103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3544

 

Introduced 2/9/2024, by Sen. Jason Plummer

 

SYNOPSIS AS INTRODUCED:
 
410 ILCS 625/4

    Amends the Food Handling Regulation Enforcement Act. Provides that, if a county government does not have a local health department, the county government shall enter into an agreement or contract with an adjacent local health department to register cottage food operations in the county's jurisdiction. Provides that the adjacent local health department where the cottage food operation registers has the power to take specified actions pertaining to complaints, inspections, fees, and penalties. Specifies, in a provision requiring cottage food operations to sell directly to consumers, that sales directly to consumers include, among other things, sales at or through mobile farmers markets with the consent of the third-party property holder. Defines "mobile farmers market".


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STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT
MAY APPLY

 

 

A BILL FOR

 

SB3544LRB103 38723 CES 69552 b

1    AN ACT concerning health.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Food Handling Regulation Enforcement Act is
5amended by changing Section 4 as follows:
 
6    (410 ILCS 625/4)
7    Sec. 4. Cottage food operation.
8    (a) For the purpose of this Section:
9    A food is "acidified" if: (i) acid or acid ingredients are
10added to it to produce a final equilibrium pH of 4.6 or below;
11or (ii) it is fermented to produce a final equilibrium pH of
124.6 or below.
13    "Canned food" means food that has been heat processed
14sufficiently under United States Department of Agriculture
15guidelines to enable storing the food at normal home
16temperatures.
17    "Cottage food operation" means an operation conducted by a
18person who produces or packages food or drink, other than
19foods and drinks listed as prohibited in paragraph (1.5) of
20subsection (b) of this Section, in a kitchen located in that
21person's primary domestic residence or another appropriately
22designed and equipped kitchen on a farm for direct sale by the
23owner, a family member, or employee.

 

 

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1    "Cut leafy greens" means fresh leafy greens whose leaves
2have been cut, shredded, sliced, chopped, or torn. "Cut leafy
3greens" does not mean cut-to-harvest leafy greens.
4    "Department" means the Department of Public Health.
5    "Equilibrium pH" means the final potential of hydrogen
6measured in an acidified food after all the components of the
7food have achieved the same acidity.
8    "Farmers' market" means a common facility or area where
9farmers gather to sell a variety of fresh fruits and
10vegetables and other locally produced farm and food products
11directly to consumers.
12    "Leafy greens" includes iceberg lettuce; romaine lettuce;
13leaf lettuce; butter lettuce; baby leaf lettuce, such as
14immature lettuce or leafy greens; escarole; endive; spring
15mix; spinach; cabbage; kale; arugula; and chard. "Leafy
16greens" does not include microgreens or herbs such as cilantro
17or parsley.
18    "Local health department" means a State-certified health
19department of a unit of local government in which a cottage
20food operation is located or, if the cottage food operation is
21located in a county that does not have a local health
22department, is registered.
23    "Local public health department association" means an
24association solely representing 2 or more State-certified
25local health departments.
26    "Low-acid canned food" means any canned food with a

 

 

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1finished equilibrium pH greater than 4.6 and a water activity
2(aw) greater than 0.85.
3    "Microgreen" means an edible plant seedling grown in soil
4or substrate and harvested above the soil or substrate line.
5    "Mobile farmers market" means a farmers market that is
6operated from a movable motor drive or propelled vehicle or
7portable structure that can change location. A mobile farmers
8market may be owned and operated by a farmer, farmer
9cooperative, or a third-party selling products on commission
10with the intent of a direct sale to an end consumer.
11    "Potentially hazardous food" means a food that is
12potentially hazardous according to the Department's
13administrative rules. Potentially hazardous food (PHF) in
14general means a food that requires time and temperature
15control for safety (TCS) to limit pathogenic microorganism
16growth or toxin formation.
17    "Sprout" means any seedling intended for human consumption
18that was produced in a manner that does not meet the definition
19of microgreen.
20    (b) A cottage food operation may produce homemade food and
21drink provided that all of the following conditions are met:
22        (1) (Blank).
23        (1.3) A cottage food operation must register with the
24    local health department for the unit of local government
25    in which it is located, but may sell products outside of
26    the unit of local government where the cottage food

 

 

