99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB2486

 

Introduced 2/18/2015, by Rep. Michael W. Tryon

 

SYNOPSIS AS INTRODUCED:
 
410 ILCS 625/3.3
410 ILCS 625/3.6
410 ILCS 625/4

    Amends the Food Handling Regulation Enforcement Act. Provides that a home kitchen operation does not include a person who produces or packages non-potentially hazardous baked goods for sale by a religious, charitable, or nonprofit organization for fundraising purposes. Adds additional requirements in order to qualify as a home kitchen operation. Makes changes concerning the jurisdiction of the local governing body over home kitchen operations. Defines a term. Removes a provision prohibiting certain types of jams and jellies from cottage food operations. Increases the gross receipt threshold of exempt food from $25,000 to $36,000. Allows the Department to adopt rules to implement the requirements of the amendatory Act.


LRB099 10188 JLK 30412 b

 

 

A BILL FOR

 

HB2486LRB099 10188 JLK 30412 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 Sections 3.3 and 4 and by renumbering and
6changing Section 3.4 as added by Public Act 98-643 as follows:
 
7    (410 ILCS 625/3.3)
8    Sec. 3.3. Farmers' markets.
9    (a) The General Assembly finds as follows:
10        (1) Farmers' markets, as defined in subsection (b) of
11    this Section, provide not only a valuable marketplace for
12    farmers and food artisans to sell their products directly
13    to consumers, but also a place for consumers to access
14    fresh fruits, vegetables, and other agricultural products.
15        (2) Farmers' markets serve as a stimulator for local
16    economies and for thousands of new businesses every year,
17    allowing farmers to sell directly to consumers and capture
18    the full retail value of their products. They have become
19    important community institutions and have figured in the
20    revitalization of downtown districts and rural
21    communities.
22        (3) Since 1999, the number of farmers' markets has
23    tripled and new ones are being established every year.

 

 

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1    There is a lack of consistent regulation from one county to
2    the next, resulting in confusion and discrepancies between
3    counties regarding how products may be sold.
4        (4) In 1999, the Department of Public Health published
5    Technical Information Bulletin/Food #30 in order to
6    outline the food handling and sanitation guidelines
7    required for farmers' markets, producer markets, and other
8    outdoor food sales events.
9        (5) While this bulletin was revised in 2010, there
10    continues to be inconsistencies, confusion, and lack of
11    awareness by consumers, farmers, markets, and local health
12    authorities of required guidelines affecting farmers'
13    markets from county to county.
14    (b) For the purposes of this Section:
15    "Department" means the Department of Public Health.
16    "Director" means the Director of Public Health.
17    "Farmers' market" means a common facility or area where the
18primary purpose is for farmers to gather to sell a variety of
19fresh fruits and vegetables and other locally produced farm and
20food products directly to consumers.
21    (c) In order to facilitate the orderly and uniform
22statewide implementation of the standards established in the
23Department of Public Health's administrative rules for this
24Act, the Farmers' Market Task Force shall be formed by the
25Director to assist the Department in implementing statewide
26administrative regulations for farmers' markets.

 

 

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1    (d) This Act does not intend and shall not be construed to
2limit the power of counties, municipalities, and other local
3government units to regulate farmers' markets for the
4protection of the public health, safety, morals, and welfare,
5including, but not limited to, licensing requirements and time,
6place, and manner restrictions. This Act provides for a
7statewide scheme for the orderly and consistent interpretation
8of the Department of Public Health administrative rules
9pertaining to the safety of food and food products sold at
10farmers' markets.
11    (e) The Farmers' Market Task Force shall consist of at
12least 24 members appointed within 60 days after the effective
13date of this Section. Task Force members shall consist of:
14        (1) one person appointed by the President of the
15    Senate;
16        (2) one person appointed by the Minority Leader of the
17    Senate;
18        (3) one person appointed by the Speaker of the House of
19    Representatives;
20        (4) one person appointed by the Minority Leader of the
21    House of Representatives;
22        (5) the Director of Public Health or his or her
23    designee;
24        (6) the Director of Agriculture or his or her designee;
25        (7) a representative of a general agricultural
26    production association appointed by the Department of

