Illinois General Assembly - Full Text of SB0840
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Full Text of SB0840  97th General Assembly


Rep. Lisa M. Dugan

Filed: 5/12/2011





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2    AMENDMENT NO. ______. Amend Senate Bill 840 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Food Handling Regulation Enforcement Act is
5amended by adding Section 4 as follows:
6    (410 ILCS 625/4 new)
7    Sec. 4. Cottage food operation.
8    (a) For the purpose of this Section:
9    "Cottage food operation" means a person who produces or
10packages non-potentially hazardous food in a kitchen of that
11person's primary domestic residence for direct sale by the
12owner or a family member, stored in the residence where the
13food is made.
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



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2    "Potentially hazardous food" means a food that is
3potentially hazardous according to the Federal Food and Drug
4Administration 2009 Food Code (FDA 2009 Food Code) or any
5subsequent amendments to the FDA 2009 Food Code. Potentially
6hazardous food (PHF) in general means a food that requires time
7and temperature control for safety (TCS) to limit pathogenic
8microorganism growth or toxin formation. In accordance with the
9FDA 2009 Food Code, potentially hazardous food does not include
10a food item that because of its pH or Aw value, or interaction
11of Aw and pH values, is designated as a non-PHF/non-TCS food in
12Table A or B of the FDA 2009 Food Code's potentially hazardous
13food definition.
14    (b) Notwithstanding any other provision of law and except
15as provided in subsections (c) and (d) of this Section, neither
16the Department of Public Health nor the Department of
17Agriculture nor the health department of a unit of local
18government may regulate the service of food by a cottage food
19operation providing that all of the following conditions are
21        (1) The food is not a potentially hazardous baked good,
22    jam, jelly, preserve, fruit butter, dry herb, dry herb
23    blend, or dry tea blend and is intended for end-use only.
24    The following provisions shall apply:
25            (A) The following jams, jellies and preserves are
26        allowed: apple, apricot, grape, peach, plum, quince,



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



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1        of these fruits. Fruit pies not listed may be produced
2        by a cottage food operation provided their recipe has
3        been tested and documented by a commercial laboratory,
4        at the expense of the cottage food operation, as being
5        not potentially hazardous, containing a pH equilibrium
6        of less than 4.6. The following are potentially
7        hazardous and prohibited from production and sale by a
8        cottage food operation: pumpkin pie, sweet potato pie,
9        cheesecake, custard pies, crème pies, and pastries
10        with potentially hazardous fillings or toppings.
11        (2) The food is to be sold at a farmers' market.
12        (3) Gross receipts from the sale of food exempted under
13    this Section do not exceed $25,000 in a calendar year.
14        (4) The food packaging conforms to the labeling
15    requirements of the Illinois Food, Drug and Cosmetic Act
16    and includes the following information on the label of each
17    of its products:
18            (A) the name and address of the cottage food
19        operation;
20            (B) the common or usual name of the food product;
21            (C) all ingredients of the food product, including
22        any colors, artificial flavors, and preservatives,
23        listed in descending order by predominance of weight
24        shown with common or usual names;
25            (D) the following phrase: "This product was
26        produced in a home kitchen not subject to public health



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



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1until it deems that the situation has been addressed to the
2satisfaction of the Department.
3    (d) Notwithstanding the provisions of subsection (b) of
4this Section, a State-certified local public health department
5may, upon providing a written statement to the Department of
6Public Health, regulate the service of food by a cottage food
7operation. The regulation by a State-certified local public
8health department may include all of the following
10        (1) That the cottage food operation (A) register with
11    the State-certified local public health department, which
12    may include a reasonable fee set by the State-certified
13    local public health department notwithstanding paragraph
14    (5) of subsection (b) of this Section and (B) agree in
15    writing at the time of registration to grant access to the
16    State-certified local public health department to conduct
17    an inspection of the cottage food operation's primary
18    domestic residence in the event of a consumer complaint or
19    foodborne illness outbreak.
20        (2) That in the event of a consumer complaint or
21    foodborne illness outbreak the State-certified local
22    public health department is allowed to (A) inspect the
23    premises of the cottage food operation in question and (B)
24    set a reasonable fee for that inspection.
25    Section 10. The Sanitary Food Preparation Act is amended by



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1changing Section 11 as follows:
2    (410 ILCS 650/11)  (from Ch. 56 1/2, par. 77)
3    Sec. 11. Except as hereinafter provided and as provided in
4Section 4 of the Food Handling Regulation Enforcement Act, the
5Department of Public Health shall enforce this Act, and for
6that purpose it may at all times enter every such building,
7room, basement, inclosure or premises occupied or used or
8suspected of being occupied or used for the production,
9preparation or manufacture for sale, or the storage, sale,
10distribution or transportation of such food, to inspect the
11premises and all utensils, fixtures, furniture and machinery
12used as aforesaid; and if upon inspection any such food
13producing or distribution establishment, conveyance, or
14employer, employee, clerk, driver or other person is found to
15be violating any of the provisions of this Act, or if the
16production, preparation, manufacture, packing, storage, sale,
17distribution or transportation of such food is being conducted
18in a manner detrimental to the health of the employees and
19operatives, or to the character or quality of the food therein
20being produced, manufactured, packed, stored, sold,
21distributed or conveyed, the officer or inspector making the
22inspection or examination shall report such conditions and
23violations to the Department. The Department of Agriculture
24shall have exclusive jurisdiction for the enforcement of this
25Act insofar as it relates to establishments defined by Section



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12.5 of "The Meat and Poultry Inspection Act", approved July 22,
21959, as heretofore or hereafter amended. The Department of
3Agriculture or Department of Public Health, as the case may be,
4shall thereupon issue a written order to the person, firm or
5corporation responsible for the violation or condition
6aforesaid to abate such condition or violation or to make such
7changes or improvements as may be necessary to abate them,
8within such reasonable time as may be required. Notice of the
9order may be served by delivering a copy thereof to the person,
10firm or corporation, or by sending a copy thereof by registered
11mail, and the receipt thereof through the post office shall be
12prima facie evidence that notice of the order has been
13received. Such person, firm or corporation may appear in person
14or by attorney before the Department of Agriculture or the
15Department of Public Health, as the case may be, within the
16time limited in the order, and shall be given an opportunity to
17be heard and to show why such order or instructions should not
18be obeyed. The hearing shall be under such rules and
19regulations as may be prescribed by the Department of
20Agriculture or the Department of Public Health, as the case may
21be. If after such hearing it appears that this Act has not been
22violated, the order shall be rescinded. If it appears that this
23Act is being violated, and that the person, firm or corporation
24notified is responsible therefor, the previous order shall be
25confirmed or amended, as the facts shall warrant, and shall
26thereupon be final, but such additional time as is necessary



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1may be granted within which to comply with the final order. If
2such person, firm or corporation is not present or represented
3when such final order is made, notice thereof shall be given as
4above provided. On failure of the party or parties to comply
5with the first order of the Department of Agriculture or the
6Department of Public Health, as the case may be, within the
7time prescribed, when no hearing is demanded, or upon failure
8to comply with the final order within the time specified, the
9Department shall certify the facts to the State's Attorney of
10the county in which such violation occurred, and such State's
11Attorney shall proceed against the party or parties for the
12fines and penalties provided by this Act, and also for the
13abatement of the nuisance: Provided, that the proceedings
14herein prescribed for the abatement of nuisances as defined in
15this Act shall not in any manner relieve the violator from
16prosecution in the first instance for every such violation, nor
17from the penalties for such violation prescribed by Section 13.
18(Source: P.A. 81-1509.)".