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1    operation is located. If a county government does not have
2    a local health department, the county government shall
3    enter into an agreement or contract with an adjacent local
4    health department to register cottage food operations in
5    the county's jurisdiction. The adjacent local health
6    department where the cottage food operation registers has
7    the power to take the actions specified in subsection (d).
8    A copy of the certificate of registration must be
9    available upon request by any local health department.
10        (1.5) A cottage food operation shall not sell or offer
11    to sell the following food items or processed foods
12    containing the following food items, except as indicated:
13            (A) meat, poultry, fish, seafood, or shellfish;
14            (B) dairy, except as an ingredient in a
15        non-potentially hazardous baked good or candy, such as
16        caramel, subject to paragraph (4), or as an ingredient
17        in a baked good frosting, such as buttercream;
18            (C) eggs, except as an ingredient in a
19        non-potentially hazardous food, including dry noodles,
20        or as an ingredient in a baked good frosting, such as
21        buttercream, if the eggs are not raw;
22            (D) pumpkin pies, sweet potato pies, cheesecakes,
23        custard pies, creme pies, and pastries with
24        potentially hazardous fillings or toppings;
25            (E) garlic in oil or oil infused with garlic,
26        except if the garlic oil is acidified;

 

 

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1            (F) low-acid canned foods;
2            (G) sprouts;
3            (H) cut leafy greens, except for cut leafy greens
4        that are dehydrated, acidified, or blanched and
5        frozen;
6            (I) cut or pureed fresh tomato or melon;
7            (J) dehydrated tomato or melon;
8            (K) frozen cut melon;
9            (L) wild-harvested, non-cultivated mushrooms;
10            (M) alcoholic beverages; or
11            (N) kombucha.
12        (1.6) In order to sell canned tomatoes or a canned
13    product containing tomatoes, a cottage food operator shall
14    either:
15            (A) follow exactly a recipe that has been tested
16        by the United States Department of Agriculture or by a
17        state cooperative extension located in this State or
18        any other state in the United States; or
19            (B) submit the recipe, at the cottage food
20        operator's expense, to a commercial laboratory
21        according to the commercial laboratory's directions to
22        test that the product has been adequately acidified;
23        use only the varietal or proportionate varietals of
24        tomato included in the tested recipe for all
25        subsequent batches of such recipe; and provide
26        documentation of the annual test results of the recipe

 

 

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1        submitted under this subparagraph upon registration
2        and to an inspector upon request during any inspection
3        authorized by subsection (d).
4        (2) In order to sell a fermented or acidified food, a
5    cottage food operation shall either:
6            (A) submit a recipe that has been tested by the
7        United States Department of Agriculture or a
8        cooperative extension system located in this State or
9        any other state in the United States; or
10            (B) submit a written food safety plan for each
11        category of products for which the cottage food
12        operator uses the same procedures, such as pickles,
13        kimchi, or hot sauce, and a pH test for a single
14        product that is representative of that category; the
15        written food safety plan shall be submitted annually
16        upon registration and each pH test shall be submitted
17        every 3 years; the food safety plan shall adhere to
18        guidelines developed by the Department.
19        (3) A fermented or acidified food shall be packaged
20    according to one of the following standards:
21            (A) A fermented or acidified food that is canned
22        must be processed in a boiling water bath in a
23        Mason-style jar or glass container with a
24        tight-fitting lid.
25            (B) A fermented or acidified food that is not
26        canned shall be sold in any container that is new,

 

 

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1        clean, and seals properly and must be stored,
2        transported, and sold at or below 41 degrees.
3        (4) In order to sell a baked good with cheese, a local
4    health department may require a cottage food operation to
5    submit a recipe, at the cottage food operator's expense,
6    to a commercial laboratory to verify that it is
7    non-potentially hazardous before allowing the cottage food
8    operation to sell the baked good as a cottage food.
9        (5) For a cottage food operation that does not utilize
10    a municipal water supply, such as an operation using a
11    private well, a local health department may require a
12    water sample test to verify that the water source being
13    used meets public safety standards related to E. coli
14    coliform. If a test is requested, it must be conducted at
15    the cottage food operator's expense.
16        (6) A person preparing or packaging a product as part
17    of a cottage food operation must be a Department-approved
18    certified food protection manager.
19        (7) Food packaging must conform with the labeling
20    requirements of the Illinois Food, Drug and Cosmetic Act.
21    A cottage food product shall be prepackaged and the food
22    packaging shall be affixed with a prominent label that
23    includes the following:
24            (A) the name of the cottage food operation and
25        unit of local government in which the cottage food
26        operation is located;

 

 

