conclusions
Eliminating food waste and simultaneously decreasing the amount of food insecure
individuals requires only one solution; the implementation of a food recovery program. For the
aforementioned reasons, USD should, and has adopted the implementation of a food recovery
program as suggested by this Capstone report. Although the guiding framework, smart practices
and support of FRN have been critical to the suggested, as well as actual implement of a food
recovery program, implementation has not occurred without resistance.
Despite opposition, SGA passed a resolution in support of implementing a food recovery
program on April 12, 2016. AWOL adopted a new position; Director of Food Recovery into
their constitution, elected Hailey Purves to fill that position and since then Purves has met the
various stakeholders, reviewed the Food Recovery Director binder and is set to begin food
recoveries at USD beginning the Fall 2016 semester. Aramark at USD has received
confirmation from Aramark’s corporate offices detailing that Aramark already has established
protocol in place, affirming the legality of food recovery and to support food recovery at USD
(omitted due to confidentiality specifications of the email). The guiding framework, Gantt chart,
best practices and support of the FRN have made the suggestion for how to implement a food
recovery program at USD a reality.
The completion of this Capstone required utilizing knowledge and skills acquired from
all of the M.P.A. core courses. Due to the nature of this Capstone, requiring actual deadlines,
which often overlapped, I found the information from Analytic Technic in Public Policy

extremely useful. The Gantt chart, as well as SMART goals which were instilled as hallmarks of
public administration tools in the tool box of administrative resources proved accurate. The
numerous class assignments analyzing the interaction, goals and decisions of organizations
added in my ability to formulate policy decisions in this Capstone.
Recalling Public Personnel Management, the carrot and stick idiom for motivation, as
discussed in class was directly related to my concerns of longevity when drafting position
descriptions, legislation and cultivating support. Public Personnel Management in conjunction
with Analytic Technic provided the basis for designing the position description, the relationship
the position would have with the rest of the AWOL Executive Board and what future goals the
position could achieve. Organizations and Management provided useful insight into how best to
align the structure of the existing organizations and how to provide longevity to the food
recovery program at USD. Additionally, Organizations and Management in connection with
Administrative Law and Seminar in Public Administration emphasized the importance of
acknowledging authority; be it federal law, state law, university policy, Aramark rule, campus
politics, nonprofit structures and student organization structure.
Research Methods facilitated a strong background in implementation measurement tools
and opened multiple opportunities for future benchmarks once data is collected. However, in
this Capstone due to the lack of data there was no ability to analyze data but the data later will be
essential to affirm the success of the program. The FRN relies heavily on the collection on data
for their organization, as should AWOL to use as a tool to further introduce sustainable practices
at USD—the tools have been left in place for AWOL to collect that data, I am confident the
leadership has the skillset to use data as a policy tool. Budgetary & Fiscal Management ensured
a background in finances which will highlight the benefit of this program, provide grant support.

Advanced Leadership Theory and Practice, like Public Personnel Management cultivated
the methodology of aligning the relevant stakeholders and directing their support to the ends
proffered by the capstone recommendations. In the same vein as Seminar in Public
Administration, Advanced Leadership Theory & Practice, in theory, as well as practice was
greatly depend on upon when coordinating with all relevant stakeholders and deciding how best
to draft the position description to be inclusive instead of scientific in leadership. Administrative
Thought/Ethics aside from the mentioned ethical conundrums in the Capstone provided the
groundwork for many ethical conversations stemming from the idea of giving food which would
normally be thrown away to people in need.
This Capstone report reinforced the rigor, thoroughness, and value of the M.P.A’s core
course requirements. Drawing from the skills and knowledge acquired from each course
demystified the fear of “doing” public administration as a practitioner, whatever that may look
like in my future. This is especially true since my Capstone is not hypothetical, the skills and
knowledge allowed for not just the suggested implementation protocol, but the successful
implementation of a food recovery program at The University of South Dakota.