 

 

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1    Agriculture;
2        (8) three representatives of local county public
3    health departments appointed by the Director and selected
4    from 3 different counties representing each of the
5    northern, central, and southern portions of this State;
6        (9) four members of the general public who are engaged
7    in local farmers' markets appointed by the Director of
8    Agriculture;
9        (10) a representative of an association representing
10    public health administrators appointed by the Director;
11        (11) a representative of an organization of public
12    health departments that serve the City of Chicago and the
13    counties of Cook, DuPage, Kane, Kendall, Lake, McHenry,
14    Will, and Winnebago appointed by the Director;
15        (12) a representative of a general public health
16    association appointed by the Director;
17        (13) the Director of Commerce and Economic Opportunity
18    or his or her designee;
19        (14) the Lieutenant Governor or his or her designee;
20    and
21        (15) five farmers who sell their farm products at
22    farmers' markets appointed by the Lieutenant Governor or
23    his or her designee.
24    Task Force members' terms shall be for a period of 2 years,
25with ongoing appointments made according to the provisions of
26this Section.

 

 

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1    (f) The Task Force shall be convened by the Director or his
2or her designee. Members shall elect a Task Force Chair and
3Co-Chair.
4    (g) Meetings may be held via conference call, in person, or
5both. Three members of the Task Force may call a meeting as
6long as a 5-working-day notification is sent via mail, e-mail,
7or telephone call to each member of the Task Force.
8    (h) Members of the Task Force shall serve without
9compensation.
10    (i) The Task Force shall undertake a comprehensive and
11thorough review of the current Statutes and administrative
12rules that define which products and practices are permitted
13and which products and practices are not permitted at farmers'
14markets and to assist the Department in developing statewide
15administrative regulations for farmers' markets.
16    (j) The Task Force shall advise the Department regarding
17the content of any administrative rules adopted under this
18Section and Sections 3.4, 3.5, and 4 this Act prior to adoption
19of the rules. Any administrative rules, except emergency rules
20adopted pursuant to Section 5-45 of the Illinois Administrative
21Procedure Act, adopted without obtaining the advice of the Task
22Force are null and void. If the Department fails to follow the
23advice of the Task Force, the Department shall, prior to
24adopting the rules, transmit a written explanation to the Task
25Force. If the Task Force, having been asked for its advice,
26fails to advise the Department within 90 days after receiving

 

 

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1the rules for review, the rules shall be considered to have
2been approved by the Task Force.
3    (k) The Department of Public Health shall provide staffing
4support to the Task Force and shall help to prepare, print, and
5distribute all reports deemed necessary by the Task Force.
6    (l) The Task Force may request assistance from any entity
7necessary or useful for the performance of its duties. The Task
8Force shall issue a report annually to the Secretary of the
9Senate and the Clerk of the House.
10    (m) The following provisions shall apply concerning
11statewide farmers' market food safety guidelines:
12        (1) The Director, in accordance with this Section,
13    shall adopt administrative rules (as provided by the
14    Illinois Administrative Procedure Act) for foods found at
15    farmers' markets.
16        (2) The rules and regulations described in this Act
17    shall be consistently enforced by local health authorities
18    throughout the State.
19        (2.5) Notwithstanding any other provision of law
20    except as provided in this Act, local public health
21    departments and all other units of local government are
22    prohibited from creating sanitation guidelines, rules, or
23    regulations for farmers' markets that are more stringent
24    than those farmers' market sanitation regulations
25    contained in the administrative rules adopted by the
26    Department for the purposes of implementing this Section

 

 

