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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

If Illinois Farmer’s Markets and Cottage Industries can’t stand the heat, get the hell out of the kitchen

seal.gifI heard the fears of the small, local, sustainable, locavore regarding the Food Safety Modernization Act, which is why exclusions for on-farm sales and sales at farmer’s markets, and direct sales to grocery stores and restaurants were added, along with additional protections with the Tester/Hagen Amendment. However, it appears that what some in the movement really wanted is no oversight at all.

There has been a rash of bills this year in several states that severely limit the right of state and local health departments from food safety inspections. Now comes the “Land of Lincoln:”

HB 1483 – Amends the Food Handling Regulation Enforcement Act. Provides that, notwithstanding any other provision of law, neither the Department of Public Health nor the health department of a unit of local government may regulate the serving or sale of food at a charitable fundraising event or at a farmers market.

SB 0137 – Amends the Food Handling Regulation Enforcement Act. Sets forth definitions for “cottage food operation” and “non-potentially hazardous food”. Provides that notwithstanding any other provision of law, 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 certain conditions are met. Amends the Sanitary Food Preparation Act to make a corresponding change.

I certainly understand the desire to not have any rules. I am still mad that I cannot smoke a cigar and drink a beer on the top of the ferry on summer evenings on the way home. But, seriously, no food safety regulation? What does the local movement have to hide?

Having some level of local oversight protects consumers and protects the local food movement. Local oversight protects consumers from a few in the local movement that might take food safety shortcuts, and it protects the local food movement from me. Local oversight helps assure that the food is small, local, sustainable, locavore and safe. Safe food makes for no illnesses, and no illnesses means no lawsuits.

  • Bill Anderson

    The problem is when local and state-level inspectors take their marching orders from higher-level agencies like FDA.
    That is exactly what happened in WI last year when DATCP tried cracking down on raw milk sales. Info obtained through the Freedom of Information Act showed that they were taking their marching orders directly from FDA and from big dairy processing interests.
    There is good reason why the local foods movement distrusts the health authorities. There is also good reason why we need to make sure there is reasonable oversight of food safety. Perhaps what is really needed is more independence and democracy at the local level health dept’s. They should be serving and answering to the community they work in, not higher-level health agencies.

  • Bill, I think your experience with DATCP may color your view a bit. I deal with local and state inspectors all the time – including Wisconsin. I find them to be a professional and independent lot that many times think the FDA is full of ….. well, what they hope not to find in the establishment that they are inspecting.
    Sure, I am sure there are exceptions to every rule, but I have found health officials to be concerned about public health (as they believe it) and in educating producers – small and large – how to avoid problems.

  • Steve

    I want the oversight…the more the better….while most local food operations are pretty good I’ve seen a few that make the poultry king of Iowa who made national news a couple months ago look like a boy scout. All it takes is one rotten “local foodie” to kill people. When it comes to food I want to the health inspector there.

  • dangermaus

    Deregulating the farmers’s markets makes more sense if you understand how incredibly pig-headed and megalomaniacal Chicago inspectors are…. These are the morons who will let restaurants go years without an inspection, yet do idiotic things like order Frontiera Grill (and other world-famous restaurants) to THROW AWAY thousands of dollars’ worth of curing pork because they’re too stupid to look up how ham is made, or listen to reason. This being Chicago, I wouldn’t be surprised if they were looking for a bribe.
    They are a living example of how government regulation always, always, always f*cks stuff up..
    Marler, I thought you’d be happy with IL now that you’re going to be the main person benefiting from the Jimmy Johns greens contamination.

  • dangermaus:
    You are slightly over the edge on my new policy – http://www.marlerblog.com/lawyer-oped/comments-on-blogs—the-good-bad-and-ugly/
    1. Don’t be a jerk. Nobody likes jerks.
    2. Don’t use profanity. The English language is vast and magnificent.
    3. Don’t be a troll. (Troll: Commenter who makes outrageous or provocative statements purely in order to derail discussion.) You know who you are.
    4. No spam, no solicitation, no links to porn, no internet detritus of similar ilk. Sell us on your point of view, not your Super-Slanket!
    5. No personal attacks at the author or fellow commenter. Substance, people. Substance.
    6. Seriously, don’t be a jerk.
    You do seem like a generally smart person. Why don’t you step it up a notch and cut out the personal attacks?
    So, do you think that the answer to some bad inspectors should be no inspection at all?
    Also, can you explain what: “Marler, I thought you’d be happy with IL now that you’re going to be the main person benefiting from the Jimmy Johns greens contamination” means?

