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


Sen. David Koehler

Filed: 4/6/2011





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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    "Potentially hazardous food" means a food that is
15potentially hazardous according to the Federal Food and Drug
16Administration 2009 Food Code (FDA 2009 Food Code) or any



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



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



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



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



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



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11959, as heretofore or hereafter amended. The Department of
2Agriculture or Department of Public Health, as the case may be,
3shall thereupon issue a written order to the person, firm or
4corporation responsible for the violation or condition
5aforesaid to abate such condition or violation or to make such
6changes or improvements as may be necessary to abate them,
7within such reasonable time as may be required. Notice of the
8order may be served by delivering a copy thereof to the person,
9firm or corporation, or by sending a copy thereof by registered
10mail, and the receipt thereof through the post office shall be
11prima facie evidence that notice of the order has been
12received. Such person, firm or corporation may appear in person
13or by attorney before the Department of Agriculture or the
14Department of Public Health, as the case may be, within the
15time limited in the order, and shall be given an opportunity to
16be heard and to show why such order or instructions should not
17be obeyed. The hearing shall be under such rules and
18regulations as may be prescribed by the Department of
19Agriculture or the Department of Public Health, as the case may
20be. If after such hearing it appears that this Act has not been
21violated, the order shall be rescinded. If it appears that this
22Act is being violated, and that the person, firm or corporation
23notified is responsible therefor, the previous order shall be
24confirmed or amended, as the facts shall warrant, and shall
25thereupon be final, but such additional time as is necessary
26may be granted within which to comply with the final order. If



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