HB5657 EnrolledLRB098 19064 RPM 54214 b

1    AN ACT concerning public 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 adding Sections
63.4 and 3.5 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. Local food artisans may
21participate at farmers' markets.
22    (c) In order to facilitate the orderly and uniform
23statewide implementation of the standards established in the
24Department of Public Health's administrative rules for this Act
25interpretation of the Department of Public Health's Technical
26Information Bulletin/Food #30, the Farmers' Market Task Force

 

 

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

 

 

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

 

 

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

 

 

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1written explanation to the Task Force. If the Task Force,
2having been asked for its advice, fails to advise the
3Department within 90 days after receiving the rules for review,
4the rules shall be considered to have been approved by the Task
5Force. The Task Force shall assist the Department of Public
6Health and the Department of Agriculture in developing
7administrative regulations and procedures regarding the
8implementation of the various Acts that define which products
9and practices are permitted and which products and practices
10are not permitted at farmers' markets.
11    (k) The Department of Public Health shall provide staffing
12support to the Task Force and shall help to prepare, print, and
13distribute all reports deemed necessary by the Task Force.
14    (l) The Task Force may request assistance from any entity
15necessary or useful for the performance of its duties. The Task
16Force shall issue a report annually to the Secretary of the
17Senate and the Clerk of the House.
18    (m) The following provisions shall apply concerning
19statewide farmers' market food safety guidelines:
20        (1) The Director, in accordance with this Section,
21    shall adopt administrative rules (as provided by the
22    Illinois Administrative Procedure Act) for foods found at
23    farmers' markets.
24        (2) The rules and regulations described in this Act
25    shall be consistently enforced by local health authorities
26    throughout the State.

 

 

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1        (2.5) Notwithstanding any other provision of law
2    except as provided in this Act, local public health
3    departments and all other units of local government are
4    prohibited from creating sanitation guidelines, rules, or
5    regulations for farmers' markets that are more stringent
6    than those farmers' market sanitation regulations
7    contained in the administrative rules adopted by the
8    Department for the purposes of implementing Section 3.3 of
9    this Act. Except as provided for in Section 3.4 of this
10    Act, this Act does not intend and shall not be construed to
11    limit the power of local health departments and other
12    government units from requiring licensing and permits for
13    the sale of commercial food products, processed food
14    products, prepared foods, and potentially hazardous foods
15    at farmers' markets or conducting related inspections and
16    enforcement activities, so long as those permits and
17    licenses do not include unreasonable fees or sanitation
18    provisions and rules that are more stringent than those
19    laid out in the administrative rules adopted by the
20    Department for the purposes of implementing Section 3.3 of
21    this Act.
22        (3) In the case of alleged non-compliance with the
23    provisions described in this Act, local health departments
24    shall issue written notices to vendors and market managers
25    of any noncompliance issues.
26        (4) Produce and food products coming within the scope

 

 

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1    of the provisions of this Act shall include, but not be
2    limited to, raw agricultural products, including fresh
3    fruits and vegetables; popcorn, grains, seeds, beans, and
4    nuts that are whole, unprocessed, unpackaged, and
5    unsprouted; fresh herb springs and dried herbs in bunches;
6    baked goods sold at farmers' markets; cut fruits and
7    vegetables; milk and cheese products; ice cream; syrups;
8    wild and cultivated mushrooms; apple cider and other fruit
9    and vegetable juices; herb vinegar; garlic-in-oil;
10    flavored oils; pickles, relishes, salsas, and other canned
11    or jarred items; shell eggs; meat and poultry; fish;
12    ready-to-eat foods; and commercially produced prepackaged
13    food products; and any additional items specified in the
14    administrative rules adopted by the Department to
15    implement Section 3.3 of this Act.
16    (n) Local health department regulatory guidelines may be
17applied to foods not often found at farmers' markets, all other
18food products not regulated by the Department of Agriculture
19and the Department of Public Health, as well as live animals to
20be sold at farmers' markets.
21    (o) The Task Force shall issue annual reports to the
22Secretary of the Senate and the Clerk of the House with
23recommendations for the development of administrative rules as
24specified. The first report shall be issued no later than
25December 31, 2012.
26    (p) The Department of Public Health and the Department of

 

 

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1Agriculture, in conjunction with the Task Force, shall adopt
2administrative rules necessary to implement, interpret, and
3make specific the provisions of this Act, including, but not
4limited to, rules concerning labels, sanitation, and food
5product safety according to the realms of their jurisdiction in
6accordance with subsection (j) of this Section. The Task Force
7shall submit recommendations for administrative rules to the
8Department no later than December 15, 2014.
9    (q) The Department and the Task Force shall work together
10to create a food sampling training and license program as
11specified in Section 3.4 of this Act.
12(Source: P.A. 97-394, eff. 8-16-11.)
 
