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Full Text of HB3063  100th General Assembly

HB3063 100TH GENERAL ASSEMBLY

  
  

 


 
100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3063

 

Introduced , by Rep. Will Guzzardi

 

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

    Amends the Food Handling Regulation Enforcement Act. Makes changes to provisions concerning farmers' markets. Provides that the Department of Public Health shall work with the Farmers' Market Task Force to address farmers' market vendor complaints regarding the reasonableness of local health departments' fees and sanitation provisions. Provides that farmers' market vendors shall provide effective means to maintain potentially hazardous food at a specified temperature. Provides that handwashing stations may be shared by farmers' market vendors. Makes changes to provisions concerning cottage food operations. Changes references from "cottage food operation" to "producer". Makes changes to provisions concerning the regulation of producers. Add provisions concerning the kinds of transactions exempt from specified regulation. Removes provisions concerning potentially hazardous foods. Removes an exemption from provisions concerning the regulation of producers that applies when the gross receipts from the sale of food do not exceed $36,000 in a calendar year. Provides that no later than December 31, 2017, the Department shall include in the Department's cottage food operation application form a statement containing specified content. Makes changes to definitions. Makes other changes.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB3063LRB100 07812 MJP 17879 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 as follows:
 
6    (410 ILCS 625/3.3)
7    Sec. 3.3. Farmers' markets.
8    (a) The General Assembly finds as follows:
9        (1) Farmers' markets, as defined in subsection (b) of
10    this Section, provide not only a valuable marketplace for
11    farmers and food artisans to sell their products directly
12    to consumers, but also a place for consumers to access
13    fresh fruits, vegetables, and other agricultural products.
14        (2) Farmers' markets serve as a stimulator for local
15    economies and for thousands of new businesses every year,
16    allowing farmers to sell directly to consumers and capture
17    the full retail value of their products. They have become
18    important community institutions and have figured in the
19    revitalization of downtown districts and rural
20    communities.
21        (3) Since 1999, the number of farmers' markets has
22    tripled and new ones are being established every year.
23    There is a lack of consistent regulation from one county to

 

 

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1    the next, resulting in confusion and discrepancies between
2    counties regarding how products may be sold.
3        (4) In 1999, the Department of Public Health published
4    Technical Information Bulletin/Food #30 in order to
5    outline the food handling and sanitation guidelines
6    required for farmers' markets, producer markets, and other
7    outdoor food sales events.
8        (5) While this bulletin was revised in 2010, there
9    continues to be inconsistencies, confusion, and lack of
10    awareness by consumers, farmers, markets, and local health
11    authorities of required guidelines affecting farmers'
12    markets from county to county.
13        (6) Recognizing that farmers' markets serve as small
14    business incubators and that farmers' profit margins
15    frequently are narrow-even in direct-to-consumer
16    retail-protecting farmers from costs of regulation that
17    are disproportionate to their profits will help ensure the
18    continued viability of these local farms and small
19    businesses.
20    (b) For the purposes of this Section:
21    "Department" means the Department of Public Health.
22    "Director" means the Director of Public Health.
23    "Farmers' market" means a common facility or area where the
24primary purpose is for farmers to gather to sell a variety of
25fresh fruits and vegetables and other locally produced farm and
26food products directly to consumers.

 

 

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1    "Potentially hazardous food" means a food that is
2potentially hazardous according to the Department's
3administrative rules. Potentially hazardous food in general
4means a food that requires time and temperature control for
5safety to limit pathogenic microorganism growth or toxin
6formation;
7    (c) In order to facilitate the orderly and uniform
8statewide implementation and affordability of the standards
9established in the Department's Department of Public Health's
10administrative rules for this Section, the Farmers' Market Task
11Force shall be formed by the Director to assist the Department
12in implementing statewide administrative regulations for
13farmers' markets.
14    (d) This Section does not intend and shall not be construed
15to limit the power of counties, municipalities, and other local
16government units to regulate farmers' markets for the
17protection of the public health, safety, morals, and welfare,
18including, but not limited to, licensing requirements and time,
19place, and manner restrictions, except as specified in this
20Act. This Section provides for a statewide scheme for the
21orderly and consistent interpretation of the Department's
22Department of Public Health administrative rules pertaining to
23the safety of food and food products sold at farmers' markets.
24    (e) The Farmers' Market Task Force shall consist of at
25least 24 members appointed within 60 days after August 16, 2011
26(the effective date of this Section). Task Force members shall

 

 