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Appendix A
Notes: Committee Recommendation
Pass:_5_ Fail:___ Abstain:_1_
Senate Action
Pass:_21__ Fail:_0__ Abstain:_2__
Date: March 29, 2016
Senate Resolution # 3
Introduced by: President Steinlicht
Committee:
Supported By: Vice President Novak, Senator Mann, and Rayapalli
A Resolution Supporting Alleviating Food Insecurity in Vermillion
WHEREAS, food insecurity—when individuals’ access to enough food is limited by a lack of
money and other resources—is present in every county in America and an estimated 49 million
Americans, or 16.1%, are food insecure, while nearly 100 billion pounds of food go to waste in
America annually; and
WHEREAS, in South Dakota one out of every eight individuals is food insecure and in Clay
County some 2,190 individuals, 15.7% of the population are food-insecure; and
WHEREAS, in 2014 Feeding Vermillion organizations; the Vermillion Food Pantry fed 5,874
people annually, the Vermillion Weekend Backpack Program served 205 children weekly, and
the Vermillion Welcome Table served 150 to 175 individuals weekly; and
WHEREAS, the University of South Dakota and Aramark are committed to partnerships with the
campus community supporting socially responsible and sustainable initiatives; and
THEREFORE LET IT BE RESOLVED that the University of South Dakota Student
Government Association supports efforts to alleviate food insecurity in Vermillion;
BE IT FURTHER RESOLVED that the University of South Dakota Student Government
Association encourages the University of South Dakota Administration and Aramark Food
Services to sponsor the implementation of a Coyote Cash donation system at all USD Campus
Convenience locations to benefit Feeding Vermillion.
_________________________
Nathaniel Steinlicht, President OFFICIAL STAMP
USD Student Government Association

Appendix B
Notes: Committee Recommendation
Pass:_5_ Fail:_0_ Abstain:_1_
Senate Action
Pass:__22_ Fail:__0_ Abstain:_1__
Date: March 29, 2016
Senate Resolution # 2
Introduced by: President Steinlicht
Committee:
Supported By: Vice President Novak, Senator Mann and Rayapalli
A Resolution Supporting the Implementation of a Food Recovery Plan
WHEREAS, the Bill Emerson Good Samaritan Food Donation Act and SDCL § 39-4-22
encourage food donation from individuals and businesses by reducing the liability of donors who
donate food items to non-profit organizations establishing a liability standard for those donating
throughout the United States; and
WHEREAS, food recovery is a low-risk, high-benefit way to reduce waste, feed hungry, shrink
an enterprise’s environmental footprint, enhance sustainability, reduce costs, provide tax
incentives, improve sanitation, build corporate conscience, and enhance community as well as
customer perception of the food sector businesses; and
WHEREAS, food insecurity—when individuals’ access to enough food is limited by a lack of
money and other resources—is present in every county in America and an estimated 49 million
Americans, or 16.1%, are food insecure, while nearly 100 billion pounds of food go to waste in
America annually; and
WHEREAS, in South Dakota one out of every eight individuals is food insecure, in Clay County
some 2,190 individuals, 15.7% of the population is food-insecure; and
THEREFORE LET IT BE RESOLVED that the University of South Dakota Student
Government Association supports Implementation of a Food Recovery Plan;
BE IT FURTHER RESOLVED that the University of South Dakota Student Government
Association encourages the University of South Dakota Administration and Aramark Food
Services to sponsor the implementation of a food recovery plan at the University of South
Dakota to Feeding Vermillion.
_________________________
Nathaniel Steinlicht, President OFFICIAL STAMP
USD Student Government Association

Appendix C
Effective: October 1, 1996
42 U.S.C.A. § 1791
§ 1791. Bill Emerson Good Samaritan Food Donation Act
(a) Short title
This section may be cited as the “Bill Emerson Good Samaritan Food Donation Act”.
(b) Definitions
As used in this section:
(1) Apparently fit grocery product
The term “apparently fit grocery product” means a grocery product that meets all quality
and labeling standards imposed by Federal, State, and local laws and regulations even
though the product may not be readily marketable due to appearance, age, freshness,
grade, size, surplus, or other conditions.
(2) Apparently wholesome food
The term “apparently wholesome food” means food that meets all quality and labeling
standards imposed by Federal, State, and local laws and regulations even though the food
may not be readily marketable due to appearance, age, freshness, grade, size, surplus, or
other conditions.
(3) Donate
The term “donate” means to give without requiring anything of monetary value from the
recipient, except that the term shall include giving by a nonprofit organization to another
nonprofit organization, notwithstanding that the donor organization has charged a
nominal fee to the donee organization, if the ultimate recipient or user is not required to
give anything of monetary value.
(4) Food
The term “food” means any raw, cooked, processed, or prepared edible substance, ice,
beverage, or ingredient used or intended for use in whole or in part for human
consumption.
(5) Gleaner
The term “gleaner” means a person who harvests for free distribution to the needy, or for
donation to a nonprofit organization for ultimate distribution to the needy, an agricultural
crop that has been donated by the owner.
(6) Grocery product
The term “grocery product” means a nonfood grocery product, including a disposable
paper or plastic product, household cleaning product, laundry detergent, cleaning product,
or miscellaneous household item.
(7) Gross negligence
The term “gross negligence” means voluntary and conscious conduct (including a failure
to act) by a person who, at the time of the conduct, knew that the conduct was likely to be
harmful to the health or well-being of another person.
(8) Intentional misconduct