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1    3.3 and Sections 3.4, 3.5, and 4 of this Act. Except as
2    provided for in Sections Section 3.4 and 4 of this Act,
3    this Act does not intend and shall not be construed to
4    limit the power of local health departments and other
5    government units from requiring licensing and permits for
6    the sale of commercial food products, processed food
7    products, prepared foods, and potentially hazardous foods
8    at farmers' markets or conducting related inspections and
9    enforcement activities, so long as those permits and
10    licenses do not include unreasonable fees or sanitation
11    provisions and rules that are more stringent than those
12    laid out in the administrative rules adopted by the
13    Department for the purposes of implementing this Section
14    3.3 and Sections 3.4, 3.5, and 4 of this Act.
15        (3) In the case of alleged non-compliance with the
16    provisions described in this Act, local health departments
17    shall issue written notices to vendors and market managers
18    of any noncompliance issues.
19        (4) Produce and food products coming within the scope
20    of the provisions of this Act shall include, but not be
21    limited to, raw agricultural products, including fresh
22    fruits and vegetables; popcorn, grains, seeds, beans, and
23    nuts that are whole, unprocessed, unpackaged, and
24    unsprouted; fresh herb springs and dried herbs in bunches;
25    baked goods sold at farmers' markets; cut fruits and
26    vegetables; milk and cheese products; ice cream; syrups;

 

 

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1    wild and cultivated mushrooms; apple cider and other fruit
2    and vegetable juices; herb vinegar; garlic-in-oil;
3    flavored oils; pickles, relishes, salsas, and other canned
4    or jarred items; shell eggs; meat and poultry; fish;
5    ready-to-eat foods; commercially produced prepackaged food
6    products; and any additional items specified in the
7    administrative rules adopted by the Department to
8    implement Section 3.3 of this Act.
9    (n) Local health department regulatory guidelines may be
10applied to foods not often found at farmers' markets, all other
11food products not regulated by the Department of Agriculture
12and the Department of Public Health, as well as live animals to
13be sold at farmers' markets.
14    (o) The Task Force shall issue annual reports to the
15Secretary of the Senate and the Clerk of the House with
16recommendations for the development of administrative rules as
17specified. The first report shall be issued no later than
18December 31, 2012.
19    (p) The Department of Public Health and the Department of
20Agriculture, in conjunction with the Task Force, shall adopt
21administrative rules necessary to implement, interpret, and
22make specific the provisions of this Act, including, but not
23limited to, rules concerning labels, sanitation, and food
24product safety according to the realms of their jurisdiction in
25accordance with subsection (j) of this Section. The Task Force
26shall submit recommendations for administrative rules to the

 

 

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1Department no later than December 15, 2014.
2    (q) The Department and the Task Force shall work together
3to create a food sampling training and license program as
4specified in Section 3.4 of this Act.
5(Source: P.A. 97-394, eff. 8-16-11; 98-660, eff. 6-23-14.)
 
6    (410 ILCS 625/3.6)
7    Sec. 3.6 3.4. Home kitchen operation.
8    (a) For the purpose of this Section, "home kitchen
9operation" means a person who produces or packages
10non-potentially hazardous baked goods food in a kitchen of that
11person's primary domestic residence for direct sale by the
12owner or a family member. As used in this Section, "baked good"
13has the meaning given to that term under subparagraph (C) of
14paragraph (1) of subsection (b) of Section 4 of this Act. A
15home kitchen operation does not include a person who produces
16or packages non-potentially hazardous baked goods for sale by a
17religious, charitable, or nonprofit organization for
18fundraising purposes; the production or packaging of
19non-potentially hazardous baked goods for these purposes is
20exempt from the requirements of this Act , or for sale by a
21religious, charitable, or nonprofit organization, stored in
22the residence where the food is made. The following conditions
23must be met in order to qualify as a home kitchen operation:
24        (1) Monthly gross sales do not exceed $1,000.
25        (2) The food is not a non-potentially potentially

 

 