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1consist of:
2        (1) one person appointed by the President of the
3    Senate;
4        (2) one person appointed by the Minority Leader of the
5    Senate;
6        (3) one person appointed by the Speaker of the House of
7    Representatives;
8        (4) one person appointed by the Minority Leader of the
9    House of Representatives;
10        (5) the Director of Public Health or his or her
11    designee;
12        (6) the Director of Agriculture or his or her designee;
13        (7) a representative of a general agricultural
14    production association appointed by the Department of
15    Agriculture;
16        (8) three representatives of local county public
17    health departments appointed by the Director and selected
18    from 3 different counties representing each of the
19    northern, central, and southern portions of this State;
20        (9) four members of the general public who are engaged
21    in local farmers' markets appointed by the Director of
22    Agriculture;
23        (10) a representative of an association representing
24    public health administrators appointed by the Director;
25        (11) a representative of an organization of public
26    health departments that serve the City of Chicago and the

 

 

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1    counties of Cook, DuPage, Kane, Kendall, Lake, McHenry,
2    Will, and Winnebago appointed by the Director;
3        (12) a representative of a general public health
4    association appointed by the Director;
5        (13) the Director of Commerce and Economic Opportunity
6    or his or her designee;
7        (14) the Lieutenant Governor or his or her designee;
8    and
9        (15) five farmers who sell their farm products at
10    farmers' markets appointed by the Lieutenant Governor or
11    his or her designee.
12    Task Force members' terms shall be for a period of 2 years,
13with ongoing appointments made according to the provisions of
14this Section.
15    (f) The Task Force shall be convened by the Director or his
16or her designee. Members shall elect a Task Force Chair and
17Co-Chair.
18    (g) Meetings may be held via conference call, in person, or
19both. Three members of the Task Force may call a meeting as
20long as a 5-working-day notification is sent via mail, e-mail,
21or telephone call to each member of the Task Force.
22    (h) Members of the Task Force shall serve without
23compensation.
24    (i) The Task Force shall undertake a comprehensive and
25thorough review of the current Statutes and administrative
26rules that define which products and practices are permitted

 

 

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1and which products and practices are not permitted at farmers'
2markets and to assist the Department in developing statewide
3administrative regulations for farmers' markets.
4    (j) The Task Force shall advise the Department regarding
5the content of any administrative rules adopted under this
6Section and Sections 3.4, 3.5, and 4 of this Act prior to
7adoption of the rules. Any administrative rules, except
8emergency rules adopted pursuant to Section 5-45 of the
9Illinois Administrative Procedure Act, adopted under this
10Section without obtaining the advice of the Task Force are null
11and void. If the Department fails to follow the advice of the
12Task Force, the Department shall, prior to adopting the rules,
13transmit a written explanation to the Task Force. If the Task
14Force, having been asked for its advice, fails to advise the
15Department within 90 days after receiving the rules for review,
16the rules shall be considered to have been approved by the Task
17Force.
18    (k) The Department of Public Health shall provide staffing
19support to the Task Force and shall help to prepare, print, and
20distribute all reports deemed necessary by the Task Force.
21    (l) The Task Force may request assistance from any entity
22necessary or useful for the performance of its duties. The Task
23Force shall issue a report annually to the Secretary of the
24Senate and the Clerk of the House.
25    (m) The following provisions shall apply concerning
26statewide farmers' market food safety guidelines:

 

 

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1        (1) The Director, in accordance with this Section,
2    shall adopt administrative rules (as provided by the
3    Illinois Administrative Procedure Act) for foods found at
4    farmers' markets.
5        (2) The rules and regulations described in this Section
6    shall be consistently enforced by local health authorities
7    throughout the State.
8        (2.5) Notwithstanding any other provision of law
9    except as provided in this Section, local public health
10    departments and all other units of local government are
11    prohibited from creating sanitation guidelines, rules, or
12    regulations for farmers' markets that are more stringent
13    than those farmers' market sanitation regulations
14    contained in the administrative rules adopted by the
15    Department for the purposes of implementing this Section
16    and Sections 3.4, 3.5, and 4 of this Act. Except as
17    provided for in Sections 3.4 and 4 of this Act, this
18    Section does not intend and shall not be construed to limit
19    the power of local health departments and other government
20    units from requiring licensing and permits for the sale of
21    commercial food products, processed food products,
22    prepared foods, and potentially hazardous foods at
23    farmers' markets or conducting related inspections and
24    enforcement activities, so long as those permits and
25    licenses do not include unreasonable fees or sanitation
26    provisions and rules that are more stringent than those

 

 