13    (410 ILCS 625/3.4 new)
14    Sec. 3.4. Product samples.
15    (a) For the purpose of this Section, "food product
16sampling" means food product samples distributed free of charge
17for promotional or educational purposes only.
18    (b) Notwithstanding any other provision of law, except as
19provided in subsection (c) of this Section, a vendor who
20engages in food product sampling at a farmers' market may do so
21without obtaining a State or local permit to provide those food
22product samples, provided the vendor complies with the State
23and local permit requirements to sell the food product to be
24sampled and with the food preparation, food handling, food
25storage, and food sampling requirements specified in the

 

 

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1administrative rules adopted by the Department to implement
2Section 3.3 and Section 3.4 of this Act.
3    The Department of Public Health is instructed to work with
4the Farmers' Market Task Force as created in Section 3.3 of
5this Act to establish a food sampling at farmers' market
6training and certification program to fulfill this
7requirement. The Department shall adopt rules for the food
8sampling training and certification program and product
9sampling requirements at farmers' markets in accordance with
10subsection (j) of Section 3.3. The Department may charge a
11reasonable fee for the training and certification program. The
12Department may delegate or contract authority to administer the
13food sampling training to other qualified public and private
14entities.
15    (c) Notwithstanding the provisions of subsection (b) of
16this Section, the Department of Public Health, the Department
17of Agriculture, a local municipal health department, or a
18certified local health department may inspect a vendor at a
19farmers' market to ensure compliance with the provisions in
20this Section. If an imminent health hazard exists or a vendor's
21product has been found to be misbranded, adulterated, or not in
22compliance with the permit exemption for vendors pursuant to
23this Section, then the regulatory authority may invoke
24cessation of sales until it deems that the situation has been
25addressed.
 

 

 

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1    (410 ILCS 625/3.5 new)
2    Sec. 3.5. Product origin.
3    (a) All vendors or booths selling specialty crops and raw
4agricultural commodities at a farmers' market in Illinois must
5post at the point of sale a placard or include on a label or
6packing slip the physical address of the farm or farms on which
7those products were grown or produced.
8    Specialty crops and raw agricultural commodities purchased
9through wholesale or retail markets may be offered for resale
10at a farmers' market. If the physical address of the farm or
11farms where the products were grown or produced is unknown,
12then the vendor must post at the point of sale a placard or
13include on a label or packing slip the physical address and
14business name, when applicable, where the products were
15purchased.
16    (b) Specialty crops and raw agricultural commodities
17direct marketed at farmers' markets that do not include a
18placard at the point of sale or on a label or packing slip
19stating the physical location of the farm on which those
20products were grown or produced shall be considered misbranded.
21    (c) Any related federal rules or regulations adopted
22through the implementation of the federal Food Safety
23Modernization Act regarding transparency, traceability, and
24product origin labeling pertaining to specialty crops and raw
25agricultural commodities shall supersede the provisions of
26this Section.
 

 

 

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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 of 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, stored in the
10residence or appropriately designed and equipped residential
11or commercial-style kitchen on that property where the food is
12made.
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    "Potentially hazardous food" means a food that is
19potentially hazardous according to the Department's
20administrative rules the Federal Food and Drug Administration
212009 Food Code (FDA 2009 Food Code) or any subsequent
22amendments to the FDA 2009 Food Code. Potentially hazardous
23food (PHF) in general means a food that requires time and
24temperature control for safety (TCS) to limit pathogenic
25microorganism growth or toxin formation. In accordance with the

 

 