  • Wes King

    Hi Bill,
    My name is Wes King I work for the organization Illinois Stewardship Alliance that has been working with Senator Koehler in Illinois to introduce SB 137 the Cottage Food bill. I find your lumping of our bill together with HB 1483 to be unfair and misleading. While HB 1483 is exactly what you say it is a bill to remove all regulation and oversight on farmers markets SB 137 is not. We are not involved with HB 1483 and do not support HB 1483. We agree that local oversight protects the local food movement.
    Unlike your assertion, SB 137 contains many provisions that retain oversight of farmers markets. Specifically the fact that all cottage food operations will have to register with the IL Department of Public Health and the Illinois Department of Agriculture. In addition, in order to operate as a cottage food operation you will have to take a health department approved Food Service Sanitation Management course and recieve the corresponding certification. Also, cottage food operations will have to label their products to disclose that it was produced in a facility that was not inspected by the state. And we are talking about specifically loosening restrictions only on FDA defined non-potentially hazardous food items from home kitchens sold at farmers markets, something many of our surrounding states allow already (Minnesota, Michigan, Ohio, Kentucy).
    Wes King

  • Donnie Simmons

    The issue with HB1483 isn’t about the FDA, raw milk or any other such thing. This is about eliminating basic simple food rules because charitable organizations believe they don’t cause foodborne illnesses and since they raise money for good causes should be allowed to do what they want, where they want, when they want. They want to make foods at home than serve them to the public with no basic sanitation controls in place, to cook pork loins in the bus barn, to have BBQ beef in a cow pasture (actually happened and resulted in a large E-Coli outbreak in Illinois). If this legislation is passed you will have charitable food vendors at events operating under no regulations set up next to a food vendor that does it as a business having to comply with simple basic food requirements (like handwashing) and there will be absolutely nothing a local health department can do. Remember this when eating that chili at the local PTA fundraiser next time you visit Illinois. I wonder where that bratwurst came from the Rotarians are serving. On a lighter side, this will reduce the workload tremendously for local health departments that will no longer need to spend all those weekends inspecting these operations. If as a result there are more foodborne illness outbreaks as a result of this bill than maybe all that free time will be spent doing investigations. Mmm, I see I did not think that out very well.
    As for SB0137, we all know that non-potentially hazardous foods like spinach, lettuce, peanut butter, etc cannot cause foodborne illness or even death.
    If your interested in what the temporary foodservice rules are in Illinois, they can be found at :

  • Wes, thanks for the input – I really appreciate it. A few questions: Why do you not want oversight? Is it because you feel it is unnecessary? Trying to save tax dollars? A recognition that local and state health departments were not really doing much oversight anyway?
    I am a big supporter of our farmer’s markets, but I do believe health department inspections play a valid role in both public health and protecting producers.

  • Greg Pallaske

    Back when I was with WI public health, a local PHD tried to close down a refreshment stand at a little league baseball park. The stand had a dirt floor, no running water/hand washing, no refrigeration, and lots of raw wood. yet they cooked (from raw) brats, burgers, etc and served for hours at a time. In response to this horrid act of heavy-handed government, a state senator rammed thru a bill exempting all food service at youth sports activities from any kind of inspection or regulation.
    A few years later I was at a hearing seeking funds for more inspectors. A different state legislator asked me (in all seriousness) why “we” even need to inspect restaurants- after all they are self-regulating. Asked to explain, his logic was that if a restaurant served unsafe food people would notice and word would spread around the community. people would stop going and they would go out of business – voila: self-regulating. When I asked him if it was ok if his 4-year old daughter had to lose a kidney because he didn’t “hear about” the bad food in time, his response was “don’t use your bureaucratic scare tactics on me”.
    Let’s face it, we live in a time where people have already made up their mind and don’t want to be confused by facts. All we can do is shake our heads and try to educate our law-makers, a little at a time. If a little old lady wants to make chili to sell at the church fund-raiser, she doesn’t need to go to school to get a degree. But it would be nice if someone could check that she had a refrigerator big enough to cool the chili off overnight. Balance, people, balance!

  • dangermaus

    (Feel free not to post this) What I mean is that I’d be shocked if anyone who got sick is getting anywhere near as big a check as you are for all of this.