The term “intentional misconduct” means conduct by a person with knowledge (at the
time of the conduct) that the conduct is harmful to the health or well-being of another
person.
(9) Nonprofit organization
The term “nonprofit organization” means an incorporated or unincorporated entity that--
(A) is operating for religious, charitable, or educational purposes; and
(B) does not provide net earnings to, or operate in any other manner that inures to
the benefit of, any officer, employee, or shareholder of the entity.
(10) Person
The term “person” means an individual, corporation, partnership, organization,
association, or governmental entity, including a retail grocer, wholesaler, hotel, motel,
manufacturer, restaurant, caterer, farmer, and nonprofit food distributor or hospital. In the
case of a corporation, partnership, organization, association, or governmental entity, the
term includes an officer, director, partner, deacon, trustee, council member, or other
elected or appointed individual responsible for the governance of the entity.
(c) Liability for damages from donated food and grocery products
(1) Liability of person or gleaner
A person or gleaner shall not be subject to civil or criminal liability arising from
the nature, age, packaging, or condition of apparently wholesome food or an
apparently fit grocery product that the person or gleaner donates in good faith to a
nonprofit organization for ultimate distribution to needy individuals.
(2) Liability of nonprofit organization
A nonprofit organization shall not be subject to civil or criminal liability arising
from the nature, age, packaging, or condition of apparently wholesome food or an
apparently fit grocery product that the nonprofit organization received as a
donation in good faith from a person or gleaner for ultimate distribution to needy
individuals.
(3) Exception
Paragraphs (1) and (2) shall not apply to an injury to or death of an ultimate user
or recipient of the food or grocery product that results from an act or omission of
the person, gleaner, or nonprofit organization, as applicable, constituting gross
negligence or intentional misconduct.
(d) Collection or gleaning of donations
A person who allows the collection or gleaning of donations on property owned
or occupied by the person by gleaners, or paid or unpaid representatives of a
nonprofit organization, for ultimate distribution to needy individuals shall not be
subject to civil or criminal liability that arises due to the injury or death of the
gleaner or representative, except that this paragraph shall not apply to an injury or
death that results from an act or omission of the person constituting gross
negligence or intentional misconduct.
(e) Partial compliance
If some or all of the donated food and grocery products do not meet all quality
and labeling standards imposed by Federal, State, and local laws and regulations,
the person or gleaner who donates the food and grocery products shall not be
subject to civil or criminal liability in accordance with this section if the nonprofit
organization that receives the donated food or grocery products--

(1) is informed by the donor of the distressed or defective condition of the
donated food or grocery products;
(2) agrees to recondition the donated food or grocery products to comply
with all the quality and labeling standards prior to distribution; and
(3) is knowledgeable of the standards to properly recondition the donated
food or grocery product.
(f) Construction
This section shall not be construed to create any liability. Nothing in this section shall be
construed to supercede State or local health regulations.
CREDIT(S)
(Pub.L. 89-642, § 22, formerly Pub.L. 101-610, Title IV, § 402, Nov. 16, 1990, 104 Stat. 3183;
renumbered § 22, transferred and amended Pub.L. 104-210, § 1(a)(2), (b), Oct. 1, 1996, 110 Stat.
3011, 3012.)
42 U.S.C.A. § 1791, 42 USCA § 1791
Current through P.L. 114-115 (excluding 114-94 and 114-95) approved 12-28-2015

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