FAR 26.401—Definitions.
Plain-English Summary
FAR 26.401 is a definitions section for Subpart 26.4, which governs the donation of excess food by executive agencies. It defines four key terms used throughout the subpart: "apparently wholesome food," "excess food," "food-insecure," and "nonprofit organization." These definitions matter because they determine what food may be donated, what food qualifies as surplus, who may receive donations, and which organizations are eligible to participate. In practice, the definitions set the legal and operational boundaries for agency food donation programs and help agencies and contractors apply the Bill Emerson Good Samaritan Food Donation Act consistently. They also reduce liability and compliance risk by tying the meaning of donated food to existing federal, state, and local quality and labeling standards. For contracting officers and agencies, this section is the starting point for deciding whether food can be donated and to whom; for nonprofit recipients, it establishes eligibility requirements and the type of food they may lawfully receive.
Key Rules
Apparently wholesome food standard
Food qualifies as apparently wholesome if it meets all applicable Federal, State, and local quality and labeling requirements, even if it is not readily marketable because of appearance, age, freshness, grade, size, surplus, or similar conditions. The definition tracks the Bill Emerson Good Samaritan Food Donation Act and is intended to support safe donation of food that is still legally compliant and fit for consumption.
Excess food definition
Excess food is food that is no longer needed to meet executive agency requirements and would otherwise be discarded. This definition limits the subpart to food that is truly surplus to agency needs and would likely be wasted absent donation.
Food-insecure meaning
Food-insecure means having inconsistent access to sufficient, safe, and nutritious food. This term identifies the population the donation program is intended to help and provides a policy basis for directing excess food to organizations serving people in need.
Nonprofit organization eligibility
A nonprofit organization must be an organization described in section 501(c) of the Internal Revenue Code and exempt from tax under section 501(a). Only organizations meeting both tax-status conditions fall within the definition for purposes of this subpart.
Subpart-specific definitions
These terms apply only within this subpart unless another FAR provision or contract clause says otherwise. Users should not assume the same terms have identical meanings in other parts of the FAR or in other statutes without checking the governing text.
Responsibilities
Executive agencies
Identify food that is excess, determine whether it is apparently wholesome, and ensure any donation activity complies with the standards and limits in this subpart and applicable food safety and labeling laws.
Contracting officers
Apply these definitions when structuring or administering contracts or donation-related arrangements, and verify that donated food and recipient organizations meet the regulatory criteria before authorizing disposition.
Nonprofit organizations
Demonstrate that they qualify as a nonprofit organization under the Internal Revenue Code and use donated food in a manner consistent with the purposes of the subpart, typically to serve food-insecure individuals.
Food recipients and distributors
Accept only food that meets the apparently wholesome food standard and ensure handling, distribution, and use are consistent with applicable legal and safety requirements.
Contractors and food service providers
Support agency identification, segregation, and transfer of excess food when required by contract or agency direction, and avoid treating noncompliant or unsafe food as eligible for donation.
Practical Implications
The key day-to-day question is whether food is both surplus and legally compliant; if it fails quality or labeling standards, it is not apparently wholesome and should not be donated under this subpart.
Agencies should document why food is considered excess and why the receiving organization qualifies as a nonprofit, because those are common audit and compliance points.
Do not confuse "not readily marketable" with unsafe or noncompliant food; cosmetic imperfections, age, or surplus alone do not disqualify food from donation.
Because the definition of food-insecure is broad, agencies and nonprofits should expect the program to support charitable feeding efforts rather than general resale or commercial redistribution.
Users should check whether other statutes, state laws, or contract clauses impose additional handling, liability, or reporting requirements beyond these definitions.
Official Regulatory Text
As used in this subpart- 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, in accordance with (b)(2) of the Bill Emerson Good Samaritan Food Donation Act ( 42 U.S.C. 1791(b) ). Excess food means food that- (1) Is not required to meet the needs of the executive agencies; and (2) Would otherwise be discarded. Food-insecure means inconsistent access to sufficient, safe, and nutritious food. Nonprofit organization means any organization that is- (1) Described in section 501(c) of the Internal Revenue Code of 1986; and (2) Exempt from tax under section 501(a) of that Code.