  • Bill Anderson

    I have a friend who is a cheese monger in Chicago. She once got cited by the health inspectors because of mold growing on a piece of cheese. (mold is supposed to grow on this particular cheese, but the health inspector wouldn’t listen to her). She also told me that a charcuterie-curing license in Chicago is $10,000, and so there is only one place in the entire city that has one. Every other chef making their own cured meats is doing it in secret because they can’t afford the $10,000 license.
    Yes, there is such a thing as over-bearing food regulations, that are not only heavy-handed but actually counter-productive because they discourage people from wanting to participate in the system and so they are compelled to operate outside of the system. It is not limited to my experience with DATCP, although that has certainly been an shining example of overbearing and incompetent regulation of dairy.

  • Boy, if my clients did not get more than me in a case, I would not be in business very long.

  • Wes King

    Donnie Simmons: non-potentially hazardous food is clearly defined and the way I understand it spinach, lettuce, and peanut butter are non-considered non-potentially hazardous food items under the FDA definition. In illinois unprocessed and unpackaged spinach and lettuce sold directly to customers at farmers markets have never been regulated by health departments in Illinois and I know of no food borne illnesses that have come from these kind of farmers.
    Bill: It is not a desire to have no oversight just scale and risk appropriate oversight. The current requirements in Illinois to sell baked goods, jams and jellies, dried herbs and other non-potentially hazardous food items (as defined by the FDA) mandate that all items be produced in a state inspected commerical kitchen, something that is a huge finacial barrier to getting into the local food value-added business, which in no way prevents a careless person from producing contaminated or adultered food. And Community kitchens are few and hard to get access to in Illinois and when you are talking about new start-up businesses selling at farmers markets where margins are slim, the cost of getting space at a community kitchen can be a financial barrier too. Ideally, SB 137 would allow new start-up operations to test recepies and expermeint with new business models, if such a cottage food operation beleived that they had a good product and model ideally they would then move to the next level of finding rental space in a certified community kitchen arrangement, then if they continued to be successfull they would then hopefully build their own certified kitchen and move their small value-added local food business to the next level, that is why the bill contains a total sales threshold. SB 137 is a stepping stone for new start-ups into the current regulatory framework that was desinged for large processors and value-added producers not smal some one selling small amounts at a farmers market or a farmer diversifying the products he/she offers at a farmers market.
    Its is my understanding that food borne illnesses most often are the result of human error and unsanitary preperation or production techniques not whether or not an item was produced in a state inspected and certified kitchen, that is why SB 137 mandates the cottage food operation have a public health approved Food Service Sanitation Management Certificate. And so we don’t have things become the wild west of small cottage food operations we required that cottage food operations register with the state so we can have some oversight over them.

  • So, it comes down to the mandatory use of commercial grade kitchens?
    As for potentially hazardous foods. I think this is the complete FDA list:
    Potentially Hazardous Food is a term used by food safety organizations to classify foods that require time-temperature control to keep them safe for human consumption. A PHF is a food that:
    Contains moisture – usually regarded as a water activity greater than 0.85
    Contains protein
    Is neutral to slightly acidic – typically having a pH between 4.6 and 7.5
    The US Food and Drug Administration (FDA) Food Code identifies the following examples of PHF’s:
    Meat (beef, pork, lamb)
    Poultry (chicken, turkey, duck)
    Shellfish and crustaceans
    Eggs (except those treated to eliminate Salmonella)
    Milk and dairy products
    Heat-treated plant food (cooked rice, beans, or vegetables)
    Baked potatoes
    Certain synthetic ingredients
    Raw sprouts
    Tofu and soy-protein foods
    Untreated garlic and oil mixtures
    So, other than the above list, all other foods can be produced in a cottage kitchen?

  • Wes King

    Yeah basically it comes down to the mandatory use of commerical grade kitchens.
    That is essentially (minus the jargon the actual definition inlcudes) the definition that is used in the bill. As the bill is currently written anything beyond the what you have listed would be allowed with the exception of home canned acidified vegetables.

