Sen. David Koehler

Filed: 2/18/2022





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2    AMENDMENT NO. ______. Amend Senate Bill 3838 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Food Handling Regulation Enforcement Act
5is amended by changing Section 3.3 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



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1    the full retail value of their products. They have become
2    important community institutions and have figured in the
3    revitalization of downtown districts and rural
4    communities.
5        (3) Since 1999, the number of farmers' markets has
6    tripled and new ones are being established every year.
7    There is a lack of consistent regulation from one county
8    to the next, resulting in confusion and discrepancies
9    between counties regarding how products may be sold. There
10    continue 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        (4) (Blank).
15        (5) (Blank).
16        (6) Recognizing that farmers' markets serve as small
17    business incubators and that farmers' profit margins
18    frequently are narrow, even in direct-to-consumer retail,
19    protecting farmers from costs of regulation that are
20    disproportionate to their profits will help ensure the
21    continued viability of these local farms and small
22    businesses.
23    (b) For the purposes of this Section:
24    "Department" means the Department of Public Health.
25    "Director" means the Director of Public Health.
26    "Farmer" means an individual who is a resident of Illinois



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1and owns or leases land in Illinois that is used as a farm, as
2that term is defined in Section 1-60 of the Property Tax Code,
3or that individual's employee.
4    "Farmers' market" means a common facility or area where
5the primary purpose is for farmers to gather to sell a variety
6of fresh fruits and vegetables and other locally produced farm
7and food products directly to consumers.
8    "Licensed or permitted processing facility" means a
9facility that has been inspected, approved, and permitted or
10licensed by the Department of Agriculture, the Department of
11Public Health, or a local health department.
12    "Local health department" means a State-certified health
13department of a unit of local government.
14    "Main ingredient" means an agricultural product that is
15the defining or distinctive ingredient in a product, though
16not necessarily by predominance of weight.
17    (c) (Blank).
18    (d) This Section does not intend and shall not be
19construed to limit the power of counties, municipalities, and
20other local government units to regulate farmers' markets for
21the protection of the public health, safety, morals, and
22welfare, including, but not limited to, licensing requirements
23and time, place, and manner restrictions, except as specified
24in this Act. This Section provides for a statewide scheme for
25the orderly and consistent regulation interpretation of the
26Department's administrative rules pertaining to the safety of



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1food and food products sold at farmers' markets.
2    (e) (Blank).
3    (f) (Blank).
4    (g) (Blank).
5    (h) (Blank).
6    (i) (Blank).
7    (j) (Blank).
8    (k) (Blank).
9    (l) (Blank).
10    (m) The following provisions shall apply concerning
11statewide retail sale of farm products at farmers' markets
12farmers' market food safety guidelines:
13        (1) (Blank). The Director, in accordance with this
14    Section, shall adopt administrative rules (as provided by
15    the Illinois Administrative Procedure Act) for foods found
16    at farmers' markets.
17        (2) Local health departments may conduct enforcement
18    actions under and pursuant to this Section. The rules and
19    regulations described in this Section shall be
20    consistently enforced by local health authorities
21    throughout the State.
22        (2.5) Notwithstanding any other provision of law
23    except as provided in this Section, local public health
24    departments and all other units of local government are
25    prohibited from creating sanitation guidelines, rules, or
26    regulations for farmers' markets that are more stringent



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1    than those farmers' market sanitation regulations
2    contained in this Section. the administrative rules
3    adopted by the Department for the purposes of implementing
4    this Section and Sections 3.4, 3.5, and 4 of this Act.
5    Except as provided for in Sections 3.4 and 4 of this Act,
6    this Section does not intend and shall not be construed to
7    limit the power of local health departments and other
8    government units from requiring licensing and permits for
9    the sale of commercial food products, processed food
10    products, prepared foods, and potentially hazardous foods
11    at farmers' markets or conducting related inspections and
12    enforcement activities, so long as those permits and
13    licenses do not include unreasonable fees or sanitation
14    provisions and rules that are more stringent than those
15    laid out in the administrative rules adopted by the
16    Department for the purposes of implementing this Section
17    and Sections 3.4, 3.5, and 4 of this Act.
18        (2.10) A farmer who engages in the sale of any of the
19    following products shall obtain a Farmers' Market Permit
20    from each local health department that chooses to require
21    a Farmers' Market Permit for each unit of local government
22    in which a sales takes place:
23            (A) Frozen, potentially hazardous foods that are
24        prepackaged at a licensed or permitted processing
25        facility but have the main ingredient grown or raised
26        on the farmer's farm.