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1FDA 2009 Food Code, potentially hazardous food does not include
2a food item that because of its pH or Aw value, or interaction
3of Aw and pH values, is designated as a non-PHF/non-TCS food in
4Table A or B of the FDA 2009 Food Code's potentially hazardous
5food definition.
6    (b) Notwithstanding any other provision of law and except
7as provided in subsections (c) and (d) of this Section, neither
8the Department of Public Health nor the Department of
9Agriculture nor the health department of a unit of local
10government may regulate the service of food by a cottage food
11operation providing that all of the following conditions are
12met:
13        (1) The food is not a potentially hazardous baked good,
14    jam, jelly, preserve, fruit butter, dry herb, dry herb
15    blend, or dry tea blend and is intended for end-use only.
16    The following provisions shall apply:
17            (A) The following jams, jellies and preserves are
18        allowed: apple, apricot, grape, peach, plum, quince,
19        orange, nectarine, tangerine, blackberry, raspberry,
20        blueberry, boysenberry, cherry, cranberry, strawberry,
21        red currants, or a combination of these fruits.
22        Rhubarb, tomato, and pepper jellies or jams are not
23        allowed. Any other jams, jellies, or preserves not
24        listed may be produced by a cottage food operation
25        provided their recipe has been tested and documented by
26        a commercial laboratory, at the expense of the cottage

 

 

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1        food operation, as being not potentially hazardous,
2        containing a pH equilibrium of less than 4.6.
3            (B) The following fruit butters are allowed:
4        apple, apricot, grape, peach, plum, quince, and prune.
5        Pumpkin butter, banana butter, and pear butter are not
6        allowed. Fruit butters not listed may be produced by a
7        cottage food operation provided their recipe has been
8        tested and documented by a commercial laboratory, at
9        the expense of the cottage food operation, as being not
10        potentially hazardous, containing a pH equilibrium of
11        less than 4.6.
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. The following are potentially
25        hazardous and prohibited from production and sale by a
26        cottage food operation: pumpkin pie, sweet potato pie,

 

 

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1        cheesecake, custard pies, creme pies, and pastries
2        with potentially hazardous fillings or toppings.
3        (2) The food is to be sold at a farmers' market.
4        (3) Gross receipts from the sale of food exempted under
5    this Section do not exceed $25,000 in a calendar year.
6        (4) The food packaging conforms to the labeling
7    requirements of the Illinois Food, Drug and Cosmetic Act
8    and includes the following information on the label of each
9    of its products:
10            (A) the name and address of the cottage food
11        operation;
12            (B) the common or usual name of the food product;
13            (C) all ingredients of the food product, including
14        any colors, artificial flavors, and preservatives,
15        listed in descending order by predominance of weight
16        shown with common or usual names;
17            (D) the following phrase: "This product was
18        produced in a home kitchen not subject to public health
19        inspection that may also process common food
20        allergens.";
21            (E) the date the product was processed; and
22            (F) allergen labeling as specified in federal
23        labeling requirements.
24        (5) The name and residence of the person preparing and
25    selling products as a cottage food operation is registered
26    with the health department of a unit of local government

 

 

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1    where the cottage food operation resides. No fees shall be
2    charged for registration. Registration shall be for a
3    minimum period of one year.
4        (6) The person preparing and selling products as a
5    cottage food operation has a Department of Public Health
6    approved Food Service Sanitation Management Certificate.
7        (7) At the point of sale a placard is displayed in a
8    prominent location that states the following: "This
9    product was produced in a home kitchen not subject to
10    public health inspection that may also process common food
11    allergens.".
12    (c) Notwithstanding the provisions of subsection (b) of
13this Section, if the Department of Public Health or the health
14department of a unit of local government has received a
15consumer complaint or has reason to believe that an imminent
16health hazard exists or that a cottage food operation's product
17has been found to be misbranded, adulterated, or not in
18compliance with the exception for cottage food operations
19pursuant to this Section, then it may invoke cessation of sales
20until it deems that the situation has been addressed to the
21satisfaction of the Department.
22    (d) Notwithstanding the provisions of subsection (b) of
23this Section, a State-certified local public health department
24may, upon providing a written statement to the Department of
25Public Health, regulate the service of food by a cottage food
26operation. The regulation by a State-certified local public

 

 

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1health department may include all of the following
2requirements:
3        (1) That the cottage food operation (A) register with
4    the State-certified local public health department, which
5    shall be for a minimum of one year and may include a
6    reasonable fee set by the State-certified local public
7    health department that is no greater than $25
8    notwithstanding paragraph (5) of subsection (b) of this
9    Section and (B) agree in writing at the time of
10    registration to grant access to the State-certified local
11    public health department to conduct an inspection of the
12    cottage food operation's primary domestic residence in the
13    event of a consumer complaint or foodborne illness
14    outbreak.
15        (2) That in the event of a consumer complaint or
16    foodborne illness outbreak the State-certified local
17    public health department is allowed to (A) inspect the
18    premises of the cottage food operation in question and (B)
19    set a reasonable fee for that inspection.
20(Source: P.A. 97-393, eff. 1-1-12.)
 