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1    hazardous baked good food, as described defined in Section
2    4 of this Act.
3        (3) A notice is provided to the purchaser that the
4    product was produced in a home kitchen.
5        (4) The food package is affixed with a label that
6    includes:
7            (i) the common or usual name of the food product;
8        and
9            (ii) allergen labeling as specified in federal
10        labeling requirements by the United States Food and
11        Drug Administration.
12        (5) The food is sold directly to the consumer.
13        (6) The food is stored in the residence where it is
14    produced or packaged.
15    (b) The Department of Public Health or the health
16department of a unit of local government may inspect a home
17kitchen operation in the event of a complaint or disease
18outbreak.
19    (c) The requirements of this This Section apply applies
20only to a home kitchen operation located in a municipality,
21township, or county where the local governing body having the
22jurisdiction to enforce this Act or the rules adopted under
23this Act has adopted an ordinance authorizing home kitchen
24operations the direct sale of baked goods as described in
25Section 4 of this Act.
26(Source: P.A. 98-643, eff. 6-10-14; revised 10-20-14.)
 

 

 

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1    (410 ILCS 625/4)
2    Sec. 4. Cottage food operation.
3    (a) For the purpose of this Section:
4    "Cottage food operation" means an operation conducted by a
5person who produces or packages non-potentially hazardous food
6in a kitchen located in that person's primary domestic
7residence or another appropriately designed and equipped
8residential or commercial-style kitchen on that property for
9direct sale by the owner, or a family member, or employee
10stored in the residence or appropriately designed and equipped
11residential or commercial-style kitchen on that property where
12the food is made.
13    "Department" means the Department of Public Health.
14    "Farmers' market" means a common facility or area where
15farmers gather to sell a variety of fresh fruits and vegetables
16and other locally produced farm and food products directly to
17consumers.
18    "Main ingredient" means an agricultural product that is the
19defining or distinctive ingredient in a cottage food product,
20though not necessarily by predominance of weight.
21    "Potentially hazardous food" means a food that is
22potentially hazardous according to the Department's
23administrative rules. Potentially hazardous food (PHF) in
24general means a food that requires time and temperature control
25for safety (TCS) to limit pathogenic microorganism growth or

 

 

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1toxin formation.
2    (b) Notwithstanding any other provision of law and except
3as provided in subsections (c), and (d), and (e) of this
4Section, neither the Department nor the Department of
5Agriculture nor the health department of a unit of local
6government may regulate the service of food by a cottage food
7operation providing that all of the following conditions are
8met:
9        (1) The food is not a non-potentially potentially
10    hazardous baked good, jam, jelly, preserve, fruit butter,
11    dry herb, dry herb blend, or dry tea blend, or similar
12    product as adopted and specified by Department rules
13    pursuant to subsection (e) of this Section, and is intended
14    for end-use only. The following provisions shall apply:
15            (A) The following jams, jellies and preserves are
16        allowed: apple, apricot, grape, peach, plum, quince,
17        orange, nectarine, tangerine, blackberry, raspberry,
18        blueberry, boysenberry, cherry, cranberry, strawberry,
19        red currants, or a combination of these fruits.
20        Rhubarb, tomato, and pepper jellies or jams are not
21        allowed. Any other jams, jellies, or preserves not
22        listed may be produced by a cottage food operation
23        provided their recipe has been tested and documented by
24        a commercial laboratory, at the expense of the cottage
25        food operation, as being not potentially hazardous,
26        containing a pH equilibrium of less than 4.6 or has

 

 

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1        been specified and adopted as allowed in
2        administrative rules by the Department pursuant to
3        subsection (e) of this Section.
4            (B) The following fruit butters are allowed:
5        apple, apricot, grape, peach, plum, quince, and prune.
6        Pumpkin butter, banana butter, and pear butter are not
7        allowed. Fruit butters not listed may be produced by a
8        cottage food operation provided their recipe has been
9        tested and documented by a commercial laboratory, at
10        the expense of the cottage food operation, as being not
11        potentially hazardous, containing a pH equilibrium of
12        less than 4.6 or has been specified and adopted as
13        allowed in administrative rules by the Department
14        pursuant to subsection (e) of this Section.
15            (C) Baked goods, such as, but not limited to,
16        breads, cookies, cakes, pies, and pastries are
17        allowed. Only high-acid fruit pies that use the
18        following fruits are allowed: apple, apricot, grape,
19        peach, plum, quince, orange, nectarine, tangerine,
20        blackberry, raspberry, blueberry, boysenberry, cherry,
21        cranberry, strawberry, red currants or a combination
22        of these fruits. Fruit pies not listed may be produced
23        by a cottage food operation provided their recipe has
24        been tested and documented by a commercial laboratory,
25        at the expense of the cottage food operation, as being
26        not potentially hazardous, containing a pH equilibrium

