SMU Law Review
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
For nearly fifty years, federal corporate food waste legislation has consistently employed an aretaic (virtue-based) theoretical framework that assumes corporations will act as “Good Samaritans” when provided with appropriate incentives and liability protections. Beginning with Federal Tax Code Section 170(e)(3) in 1976 and continuing through the Bill Emerson Good Samaritan Food Donation Act (1996), the Federal Food Donation Act (2008), the Agri-cultural Improvement Act (2018), and the Food Donation Improvement Act (2022), United States policy has relied exclusively on voluntary compliance mechanisms rather than mandatory regulations. This Article argues that this approach is built on a myth, and that the myth operates on three interlocking levels. At the legislative level, it holds that corporations will donate surplus food if liability barriers are removed, a claim that fifty years of evidence has consistently refuted. At the hermeneutic level, it misreads the parable of the Good Samaritan itself: corporations in the food waste context are not the Samaritan, who acted voluntarily out of genuine compassion, but the innkeeper, who provided services in exchange for guaranteed payment. At the ideological level, it assumes that virtue can be cultivated in profit-driven entities whose fiduciary obligations run not to hungry communities but to shareholders.
The consequences of this myth are measurable. Despite decades of tax incentives and liability shields, corporate food waste has increased from 30% of the available food supply in 1974 to nearly 40% today, while 47.4 million Americans experience food insecurity. Food waste in United States landfills generates 34% of all human-related methane emissions, substantially con-tributing to climate change that disproportionately harms the communities that food donation policies were designed to serve. The persistence of incidents like the 2021 Portland Fred Meyer controversy—where thousands of pounds of edible food were discarded and guarded from recovery by residents during a community crisis—demonstrates that voluntary approaches fail precisely when they are needed most. Even industry leaders fall short: after nine years of its Zero Hunger | Zero Waste initiative, Kroger, ranked first among United States supermarket chains for food waste commitment by the Center for Biological Diversity in 2019, only achieved a cumulative food waste reduction of less than 4% against a stated goal of 50% by 2025.
This Article provides a comprehensive theoretical analysis of United States corporate food waste legislation, examining why virtue-based approaches have systematically failed to address the interconnected crises of food waste, food insecurity, and environmental harm. The analysis demonstrates that aretaic theory, which seeks to cultivate virtue through indirect encouragement rather than direct mandates, is fundamentally incompatible with corporate shareholder theory and profit-maximization imperatives. The Article further critiques France’s Garot Law, which mandates supermarket food donations through categorical duties, demonstrating that while this deontological approach achieved impressive increases in food donations, it failed to meaningfully reduce overall food insecurity due to its rigid, context-insensitive framework and the absence of monitoring capacity sufficient to ensure that donated food reached food-insecure communities.
Moving beyond these existing approaches, this Article proposes a consequentialist-based Corporate Partner Food Waste Act, grounded in Congress’ Commerce Clause authority and administered by the EPA. Rather than assuming corporations will choose to do good, the Act would ensure they do good as a natural consequence of pursuing their interests within a well-designed system of mandatory requirements and measurable outcomes. The framework establishes food recovery requirements differentiated by geographic proximity to food-insecure communities—using USDA Food Access Research Atlas definitions as the baseline—creating “Priority Zones” and “Standard Zones” with distinct obligations tied to community need. Penalties are anchored to company revenue rather than fixed amounts, ensuring that the cost of non-compliance consistently exceeds the cost of compliance regardless of a company’s size. Annual performance reviews, comprehensive data collection, and an EPA Food Waste Reduction Coordinator provide the monitoring infrastructure that voluntary frameworks have consistently lacked. After five decades of legislative failure, this Article argues that the path forward requires abandoning the Good Samaritan myth entirely and replacing it with a regulatory framework that treats corporations not as potential virtuous actors, but as corporate partners whose obligations are enforceable, measurable, and calibrated to actual outcomes.
Recommended Citation
Tyson-Lord Gray,
The Good Samaritan Myth: Why Virtue-based Food Waste Policy Fails and What Should Replace It,
79
SMU L. Rev.
515
(2026)
