Public Act 0903 103RD GENERAL ASSEMBLY

SB2617 Enrolled LRB103 34813 RPS 64668 b

Public Act 103-0903

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 changing Section 4 as follows:

(410 ILCS 625/4)

Sec. 4. Cottage food operation.

(a) For the purpose of this Section:

A food is "acidified" if: (i) acid or acid ingredients are added to it to produce a final equilibrium pH of 4.6 or below and a water activity greater than 0.85; or (ii) it is fermented to produce a final equilibrium pH of 4.6 or below.

"Canned food" means food that has been heat processed sufficiently under United States Department of Agriculture guidelines to enable storing the food at normal home temperatures.

"Cottage food operation" means an operation conducted by a person who produces or packages food or drink, other than foods and drinks listed as prohibited in paragraph (1.5) of subsection (b) of this Section, in a kitchen located in that person's primary domestic residence or another appropriately designed and equipped kitchen on a farm for direct sale by the owner, a family member, or employee.

"Cut leafy greens" means fresh leafy greens whose leaves have been cut, shredded, sliced, chopped, or torn. "Cut leafy greens" does not mean cut-to-harvest leafy greens.

"Department" means the Department of Public Health.

"Employee" means a person who is employed by and receives monetary compensation from a cottage food operator.

"Equilibrium pH" means the final potential of hydrogen measured in an acidified food after all the components of the food have achieved the same acidity.

"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.

"Leafy greens" includes iceberg lettuce; romaine lettuce; leaf lettuce; butter lettuce; baby leaf lettuce, such as immature lettuce or leafy greens; escarole; endive; spring mix; spinach; cabbage; kale; arugula; and chard. "Leafy greens" does not include microgreens or herbs such as cilantro or parsley.

"Local health department" means a State-certified health department of a unit of local government in which a cottage food operation is located or, if the cottage food operation is located in a county that does not have a local health department, is registered.

"Local public health department association" means an association solely representing 2 or more State-certified local health departments.

"Low-acid canned food" means any canned food with a finished equilibrium pH greater than 4.6 and a water activity (aw) greater than 0.85.

"Microgreen" means an edible plant seedling grown in soil or substrate and harvested above the soil or substrate line.

"Mobile farmers markets" means a farmers market that is operated from a movable motor drive or propelled vehicle or trailer that can change location, including a farmers market that is owned and operated by a farmer or a third party selling products on behalf of farmers or cottage food operations with the intent of a direct sale to an end consumer.

"Potentially hazardous food" means a food that is potentially hazardous according to the Department's administrative rules. 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.

"Sprout" means any seedling intended for human consumption that was produced in a manner that does not meet the definition of microgreen.

"Time/temperature control for safety food" means a food that is stored under time or temperature control for food safety according to the Department's administrative rules.

(b) A cottage food operation may produce homemade food and drink provided that all of the following conditions are met:

(1) (Blank).

(1.3) A cottage food operation must register with the local health department for the unit of local government in which it is located, but may sell products outside of the unit of local government where the cottage food operation is located. If a county does not have a local health department, the county shall enter into an agreement or contract with a local health department in an adjacent county to register cottage food operations in the jurisdiction of the county that does not have a health department. The adjacent local health department where the cottage food operation registers has the powers described in subsection (d). A copy of the certificate of registration must be available upon request by any local health department.

