The Global Food Donation Policy Atlas (GFDPA) reports that each year, approximately 40% of the food produced in Kenya goes to waste amounting to an estimated Ksh.72 billion (USD 654,545,448) a year. At the same time, approximately 36.5% of the population is food insecure. In 2020, Kenya faced the worst locust invasion it has experienced in 70 years, further increasing food insecurity up to 38%.

The Kenyan government has prioritized hunger reduction and food security in its national policy agenda. The Constitution provides that the government must take legislative and policy initiatives to progressively realize the right to food in Kenya. In 2011, Kenya adopted a National Food and Nutrition Security Policy to improve nutrition and the quality of food available to Kenyans. In 2017, Kenya adopted a National Food and Nutrition Security Policy Implementation Framework to implement the National Food and Nutrition Security Policy to ensure that everyone has access to affordable and nutritious food. Further, Kenya instituted Vision 2030 and the Big Four Agenda, which identify food security as a priority. Nonetheless, Kenya is yet to adopt a national law to promote food donation or prevent food loss and waste. Notwithstanding, Kenya holds initiatives to create awareness about food loss and waste and discuss the gaps in policy and implementation that are hindering progress in reducing food loss and waste. In 2017, Kenya hosted the first ever All Africa Post-Harvest Congress. In 2020, the Ministry of Agriculture, Livestock and Fisheries participated in the first International Day of Awareness of Food Loss and Waste. In addition to the government-led responses to food loss and waste, private sector actors including food banks are actively promoting food rescue and donation of surplus food to mitigate hunger and food insecurity.

KENYA FOOD DONATION POLICY HIGHLIGHTS

DATE LABELING: Kenya’s date labeling scheme is set out in the Food, Drugs and Chemical Substances (Food Hygiene) Regulations, 1978, the Specification of Products to Be Marked with Last Date Sale, 1988, the Food, Drugs and Chemical Substances (Food Labelling, Additives and Standards) Regulations and the Labelling of Pre-packaged Foods – General Requirements under the FDCSA. The Labelling of Prepackaged Foods – General Requirements establish a dual date labeling scheme for prepackaged foods, which distinguishes between safety-based and quality-based labels. Specifically, the Labelling of Prepackaged Foods – General Requirements require all pre-packaged foods to feature either a “date of minimum durability” also expressed as “best before” date, or a “use-by” date also expressed as the “recommended last consumption date” or “expiration date,” depending on the type of food product.

ACTION OPPORTUNITY: Despite aligning with the best practice of having standard labels for quality versus safety as provided in the 2018 update to the Codex Alimentarius General Standard for the Labeling of Prepackaged Foods. None of the regulations governing date labeling in Kenya expressly permit past-date donation of food with a quality date. Kenya should amend the Labelling of Pre-packaged Foods – General Requirements under the Food, Drugs and Chemical Substances Act to explicitly permit the donation of food after the quality-based date. In addition, the government could promote education and awareness on the meaning of date labels.

KENYA FOOD DONATION POLICY OPPORTUNITIES

TAX INCENTIVES AND BARRIERS: Kenya’s Income Tax Act (Cap. 470) does not provide any incentives for in-kind donations, such as donations of food. The Income Tax Act only allows corporate and individual donors to claim a deduction for any cash donation of income to a registered qualifying charitable organization. Further, for most commercial transactions, including the sale of food, vendors must incorporate VAT. Kenya’s VAT system provides two categories of exceptions to taxable supplies that directly impact food products, which is exempt and zero-rated supplies. Certain foods in Kenya are exempt or zero-rated, while some food products are both exempt and zero-rated.

ACTION OPPORTUNITY: To ensure businesses (both donors and distributors) receive proper tax incentives and sufficient information to participate in food donation, the Kenyan government should expand Kenya’s Income Tax Act’s income tax deduction to include in-kind donations to food recovery organizations. As an alternative, the government could offer tax credits for food donations made to food recovery organizations and intermediaries. In addition, Kenya should categorize food donation as a zero-rated supply under the Value Added Tax Act and provide a tax deduction for activities associated with the storage, transportation and delivery of donated food. Lastly, the Kenyan government could develop tax guidance for food donors and food recovery organizations clarifying exemptions.

FOOD SAFETY FOR FOOD DONATIONS: In Kenya, food safety laws are mostly contained in the Public Health Act (PHA) and the Food, Drugs, and Chemical Substances Act (FDCSA). While the PHA and FDCSA do not explicitly include food donation in its scope, existing food safety rules are broad in scope and presumably apply to food donations. However, food donations are not explicitly mentioned in law or guidance.

ACTION OPPORTUNITY: Kenya should amend the Food, Drugs and Chemical Substances Act (FDCSA) to feature a donation-specific chapter or draft regulations related to the FDCSA that elaborate on food safety for donations. The Kenyan government could also produce and disseminate clarifying guidance on food safety requirements relevant to donation.

LIABILITY PROTECTION FOR FOOD DONATIONS: Kenya does not provide explicit legal protections for food donors and food recovery organizations. Generally, claims of harm arising from goods, including food may be brought under the Competition Act and the Consumer Protection Act.

Report courtesy of the Global Food Donation Policy Atlas (https://atlas.foodbanking.org/).

Download Full Report HERE.