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Public Act 097-0393


 

Public Act 0393 97TH GENERAL ASSEMBLY



 


 
Public Act 097-0393
 
SB0840 EnrolledLRB097 04584 KTG 44623 b

    AN ACT concerning health.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Food Handling Regulation Enforcement Act is
amended by adding Section 4 as follows:
 
    (410 ILCS 625/4 new)
    Sec. 4. Cottage food operation.
    (a) For the purpose of this Section:
    "Cottage food operation" means a person who produces or
packages non-potentially hazardous food in a kitchen of that
person's primary domestic residence for direct sale by the
owner or a family member, stored in the residence where the
food is made.
    "Farmers' market" means a common facility or area where
farmers gather to sell a variety of fresh fruits and vegetables
and other locally produced farm and food products directly to
consumers.
    "Potentially hazardous food" means a food that is
potentially hazardous according to the Federal Food and Drug
Administration 2009 Food Code (FDA 2009 Food Code) or any
subsequent amendments to the FDA 2009 Food Code. Potentially
hazardous food (PHF) in general means a food that requires time
and temperature control for safety (TCS) to limit pathogenic
microorganism growth or toxin formation. In accordance with the
FDA 2009 Food Code, potentially hazardous food does not include
a food item that because of its pH or Aw value, or interaction
of Aw and pH values, is designated as a non-PHF/non-TCS food in
Table A or B of the FDA 2009 Food Code's potentially hazardous
food definition.
    (b) Notwithstanding any other provision of law and except
as provided in subsections (c) and (d) of this Section, neither
the Department of Public Health nor the Department of
Agriculture nor the health department of a unit of local
government may regulate the service of food by a cottage food
operation providing that all of the following conditions are
met:
        (1) The food is not a potentially hazardous baked good,
    jam, jelly, preserve, fruit butter, dry herb, dry herb
    blend, or dry tea blend and is intended for end-use only.
    The following provisions shall apply:
            (A) The following jams, jellies and preserves are
        allowed: apple, apricot, grape, peach, plum, quince,
        orange, nectarine, tangerine, blackberry, raspberry,
        blueberry, boysenberry, cherry, cranberry, strawberry,
        red currants, or a combination of these fruits.
        Rhubarb, tomato, and pepper jellies or jams are not
        allowed. Any other jams, jellies, or preserves not
        listed may be produced by a cottage food operation
        provided their recipe has been tested and documented by
        a commercial laboratory, at the expense of the cottage
        food operation, as being not potentially hazardous,
        containing a pH equilibrium of less than 4.6.
            (B) The following fruit butters are allowed:
        apple, apricot, grape, peach, plum, quince, and prune.
        Pumpkin butter, banana butter, and pear butter are not
        allowed. Fruit butters not listed may be produced by a
        cottage food operation provided their recipe has been
        tested and documented by a commercial laboratory, at
        the expense of the cottage food operation, as being not
        potentially hazardous, containing a pH equilibrium of
        less than 4.6.
            (C) Baked goods, such as, but not limited to,
        breads, cookies, cakes, pies, and pastries are
        allowed. Only high-acid fruit pies that use the
        following fruits are allowed: apple, apricot, grape,
        peach, plum, quince, orange, nectarine, tangerine,
        blackberry, raspberry, blueberry, boysenberry, cherry,
        cranberry, strawberry, red currants or a combination
        of these fruits. Fruit pies not listed may be produced
        by a cottage food operation provided their recipe has
        been tested and documented by a commercial laboratory,
        at the expense of the cottage food operation, as being
        not potentially hazardous, containing a pH equilibrium
        of less than 4.6. The following are potentially
        hazardous and prohibited from production and sale by a
        cottage food operation: pumpkin pie, sweet potato pie,
        cheesecake, custard pies, crème pies, and pastries
        with potentially hazardous fillings or toppings.
        (2) The food is to be sold at a farmers' market.
        (3) Gross receipts from the sale of food exempted under
    this Section do not exceed $25,000 in a calendar year.
        (4) The food packaging conforms to the labeling
    requirements of the Illinois Food, Drug and Cosmetic Act
    and includes the following information on the label of each
    of its products:
            (A) the name and address of the cottage food
        operation;
            (B) the common or usual name of the food product;
            (C) all ingredients of the food product, including
        any colors, artificial flavors, and preservatives,
        listed in descending order by predominance of weight
        shown with common or usual names;
            (D) the following phrase: "This product was
        produced in a home kitchen not subject to public health
        inspection that may also process common food
        allergens.";
            (E) the date the product was processed; and
            (F) allergen labeling as specified in federal
        labeling requirements.
        (5) The name and residence of the person preparing and
    selling products as a cottage food operation is registered
    with the health department of a unit of local government
    where the cottage food operation resides. No fees shall be
    charged for registration.
        (6) The person preparing and selling products as a
    cottage food operation has a Department of Public Health
    approved Food Service Sanitation Management Certificate.
        (7) At the point of sale a placard is displayed in a
    prominent location that states the following: "This
    product was produced in a home kitchen not subject to
    public health inspection that may also process common food
    allergens.".
    (c) Notwithstanding the provisions of subsection (b) of
this Section, if the Department of Public Health or the health
department of a unit of local government has received a
consumer complaint or has reason to believe that an imminent
health hazard exists or that a cottage food operation's product
has been found to be misbranded, adulterated, or not in
compliance with the exception for cottage food operations
pursuant to this Section, then it may invoke cessation of sales
until it deems that the situation has been addressed to the
satisfaction of the Department.
    (d) Notwithstanding the provisions of subsection (b) of
this Section, a State-certified local public health department
may, upon providing a written statement to the Department of
Public Health, regulate the service of food by a cottage food
operation. The regulation by a State-certified local public
health department may include all of the following
requirements:
        (1) That the cottage food operation (A) register with
    the State-certified local public health department, which
    may include a reasonable fee set by the State-certified
    local public health department notwithstanding paragraph
    (5) of subsection (b) of this Section and (B) agree in
    writing at the time of registration to grant access to the
    State-certified local public health department to conduct
    an inspection of the cottage food operation's primary
    domestic residence in the event of a consumer complaint or
    foodborne illness outbreak.
        (2) That in the event of a consumer complaint or
    foodborne illness outbreak the State-certified local
    public health department is allowed to (A) inspect the
    premises of the cottage food operation in question and (B)
    set a reasonable fee for that inspection.
 