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1    laid out in the administrative rules adopted by the
2    Department for the purposes of implementing this Section
3    and Sections 3.4, 3.5, and 4 of this Act.
4        (2.6) The Department shall work with the Task Force to
5    address farmers' market vendor complaints regarding the
6    reasonableness of local health departments' fees and
7    sanitation provisions through such means as comparison
8    with other local health departments and requests for
9    written justification from any local health department
10    indicated in a complaint. The Task Force and Department
11    shall resolve such complaints in a manner consistent with
12    the purposes of this Act to provide uniform statewide
13    implementation and affordability of farmers' market rules.
14        (3) In the case of alleged non-compliance with the
15    provisions described in this Section, local health
16    departments shall issue written notices to vendors and
17    market managers of any noncompliance issues.
18        (4) Produce and food products coming within the scope
19    of the provisions of this Section shall include, but not be
20    limited to, raw agricultural products, including fresh
21    fruits and vegetables; popcorn, grains, seeds, beans, and
22    nuts that are whole, unprocessed, unpackaged, and
23    unsprouted; fresh herb springs and dried herbs in bunches;
24    baked goods sold at farmers' markets; cut fruits and
25    vegetables; milk and cheese products; ice cream; syrups;
26    wild and cultivated mushrooms; apple cider and other fruit

 

 

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

 

 

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1specified in Section 3.4 of this Act.
2    (r) In addition to any rules adopted pursuant to subsection
3(p) of this Section, the following provisions shall be applied
4uniformly throughout the State:
5        (1) Farmers market vendors shall provide effective
6    means to maintain potentially hazardous food at 41 degrees
7    Fahrenheit or below. As an alternative to mechanical
8    refrigeration, an effectively insulated, hard-sided,
9    cleanable container with sufficient ice or other cooling
10    means that is intended for the storage of potentially
11    hazardous food shall be used. Local health departments
12    shall not limit vendors' choice of refrigeration or cooling
13    equipment and shall not charge a fee or for use of such
14    equipment.
15        (2) Handwashing stations may be shared by farmers'
16    market vendors.
17(Source: P.A. 98-660, eff. 6-23-14; 99-9, eff. 7-10-15; 99-191,
18eff. 1-1-16; 99-642, eff. 7-28-16.)
 
19    (410 ILCS 625/4)
20    Sec. 4. Direct-to-consumer food sales Cottage food
21operation.
22    (a) For the purpose of this Section:
23    "Cottage food operation" means an operation conducted by a
24person who produces or packages non-potentially hazardous food
25or drink in a kitchen located in that person's primary domestic

 

 

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1residence or another appropriately designed and equipped
2residential or commercial-style kitchen on that property for
3direct sale by the owner, a family member, or employee stored
4in the residence or appropriately designed and equipped
5residential or commercial-style kitchen on that property where
6the food is made.
7    "Delivery" means the transfer of a product resulting from a
8transaction between a producer and an informed end consumer.
9The delivery may occur by the producer's designated agent at a
10farm, ranch, farmers' market, home, office or any location
11agreed to between the producer and the informed end consumer.
12    "Department" means the Department of Public Health.
13    "Farmers' market" means a common facility or area where
14farmers gather to sell a variety of fresh fruits and vegetables
15and other locally produced farm and food products directly to
16consumers.
17    "Home consumption" means consumed within a private home or
18food from a private home that is only consumed by family
19members, employees, or nonpaying guests.
20    "Informed end consumer" means a person who is the last
21person to purchase any product, who does not resell the product
22and who has been informed that the product is not licensed,
23regulated or inspected.
24    "Main ingredient" means an agricultural product that is the
25defining or distinctive ingredient in a cottage food product,
26though not necessarily by predominance of weight.

 

 

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1    "Potentially hazardous food" means a food that is
2potentially hazardous according to the Department's
3administrative rules. Potentially hazardous food (PHF) in
4general means a food that requires time and temperature control
5for safety (TCS) to limit pathogenic microorganism growth or
6toxin formation.
7    "Producer" means any person who harvests or produces any
8product which may be consumed as food or drink.
9    "Transaction" means the exchange of buying and selling.
10    (b) Notwithstanding any other provision of law and except
11as provided in subsections (c), (d), and (e), and (f) of this
12Section, neither the Department nor the Department of
13Agriculture nor the health department of a unit of local
14government may regulate the transaction service of food or
15drink by a producer cottage food operation providing that all
16of the following conditions are met:
17        (1) Transactions under this Section shall:
18            (A) be directly between the producer and the
19        informed end consumer;
20            (B) only be for home consumption;
21            (C) occur only in Illinois;
22            (D) not involve interstate commerce;
23            (E) not involve the sale of meat products, except:
24                (i) the sale of poultry and poultry products
25            consistent with this Article;
26                (ii) the sale of live animals intended for