 

 

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1        of less than 4.6 or has been specified and adopted as
2        allowed in administrative rules by the Department
3        pursuant to subsection (e) of this Section. The
4        following are potentially hazardous and prohibited
5        from production and sale by a cottage food operation:
6        pumpkin pie, sweet potato pie, cheesecake, custard
7        pies, creme pies, and pastries with potentially
8        hazardous fillings or toppings.
9        (2) The food is to be sold at a farmers' market, with
10    the exception that cottage foods that have a locally grown
11    agricultural product as the main ingredient may be sold on
12    the farm where the agricultural product is grown or
13    delivered directly to the consumer.
14        (3) Gross receipts from the sale of food exempted under
15    this Section do not exceed $36,000 $25,000 in a calendar
16    year.
17        (4) The food packaging conforms to the labeling
18    requirements of the Illinois Food, Drug and Cosmetic Act
19    and includes the following information on the label of each
20    of its products:
21            (A) the name and address of the cottage food
22        operation;
23            (B) the common or usual name of the food product;
24            (C) all ingredients of the food product, including
25        any colors, artificial flavors, and preservatives,
26        listed in descending order by predominance of weight

 

 

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1        shown with common or usual names;
2            (D) the following phrase: "This product was
3        produced in a home kitchen not subject to public health
4        inspection that may also process common food
5        allergens.";
6            (E) the date the product was processed; and
7            (F) allergen labeling as specified in federal
8        labeling requirements.
9        (5) The name and residence of the person preparing and
10    selling products as a cottage food operation is registered
11    with the health department of a unit of local government
12    where the cottage food operation resides. No fees shall be
13    charged for registration. Registration shall be for a
14    minimum period of one year.
15        (6) The person preparing or packaging and selling
16    products as a cottage food operation has a Department
17    approved Food Service Sanitation Management Certificate.
18        (7) At the point of sale a placard is displayed in a
19    prominent location that states the following: "This
20    product was produced in a home kitchen not subject to
21    public health inspection that may also process common food
22    allergens.".
23    (c) Notwithstanding the provisions of subsection (b) of
24this Section, if the Department or the health department of a
25unit of local government has received a consumer complaint or
26has reason to believe that an imminent health hazard exists or

 

 

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1that a cottage food operation's product has been found to be
2misbranded, adulterated, or not in compliance with the
3exception for cottage food operations pursuant to this Section,
4then it may invoke cessation of sales until it deems that the
5situation has been addressed to the satisfaction of the
6Department.
7    (d) Notwithstanding the provisions of subsection (b) of
8this Section, a State-certified local public health department
9may, upon providing a written statement to the Department,
10regulate the service of food by a cottage food operation. The
11regulation by a State-certified local public health department
12may include all of the following requirements:
13        (1) That the cottage food operation (A) register with
14    the State-certified local public health department, which
15    shall be for a minimum of one year and include a reasonable
16    fee set by the State-certified local public health
17    department that is no greater than $25 notwithstanding
18    paragraph (5) of subsection (b) of this Section and (B)
19    agree in writing at the time of registration to grant
20    access to the State-certified local public health
21    department to conduct an inspection of the cottage food
22    operation's primary domestic residence in the event of a
23    consumer complaint or foodborne illness outbreak.
24        (2) That in the event of a consumer complaint or
25    foodborne illness outbreak the State-certified local
26    public health department is allowed to (A) inspect the

 

 

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1    premises of the cottage food operation in question and (B)
2    set a reasonable fee for that inspection.
3    (e) The Department may adopt rules as may be necessary to
4implement the provisions of this Section.
5(Source: P.A. 97-393, eff. 1-1-12; 98-660, eff. 6-23-14.)