    Section 10. The Sanitary Food Preparation Act is amended by
changing Section 11 as follows:
 
    (410 ILCS 650/11)  (from Ch. 56 1/2, par. 77)
    Sec. 11. Except as hereinafter provided and as provided in
Section 4 of the Food Handling Regulation Enforcement Act, the
Department of Public Health shall enforce this Act, and for
that purpose it may at all times enter every such building,
room, basement, inclosure or premises occupied or used or
suspected of being occupied or used for the production,
preparation or manufacture for sale, or the storage, sale,
distribution or transportation of such food, to inspect the
premises and all utensils, fixtures, furniture and machinery
used as aforesaid; and if upon inspection any such food
producing or distribution establishment, conveyance, or
employer, employee, clerk, driver or other person is found to
be violating any of the provisions of this Act, or if the
production, preparation, manufacture, packing, storage, sale,
distribution or transportation of such food is being conducted
in a manner detrimental to the health of the employees and
operatives, or to the character or quality of the food therein
being produced, manufactured, packed, stored, sold,
distributed or conveyed, the officer or inspector making the
inspection or examination shall report such conditions and
violations to the Department. The Department of Agriculture
shall have exclusive jurisdiction for the enforcement of this
Act insofar as it relates to establishments defined by Section
2.5 of "The Meat and Poultry Inspection Act", approved July 22,
1959, as heretofore or hereafter amended. The Department of
Agriculture or Department of Public Health, as the case may be,
shall thereupon issue a written order to the person, firm or
corporation responsible for the violation or condition
aforesaid to abate such condition or violation or to make such
changes or improvements as may be necessary to abate them,
within such reasonable time as may be required. Notice of the
order may be served by delivering a copy thereof to the person,
firm or corporation, or by sending a copy thereof by registered
mail, and the receipt thereof through the post office shall be
prima facie evidence that notice of the order has been
received. Such person, firm or corporation may appear in person
or by attorney before the Department of Agriculture or the
Department of Public Health, as the case may be, within the
time limited in the order, and shall be given an opportunity to
be heard and to show why such order or instructions should not
be obeyed. The hearing shall be under such rules and
regulations as may be prescribed by the Department of
Agriculture or the Department of Public Health, as the case may
be. If after such hearing it appears that this Act has not been
violated, the order shall be rescinded. If it appears that this
Act is being violated, and that the person, firm or corporation
notified is responsible therefor, the previous order shall be
confirmed or amended, as the facts shall warrant, and shall
thereupon be final, but such additional time as is necessary
may be granted within which to comply with the final order. If
such person, firm or corporation is not present or represented
when such final order is made, notice thereof shall be given as
above provided. On failure of the party or parties to comply
with the first order of the Department of Agriculture or the
Department of Public Health, as the case may be, within the
time prescribed, when no hearing is demanded, or upon failure
to comply with the final order within the time specified, the
Department shall certify the facts to the State's Attorney of
the county in which such violation occurred, and such State's
Attorney shall proceed against the party or parties for the
fines and penalties provided by this Act, and also for the
abatement of the nuisance: Provided, that the proceedings
herein prescribed for the abatement of nuisances as defined in
this Act shall not in any manner relieve the violator from
prosecution in the first instance for every such violation, nor
from the penalties for such violation prescribed by Section 13.
(Source: P.A. 81-1509.)

Effective Date: 1/1/2012