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1            (B) Meat, poultry, dairy, and eggs raised or grown
2        on the farm of the farmer selling the food product.
3        Nothing in this paragraph shall alter any obligation
4    under the Grade A Pasteurized Milk and Milk Products Act.
5        (2.15) As part of the permitting process for a
6    Farmers' Market Permit, a local health department may
7    require the applicant to perform the following:
8            (A) Provide the address of the applicant's farm
9        and his or her contact information.
10            (B) Provide a list of products intended for sale.
11            (C) Provide a thermometer for each refrigeration
12        unit, including, but not limited to, a refrigerator,
13        fridge, freezer, or cooler, that is accurate to plus
14        or minus 3 degrees Fahrenheit.
15            (D) Maintain in good condition all equipment,
16        utensils, and the like, meaning that there are no
17        chips, pitting, or other similar wear.
18            (E) Provide effective means to maintain cold food
19        temperatures below 41 degrees Fahrenheit and frozen
20        foods below 32 degrees Fahrenheit.
21            (F) For meat, dairy, or poultry products that do
22        not require refrigeration, provide a product hazard
23        analysis and critical control point (HACCP) or food
24        safety plan from a licensed facility as evidence of
25        product safety at specific temperatures for the
26        specified duration that they are not refrigerated.



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1            (G) The name, address, and contact information of
2        the licensed or permitted processing facility at which
3        products were processed.
4            (H) If selling eggs, provide an Illinois Egg
5        License issued by the Department of Agriculture.
6            (I) At least one annual inspection. Inspections
7        may occur on site at the farmers market, or a local
8        health department may require once annually that the
9        farmer applicant go to an alternate location to
10        conduct the inspection.
11        (2.20) A Farmers' Market Permit shall be valid for one
12    year. The fee for obtaining a Farmers' Market Permit shall
13    not exceed the following:
14            (A) $75 for a limited egg Farmers' Market Permit
15        covering only the sale of eggs.
16            (B) $175 for a full Farmers' Market Permit
17        covering any combination of meat, poultry, dairy,
18        eggs, and frozen foods grown, raised, or produced on
19        or in a licensed or permitted processing facility.
20        The fee limits imposed under this paragraph shall be
21    increased by 10% on January 1, 2026 and on January 1 of
22    every third year thereafter.
23        (2.25) A local health department shall meet the
24    following requirements in creating, setting, or amending
25    the fee required for a Farmers' Market Permit under this
26    subsection:



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1            (A) A local health department shall solicit public
2        input in determining the initial fee or fees for a
3        Farmers' Market Permit, and also at any time a fee
4        increase is proposed by the local health department,
5        by one or all of the following means:
6                (i) Convene at least one public meeting to
7            allow verbal and written public input regarding
8            the intent to create, set, or amend a fee. Before
9            the public meeting, all farmers' market operators
10            in the local health department's jurisdiction and
11            all existing Farmers' Market Permit holders that
12            are permitted in the local health department's
13            jurisdiction shall be notified using the best
14            efforts of the local health department.
15                (ii) Provide public notice and solicit written
16            comments from the public regarding the intent to
17            create, set, or amend a fee. Before the comment
18            period, all farmers' market operators in the
19            jurisdiction and all existing Farmers' Market
20            Permit holders that are permitted in the local
21            health department's jurisdiction shall be notified
22            using the best efforts of the local health
23            department.
24            (B) A local health department shall consider all
25        public comments received in creating, setting, or
26        amending a fee.



