Recent Brazilian regulation aims to fight food waste by encouraging food donations – but it puts public health at risk, warn consumer groups and legal experts.

Brazil’s federal government has sanctioned Law No. 14,016 / 20, which aims to prevent unnecessary food waste by encouraging stakeholders to donate food.

Any establishment that produces meals, such as manufacturers, supermarkets, cooperatives, restaurants, cafeterias, and hospitals, can donate unsold surplus food to families or individuals in need.

The regulation states that food donations must meet certain criteria, including having a valid expiry date and being suitable for human consumption. They must also be stored according to the manufacturer’s specifications and be undamaged from a food safety perspective even if the packaging is partially damaged or they have a “commercially undesirable” appearance.

Removing responsibility

Some stakeholders have raised concerns over several articles of the regulation they say exonerate donors in the event of food poisoning.

Article four of the bill reads: “Donors and possible intermediaries will be held liable in the criminal sphere only if it is proven, at the time of the first delivery, even if this is not made to the final consumer, the specific intent of causing damage to the health of others.”

According to article three, a recipient may only seek compensation for damages caused by donated food if the donor or intermediary “acted with intent” while article two states that donating food does not constitute a consumer relationship between the donor and recipient.

‘Serious health risks for recipients’

Dafné Didier, director of quality and regulatory affairs at Fortaleza-based Tacta Food School, said article two of the regulation was in direct contravention of Brazil’s Consumer Protection Code (CDC in Portuguese). This Code states that every natural or legal person who acquires or uses a product or service is the final recipient and eligible to claim for compensation in the event of damage caused to health.

The current food waste regulation “negates […] the legal and constitutional right of consumer”, Didier said.

“It is the duty of the ‘donor and intermediary’ to ensure that donated food does not cause damage or harm to the health of people in need. And it is the right of these consumers who will receive the donation to be guaranteed safe food. To deny this, once again, is to tear up our CDC and laugh at our Constitution,” he told The Ingredients Network.

“Every donor and intermediary, with the help of [article three], will always have an excuse that [they] acted in good faith because they were donating food to families in need,” he added.

“The fight against food waste should not be solved by putting everyone who is in a delicate and fragile situation – hunger – at risk. Those who need food have the right to receive due protection from the State. The State cannot deny its responsibility. To do so is to go against what is legal, ethical and human.”

Welcomed by food industry

João Dornellas, executive president of the Brazilian Food Industry Association (ABIA), welcomed the law and said it removed the “excessive risk” previously faced by food donors.
“This law helps to break these barriers,” he told Brazilian media. “It makes the donor responsible only in case of fraud.”

The head of sustainability at Carrefour Brazil, Lucio Vicente, also welcomed the legal framework provided by the regulation and said it had a team of nutritionists and technical experts to ensure the quality and safety of donated food.

Fighting food waste, fuelling obesity?

São Paulo-headquartered consumer rights organization IDEC, meanwhile, objected to the type of food that can be donated. It said the law would increase donations of ultra-processed foods that are high in salt, sugar and fat, such as canned foods, ready meals, and instant noodles.

“Scientific evidence is robust when it points to the relationship between ultra-processed foods and growing rates of overweight, obesity and other chronic non-communicable diseases, risk factors that exacerbate the effects of coronavirus for people,” said Patrícia Gentil, nutritionist at IDEC. “There is no concern [for] what the population will eat [or] the guarantee of an adequate and healthy diet.”