State legislators are trying to encourage supermarkets to do more to help the hungry.

Assemblyman Thomas Abinanti, D-Greenburgh/Mt. Pleasant, is sponsoring A.4398 to amend the state Environmental Conservation Law to add a provision designed to increase food donations by large supermarkets. He said there are roughly 2.8 million New York residents who face hunger and food insecurity, and increasing food donations from supermarkets to food pantries and food banks would help the less fortunate.

Assemblyman John Salka, R-Brookfield, questioned Abinanti on the Assembly floor regarding the legislation, noting that the legislation sets up a policy that guides supermarkets how to go about donating surplus food and wondering what would constitute a good faith effort to comply with the legislation.

“I have admit I take issue with the fact that we even have to have food pantries in one of the wealthiest countries in the world,” Salka said. “It’s unfortunate and maybe we can spend a little bit more energy solving that problem.”

Abinanti said the legislation would require food retailers to respond to a request by a food pantry or soup kitchen. If a supermarket makes a good faith effort to set up a relationship with food banks or soup kitchens, they will have complied with the legislation.

Abinanti said many retailers already participate in these types of programs, so the state legislation would be a step to formalize the arrangements while encouraging more retailers to participate. The state would also relax potential liability on retailers by allowing lawsuits only against retailers only if the food donated is of poor qualify due to gross negligence or intentional misconduct.

“So a supermarket that does join in doing this gets a little bit more protection and we put a little bit more burden on the food pantry and the soup kitchens who are already exercising that care because they’re collecting food from various places, so they’re skilled at looking at what’s the date on the can, how long will this food last, etc.,” Abinanti said.

Assemblyman Andrew Goodell, R-Jamestown, had questions for Abinanti regarding a possible unlawful taking of food from supermarkets. Government has the ability to compel supermarkets to give surplus food to the government for a price, but Goodell was concerned that the state may not have the authority to compel a supermarket to give surplus food to a third party with no compensation attached. Abinanti said the food would likely be deemed to have no value because the supermarkets are saving the cost of disposal.

“It’s frankly not an issue that I have looked at,” Abinanti said. “But if you take a look at the bill itself we do say in here that no supermarket shall be required to provide a specific quantity. So I think that avoids the issue that you’re raising, although it is an interesting issue that I’d suppose we can look at.”

Goodell joined with Salka and recommended the legislation be approved. Assembly members approved the bill 136-2. Goodell noted that it may be necessary to put money in the state budget at some point if the program takes off so that there are no constitutional questions in the future.

“As my colleague Mr. Abinanti correctly noted, this bill doesn’t have any enforcement mechanism and doesn’t have any minimum quantities, doesn’t have any minimum schedule that has to be complied with,” Goodell said. “But I am concerned with setting the precedent of taking other people’s property and distributing it to third parties without payment. That’s right on the edge of what’s unconstitutional taking.”