(1.5) A cottage food operation shall not sell or offer to sell the following food items or processed foods containing the following food items, except as indicated:

(A) meat, poultry, fish, seafood, or shellfish;

(B) dairy, except as an ingredient in a non-potentially hazardous baked good or candy that is not a time/temperature control for safety food, such as caramel, subject to paragraph (4), or as an ingredient in a baked good frosting, such as buttercream;

(C) eggs, except as an ingredient in a food that is not a time/temperature control for safety food non-potentially hazardous food, including dry noodles, or as an ingredient in a baked good frosting, such as buttercream, if the eggs are not raw;

(D) pumpkin pies, sweet potato pies, cheesecakes, custard pies, creme pies, and pastries with time/temperature control for safety foods that are potentially hazardous fillings or toppings;

(E) garlic in oil or oil infused with garlic, except if the garlic oil is acidified;

(F) low-acid canned foods;

(G) sprouts;

(H) cut leafy greens, except for cut leafy greens that are dehydrated, acidified, or blanched and frozen;

(I) cut or pureed fresh tomato or melon;

(J) dehydrated tomato or melon;

(K) frozen cut melon;

(L) wild-harvested, non-cultivated mushrooms;

(M) alcoholic beverages; or

(N) kombucha.

(1.6) In order to sell canned tomatoes or a canned product containing tomatoes, a cottage food operator shall either:

(A) follow exactly a recipe that has been tested by the United States Department of Agriculture or by a state cooperative extension located in this State or any other state in the United States; or

(B) submit the recipe, at the cottage food operator's expense, to a commercial laboratory according to the commercial laboratory's directions to test that the product has been adequately acidified; use only the varietal or proportionate varietals of tomato included in the tested recipe for all subsequent batches of such recipe; and provide documentation of the annual test results of the recipe submitted under this subparagraph upon registration and to an inspector upon request during any inspection authorized by subsection (d).

(2) In order to sell a fermented or acidified food, a cottage food operation shall either:

(A) submit a recipe that has been tested by the United States Department of Agriculture or a cooperative extension system located in this State or any other state in the United States; or

(B) submit a written food safety plan for each category of products for which the cottage food operator uses the same procedures, such as pickles, kimchi, or hot sauce, and a pH test for a single product that is representative of that category; the written food safety plan shall be submitted annually upon registration and each pH test shall be submitted every 3 years; the food safety plan shall adhere to guidelines developed by the Department.

(3) A fermented or acidified food shall be packaged according to one of the following standards:

(A) A fermented or acidified food that is canned must be processed in a boiling water bath in a Mason-style jar or glass container with a tight-fitting lid.

(B) A fermented or acidified food that is not canned shall be sold in any container that is new, clean, and seals properly and must be stored, transported, and sold at or below 41 degrees.

(4) In order to sell a baked good with cheese, a local health department may require a cottage food operation to submit a recipe, at the cottage food operator's expense, to a commercial laboratory to verify that it is not a time-or-temperature control for safety food non-potentially hazardous before allowing the cottage food operation to sell the baked good as a cottage food.

(5) For a cottage food operation that does not utilize a municipal water supply, such as an operation using a private well, a local health department may require a water sample test to verify that the water source being used meets public safety standards related to E. coli coliform. If a test is requested, it must be conducted at the cottage food operator's expense.

(6) A person preparing or packaging a product as part of a cottage food operation must be a Department-approved certified food protection manager.

(7) Food packaging must conform with the labeling requirements of the Illinois Food, Drug and Cosmetic Act. A cottage food product shall be prepackaged and the food packaging shall be affixed with a prominent label that includes the following:

(A) the name of the cottage food operation and unit of local government in which the cottage food operation is located;

(B) the identifying registration number provided by the local health department on the certificate of registration and the name of the municipality or county in which the registration was filed;

(C) the common or usual name of the food product;

(D) all ingredients of the food product, including any color, artificial flavor, and preservative, listed in descending order by predominance of weight shown with the common or usual names;

(E) the following phrase in prominent lettering: "This product was produced in a home kitchen not inspected by a health department that may also process common food allergens. If you have safety concerns, contact your local health department.";

(F) the date the product was processed; and

(G) allergen labeling as specified under federal labeling requirements.

(8) Food packaging may include the designation "Illinois-grown", "Illinois-sourced", or "Illinois farm product" if the packaged product is a local farm or food product as that term is defined in Section 5 of the Local Food, Farms, and Jobs Act.