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1            (B) the identifying registration number provided
2        by the local health department on the certificate of
3        registration and the name of the municipality or
4        county in which the registration was filed;
5            (C) the common or usual name of the food product;
6            (D) all ingredients of the food product, including
7        any color, artificial flavor, and preservative, listed
8        in descending order by predominance of weight shown
9        with the common or usual names;
10            (E) the following phrase in prominent lettering:
11        "This product was produced in a home kitchen not
12        inspected by a health department that may also process
13        common food allergens. If you have safety concerns,
14        contact your local health department.";
15            (F) the date the product was processed; and
16            (G) allergen labeling as specified under federal
17        labeling requirements.
18        (8) Food packaging may include the designation
19    "Illinois-grown", "Illinois-sourced", or "Illinois farm
20    product" if the packaged product is a local farm or food
21    product as that term is defined in Section 5 of the Local
22    Food, Farms, and Jobs Act.
23        (9) In the case of a product that is difficult to
24    properly label or package, or for other reasons, the local
25    health department of the location where the product is
26    sold may grant permission to sell products that are not

 

 

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1    prepackaged, in which case other prominent written notice
2    shall be provided to the purchaser.
3        (10) At the point of sale, notice must be provided in a
4    prominent location that states the following: "This
5    product was produced in a home kitchen not inspected by a
6    health department that may also process common food
7    allergens." At a physical display, notice shall be a
8    placard. Online, notice shall be a message on the cottage
9    food operation's online sales interface at the point of
10    sale.
11        (11) Food and drink produced by a cottage food
12    operation shall be sold directly to consumers for their
13    own consumption and not for resale. Sales directly to
14    consumers include, but are not limited to, sales at or
15    through:
16            (A) farmers' markets;
17            (B) fairs, festivals, public events, or online;
18            (C) pickup from the private home or farm of the
19        cottage food operator, if the pickup is not prohibited
20        by any law of the unit of local government that applies
21        equally to all cottage food operations; in a
22        municipality with a population of 1,000,000 or more, a
23        cottage food operator shall comply with any law of the
24        municipality that applies equally to all home-based
25        businesses;
26            (D) delivery to the customer; and

 

 

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1            (E) pickup from a third-party private property
2        with the consent of the third-party property holder;
3        and .
4            (F) mobile farmers markets.
5        (12) Only food that is non-potentially hazardous may
6    be shipped. A cottage food product shall not be shipped
7    out of State. Each cottage food product that is shipped
8    must be sealed in a manner that reveals tampering,
9    including, but not limited to, a sticker or pop top.
10    (c) A local health department shall register any eligible
11cottage food operation that meets the requirements of this
12Section and shall issue a certificate of registration with an
13identifying registration number to each registered cottage
14food operation. A local health department may establish a
15self-certification program for cottage food operators to
16affirm compliance with applicable laws, rules, and
17regulations. Registration shall be completed annually and the
18local health department may impose a fee not to exceed $50.
19    (d) In the event of a consumer complaint or foodborne
20illness outbreak, upon notice from a different local health
21department, or if the Department or a local health department
22has reason to believe that an imminent health hazard exists or
23that a cottage food operation's product has been found to be
24misbranded, adulterated, or not in compliance with the
25conditions for cottage food operations set forth in this
26Section, the Department or the local health department may:

 

 

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1        (1) inspect the premises of the cottage food operation
2    in question;
3        (2) set a reasonable fee for the inspection; and
4        (3) invoke penalties and the cessation of the sale of
5    cottage food products until it deems that the situation
6    has been addressed to the satisfaction of the Department
7    or local health department; if the situation is not
8    amenable to being addressed, the local health department
9    may revoke the cottage food operation's registration
10    following a process outlined by the local health
11    department.
12    (e) A local health department that receives a consumer
13complaint or a report of foodborne illness related to a
14cottage food operator in another jurisdiction shall refer the
15complaint or report to the local health department where the
16cottage food operator is registered.
17    (f) By January 1, 2022, the Department, in collaboration
18with local public health department associations and other
19stakeholder groups, shall write and issue administrative
20guidance to local health departments on the following:
21        (1) development of a standard registration form,
22    including, if applicable, a written food safety plan;
23        (2) development of a Home-Certification Self Checklist
24    Form;
25        (3) development of a standard inspection form and
26    inspection procedures; and

 

 

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1        (4) procedures for cottage food operation workspaces
2    that include, but are not limited to, cleaning products,
3    general sanitation, and requirements for functional
4    equipment.
5    (g) A person who produces or packages a non-potentially
6hazardous baked good for sale by a religious, charitable, or
7nonprofit organization for fundraising purposes is exempt from
8the requirements of this Section.
9    (h) A home rule unit may not regulate cottage food
10operations in a manner inconsistent with the regulation by the
11State of cottage food operations under this Section. This
12Section is a limitation under subsection (i) of Section 6 of
13Article VII of the Illinois Constitution on the concurrent
14exercise by home rule units of powers and functions exercised
15by the State.
16    (i) The Department may adopt rules as may be necessary to
17implement the provisions of this Section.
18(Source: P.A. 101-81, eff. 7-12-19; 102-633, eff. 1-1-22.)