21    Section 10. The Sanitary Food Preparation Act is amended by
22changing Section 11 as follows:
 
23    (410 ILCS 650/11)  (from Ch. 56 1/2, par. 77)
24    Sec. 11. Except as hereinafter provided and as provided in

 

 

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1Sections 3.3, 3.4, and 4 of the Food Handling Regulation
2Enforcement Act, the Department of Public Health shall enforce
3this Act, and for that purpose it may at all times enter every
4such building, room, basement, inclosure or premises occupied
5or used or suspected of being occupied or used for the
6production, preparation or manufacture for sale, or the
7storage, sale, distribution or transportation of such food, to
8inspect the premises and all utensils, fixtures, furniture and
9machinery used as aforesaid; and if upon inspection any such
10food producing or distribution establishment, conveyance, or
11employer, employee, clerk, driver or other person is found to
12be violating any of the provisions of this Act, or if the
13production, preparation, manufacture, packing, storage, sale,
14distribution or transportation of such food is being conducted
15in a manner detrimental to the health of the employees and
16operatives, or to the character or quality of the food therein
17being produced, manufactured, packed, stored, sold,
18distributed or conveyed, the officer or inspector making the
19inspection or examination shall report such conditions and
20violations to the Department. The Department of Agriculture
21shall have exclusive jurisdiction for the enforcement of this
22Act insofar as it relates to establishments defined by Section
232.5 of "The Meat and Poultry Inspection Act", approved July 22,
241959, as heretofore or hereafter amended. The Department of
25Agriculture or Department of Public Health, as the case may be,
26shall thereupon issue a written order to the person, firm or

 

 

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1corporation responsible for the violation or condition
2aforesaid to abate such condition or violation or to make such
3changes or improvements as may be necessary to abate them,
4within such reasonable time as may be required. Notice of the
5order may be served by delivering a copy thereof to the person,
6firm or corporation, or by sending a copy thereof by registered
7mail, and the receipt thereof through the post office shall be
8prima facie evidence that notice of the order has been
9received. Such person, firm or corporation may appear in person
10or by attorney before the Department of Agriculture or the
11Department of Public Health, as the case may be, within the
12time limited in the order, and shall be given an opportunity to
13be heard and to show why such order or instructions should not
14be obeyed. The hearing shall be under such rules and
15regulations as may be prescribed by the Department of
16Agriculture or the Department of Public Health, as the case may
17be. If after such hearing it appears that this Act has not been
18violated, the order shall be rescinded. If it appears that this
19Act is being violated, and that the person, firm or corporation
20notified is responsible therefor, the previous order shall be
21confirmed or amended, as the facts shall warrant, and shall
22thereupon be final, but such additional time as is necessary
23may be granted within which to comply with the final order. If
24such person, firm or corporation is not present or represented
25when such final order is made, notice thereof shall be given as
26above provided. On failure of the party or parties to comply

 

 

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1with the first order of the Department of Agriculture or the
2Department of Public Health, as the case may be, within the
3time prescribed, when no hearing is demanded, or upon failure
4to comply with the final order within the time specified, the
5Department shall certify the facts to the State's Attorney of
6the county in which such violation occurred, and such State's
7Attorney shall proceed against the party or parties for the
8fines and penalties provided by this Act, and also for the
9abatement of the nuisance: Provided, that the proceedings
10herein prescribed for the abatement of nuisances as defined in
11this Act shall not in any manner relieve the violator from
12prosecution in the first instance for every such violation, nor
13from the penalties for such violation prescribed by Section 13.
14(Source: P.A. 97-393, eff. 1-1-12; 97-394, eff. 8-16-11;
1597-813, eff. 7-13-12.)
 
16    Section 99. Effective date. This Act takes effect upon
17becoming law.