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1            (C) A local health department has final discretion
2        to create, set, or amend a fee, subject to the fee
3        limits under subparagraph (A) of paragraph (2.20).
4            (D) A local health department shall amend a fee no
5        more than once per year.
6            (E) All comments received under this paragraph
7        shall be provided to the locally elected or appointed
8        governing body of the location that the local health
9        department is located at.
10            (F) A local health department is not required to
11        create a new process to solicit public input regarding
12        the creation, setting, or amending of fees if it
13        already has a process in place that meets the minimum
14        requirements set forth in this paragraph.
15        (2.30) A home rule unit may not regulate Farmers'
16    Market Permits in a manner inconsistent with the
17    regulation by the State of Farmers' Market Permits under
18    this subsection. This paragraph is a limitation under
19    subsection (i) of Section 6 of Article VII of the Illinois
20    Constitution on the concurrent exercise by home rule units
21    of powers and functions exercised by the State.
22        (3) In the case of alleged noncompliance with the
23    provisions described in this Section, local health
24    departments shall issue written notices to vendors and
25    market managers of any noncompliance issues. Citations may
26    be issued to farmers who do not have or display their



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1    Farmers' Market Permits. Repeat violations may result in
2    fines or Farmers' Market Permit suspension by a local
3    health department.
4        (4) (Blank). Produce and food products coming within
5    the scope of the provisions of this Section shall include,
6    but not be limited to, raw agricultural products,
7    including fresh fruits and vegetables; popcorn, grains,
8    seeds, beans, and nuts that are whole, unprocessed,
9    unpackaged, and unsprouted; fresh herb sprigs and dried
10    herbs in bunches; baked goods sold at farmers' markets;
11    cut fruits and vegetables; milk and cheese products; ice
12    cream; syrups; wild and cultivated mushrooms; apple cider
13    and other fruit and vegetable juices; herb vinegar;
14    garlic-in-oil; flavored oils; pickles, relishes, salsas,
15    and other canned or jarred items; shell eggs; meat and
16    poultry; fish; ready-to-eat foods; commercially produced
17    prepackaged food products; and any additional items
18    specified in the administrative rules adopted by the
19    Department to implement Section 3.3 of this Act.
20    (n) Local health department regulatory guidelines may be
21applied to foods not often found at farmers' markets, all
22other food products not regulated by the Department of
23Agriculture and the Department of Public Health, as well as
24live animals to be sold at farmers' markets.
25    (o) (Blank).
26    (p) The Department of Public Health and the Department of



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1Agriculture shall adopt administrative rules necessary to
2implement, interpret, and make specific the provisions of this
3Section, including, but not limited to, rules concerning
4labels, sanitation, and food product safety according to the
5realms of their jurisdiction.
6    (q) The Department shall create a food sampling training
7and license program as specified in Section 3.4 of this Act.
8    (r) In addition to any rules adopted pursuant to
9subsection (p) of this Section, the following provisions shall
10be applied uniformly throughout the State, including to home
11rule units, except as otherwise provided in this Act:
12        (1) Farmers market vendors shall provide effective
13    means to maintain potentially hazardous food, as defined
14    in Section 4 of this Act, at 41 degrees Fahrenheit or
15    below. As an alternative to mechanical refrigeration, an
16    effectively insulated, hard-sided, cleanable container
17    with sufficient ice or other cooling means that is
18    intended for the storage of potentially hazardous food
19    shall be used. Local health departments shall not limit
20    vendors' choice of refrigeration or cooling equipment and
21    shall not charge a fee for use of such equipment. Local
22    health departments shall not be precluded from requiring
23    an effective alternative form of cooling if a vendor is
24    unable to maintain food at the appropriate temperature.
25        (2) Handwashing stations may be shared by farmers'
26    market vendors if handwashing stations are accessible to



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1    vendors.
2(Source: P.A. 100-488, eff. 6-1-18; 100-805, eff. 1-1-19;
3101-81, eff. 7-12-19.)".