(9) In the case of a product that is difficult to properly label or package, or for other reasons, the local health department of the location where the product is sold may grant permission to sell products that are not prepackaged, in which case other prominent written notice shall be provided to the purchaser.

(10) At the point of sale, notice must be provided in a prominent location that states the following: "This product was produced in a home kitchen not inspected by a health department that may also process common food allergens." At a physical display, notice shall be a placard. Online, notice shall be a message on the cottage food operation's online sales interface at the point of sale.

(11) Food and drink produced by a cottage food operation shall be sold directly to consumers for their own consumption and not for resale. Sales directly to consumers include, but are not limited to, sales at or through:

(A) farmers' markets;

(B) fairs, festivals, public events, or online;

(C) pickup from the private home or farm of the cottage food operator, if the pickup is not prohibited by any law of the unit of local government that applies equally to all cottage food operations; in a municipality with a population of 1,000,000 or more, a cottage food operator shall comply with any law of the municipality that applies equally to all home-based businesses;

(D) delivery to the customer; and

(E) pickup from a third-party private property with the consent of the third-party property holder; and

(F) mobile farmers markets.

(12) Only food that is not a time-or-temperature control for safety food non-potentially hazardous may be shipped. A cottage food product shall not be shipped out of State. Each cottage food product that is shipped must be sealed in a manner that reveals tampering, including, but not limited to, a sticker or pop top.

(13) Alcohol may be used to make extracts, such as vanilla extract, or may be used as an ingredient in baked goods as long as the created product is not intended for use as a beverage.

(14) Time/temperature control for safety foods shall be maintained and transported at holding temperatures as set in the Department's administrative rules to ensure the food's safety and limit microorganism growth or toxin formation.

(15) A product assessment of pH and water activity may be used to show that a product is non-time or temperature controlled for food safety and does not require temperature control.

(c) A local health department shall register any eligible cottage food operation that meets the requirements of this Section and shall issue a certificate of registration with an identifying registration number to each registered cottage food operation. A local health department may establish a self-certification program for cottage food operators to affirm compliance with applicable laws, rules, and regulations. Registration shall be completed annually and the local health department may impose a fee not to exceed $50.

(d) In the event of a consumer complaint or foodborne illness outbreak, upon notice from a different local health department, or if the Department or a local health department 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 conditions for cottage food operations set forth in this Section, the Department or the local health department may:

(1) inspect the premises of the cottage food operation in question;

(2) set a reasonable fee for the inspection; and

(3) invoke penalties and the cessation of the sale of cottage food products until it deems that the situation has been addressed to the satisfaction of the Department or local health department; if the situation is not amenable to being addressed, the local health department may revoke the cottage food operation's registration following a process outlined by the local health department.

(e) A local health department that receives a consumer complaint or a report of foodborne illness related to a cottage food operator in another jurisdiction shall refer the complaint or report to the local health department where the cottage food operator is registered.

(f) By January 1, 2022, the Department, in collaboration with local public health department associations and other stakeholder groups, shall write and issue administrative guidance to local health departments on the following:

(1) development of a standard registration form, including, if applicable, a written food safety plan;

(2) development of a Home-Certification Self Checklist Form;

(3) development of a standard inspection form and inspection procedures; and

(4) procedures for cottage food operation workspaces that include, but are not limited to, cleaning products, general sanitation, and requirements for functional equipment.

(g) A person who produces or packages a non-potentially hazardous baked good that is not a time/temperature control for safety food for sale by a religious, charitable, or nonprofit organization for fundraising purposes is exempt from the requirements of this Section.

(h) A home rule unit may not regulate cottage food operations in a manner inconsistent with the regulation by the State of cottage food operations under this Section. This Section is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

(i) The Department may adopt rules as may be necessary to implement the provisions of this Section.

(Source: P.A. 101-81, eff. 7-12-19; 102-633, eff. 1-1-22.)