 

 

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1            slaughter;
2                (iii) the sale of portions of animals for
3            future delivery provided that the processing of
4            the animals is done by the purchaser or by an
5            Illinois or federally licensed processing
6            facility.
7        (1) The food is a non-potentially hazardous baked good,
8    jam, jelly, preserve, fruit butter, dry herb, dry herb
9    blend, dry tea blend, or similar product as adopted and
10    specified by Department rules pursuant to subsection (e) of
11    this Section, and is intended for end-use only. The
12    following provisions shall apply:
13            (A) The following jams, jellies and preserves are
14        allowed: apple, apricot, grape, peach, plum, quince,
15        orange, nectarine, tangerine, blackberry, raspberry,
16        blueberry, boysenberry, cherry, cranberry, strawberry,
17        red currants, or a combination of these fruits. Any
18        other jams, jellies, or preserves not listed may be
19        produced by a cottage food operation provided their
20        recipe has been tested and documented by a commercial
21        laboratory, at the expense of the cottage food
22        operation, as being not potentially hazardous,
23        containing a pH equilibrium of less than 4.6 or has
24        been specified and adopted as allowed in
25        administrative rules by the Department pursuant to
26        subsection (e) of this Section.

 

 

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

 

 

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

 

 

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1        produced in a home kitchen not subject to public health
2        inspection that may also process common food
3        allergens.";
4            (E) the date the product was processed; and
5            (F) allergen labeling as specified in federal
6        labeling requirements.
7        (3) (5) The name and residence of the person preparing
8    and selling products as a cottage food operation is
9    registered with the health department of a unit of local
10    government where the cottage food producer operation
11    resides. No fees shall be charged for registration.
12    Registration shall be for a minimum period of one year.
13        (4) (6) The person preparing or packaging products as a
14    cottage food operation has a Department approved Food
15    Service Sanitation Management Certificate.
16        (5)The producer informs the end consumer that any food
17    product or food sold at a farmers' market or through ranch,
18    farm or home based sales pursuant to this section is not
19    certified, labeled, licensed, packaged, regulated or
20    inspected, and, if cottage foods are offered for sale, at
21    (7) At the point of sale a placard is displayed in a
22    prominent location that states the following: "This
23    product was produced in a home kitchen not subject to
24    public health inspection that may also process common food
25    allergens.".
26    (c) Except for raw, unprocessed fruit and vegetables, food

 

 

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1shall not be sold or used in any commercial food establishment
2other than farmers' markets, unless the food has been labeled,
3licensed, packaged, regulated, or inspected as required by law.
4    (d) Notwithstanding the provisions of subsection (b) of
5this Section, if the Department or the health department of a
6unit of local government has received a consumer complaint or
7has reason to believe that an imminent health hazard exists or
8that a cottage food operation's product has been found to be
9misbranded, adulterated, or not in compliance with the
10exception for cottage food operations pursuant to this Section,
11then it may invoke cessation of sales until it deems that the
12situation has been addressed to the satisfaction of the
13Department.
14    (e) (d) Notwithstanding the provisions of subsection (b) of
15this Section, a State-certified local public health department
16may, upon providing a written statement to the Department,
17regulate the service of food by a cottage food operation. The
18regulation by a State-certified local public health department
19may include all of the following requirements:
20        (1) That the cottage food operation (A) register with
21    the State-certified local public health department, which
22    shall be for a minimum of one year and include a reasonable
23    fee set by the State-certified local public health
24    department that is no greater than $25 notwithstanding
25    paragraph (3) (5) of subsection (b) of this Section and (B)
26    agree in writing at the time of registration to grant

 

 

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1    access to the State-certified local public health
2    department to conduct an inspection of the cottage food
3    operation's primary domestic residence in the event of a
4    consumer complaint or foodborne illness outbreak.
5        (2) That in the event of a consumer complaint or
6    foodborne illness outbreak the State-certified local
7    public health department is allowed to (A) inspect the
8    premises of the cottage food operation in question and (B)
9    set a reasonable fee for that inspection.
10    (f) (e) The Department may adopt rules as may be necessary
11to implement the provisions of this Section. No later than
12December 31, 2018, the Department shall include in the
13Department's cottage food operation application form a
14statement expressing that the cottage food producer
15understands that food safety is the responsibility of the
16cottage food operation and that such producer is strongly
17encouraged to seek liability insurance and additional
18voluntary food safety training pertaining to the food items
19prepared by the cottage food operation. This statement shall be
20followed with a signature line affirming the applicant's
21understanding.
22(Source: P.A. 98-660, eff. 6-23-14; 99-191, eff. 1-1-16.)