  • Tim Lukens

    In the years that I have been a small scale producer of dairy products, one common thread that I have noticed, with the folks that demand no licensing or oversight is there seems to be an unstated financial poverty position, and they claim that they shouldn’t have to take any financial risk of any kind. Why is it such a diffucult concept to have to pay a licensing fee, and make a reasonable investment in creating a sanitary place to work in? Now, from what I have read earlier, there are places where fees are outrageous that it truly does stop small scale entry into the marketplace, but here in Washington State that has not been my experience. And I have found Washington State inspectors at all levels to be sensible helpful people. I think a lot of the motivation behind this type of legislation is that people have really gotten lazy in regards to be willing to take on risk, yet want to have the benefit of what free enterprise can offer, so therefore they are seeking laws that exempt them. With the budget problems we have everywhere fees for oversight are a cost of doing business. Large scale businesses employ Quality Control personnel, small scale operators should be thankful that the WSDA is available as a resource, I am.

  • Wes King

    SB 137 in Illinois is not about fees for licensing and inspection it is about the Capital barrier. Yesterday, I was at an event talking to farmers market managers about policy and the bill. I was told by one manager that works at a non-profit that organizes a couple farmers markets, they thought about re-doing their kitchen at the non-profits building to make it a commerical certified kitchen so they could operate a community kitchen and small business incubator. They thought again when they found out it was going to cost them around $100,000 to build that certified kitchen. That to me any many others across the country is not “a reasonable investment in a sanitary workplace” for someone who is looking to produce items for sale at farmers markets.

  • Donnie Simmons

    You are right there have been no outbreaks to my knowledge of any raw vegetable sold at a farmers market to have caused a foodborne illness. My point was that just saying a food does not meet FDA’s or the Illinois Department of Public Healths definition of being potentially hazardous does not mean it cannot make people sick if processed and handled incorrectly. Farmers markets are a way for fresh locally grown agricultural products to be sold to the public which we can agree has no need for regulatory control. When you take it one step further into processing that is where the problems start to occur. Rather than do this in an inspected kitchen under permit by the local health department, the plan is to do all this food preparation, storage, and handling in home kitchens. I have an individual in my county who has established a bakery on his farm that sells his products strictly to farmers markets. We permit him, we inspect him, and we have had no problems. This has worked out great for all involved. I do not understand why that system needs to change.
    As for the certified manager you mentioned. That program is also under assault here in Illinois. My main question would be if LHD’s are not permiting or inspecting, what oversight is there to assure that a CFM is there.
    I am thrilled to hear your organization is opposed to HB1483 and look forward to working with you on making sure it does not become law.

  • Doc Mudd

    Well said, Tim!
    There really is a lot of useful talent and experience made available to food producers through health departments, FDA, USDA, etc.
    The unsubstantiated ‘poverty plea’ is what we hear most often, but the underlying agenda is simply to saddle professional operatons with regulations by pushing industry legislation, then exempting out amateurs as a special class with a cry of “size appropriate”.
    If the martyrs and activists had been paying attention, they might have noticed that food safety priorities and intensive quality control have only made professional businesses stronger, more consistent, much more difficult for any weekend warrior, however exempt and grant-funded, to compete against (“We can’t compete!” – that’s what we’re hearing on this thread, garbled as those arguments are).
    Safety and quality – that’s good business. Always has been. It always shows through.
    Excuses, exemptions & cheesy salesmanship are never a satisfactory substitute.
    Easy for the ‘little guys’ to get caught up full-time in bashing and libeling ‘the big enemy’ to the complete exclusion of intelligently managing their own little shop. Negative campaigning and poisoning the well have their limitations
    Consumers recognize and reward professional quality. If you value consumers, really value them, you will delight in operating professionally and safely meeting the needs of sensible customers and their families.

  • Tim Lukens

    Wes, $100,000.00 divided by / for example 1000 people that are serious, comes to $100.00 each. A small investment individually. Community markets are exactly that, community. In Bellingham Washington many people banded together, and with some help from the city accomplished a multi million dollar project. And much of the money was raised by the farmers market and market supporters. I don’t buy your poverty argument.

  • Bill Anderson

    There is much to be said about the problems with “one size fits all” regulations.
    I have nothing against training, educating, and licensing cheese makers. But when the official state test which all licensed WI cheese makers must pass in order to make cheese, is geared entirely towards industrialized cheddar and mozz. production, there is a big problem.
    One of the questions I distinctly recall from this test was “the surface of the cheese shall be smooth and free from mold.”
    Well, if I was making a commodity block cheddar, yes that is what I would want. As an artisan cheese maker, knowing full well that the test is written for industrialized cheese makers, I knew how to answer this question the way they wanted.
    But what about those of us who want to make brie, blue, or cloth-bandaged cave-aged cheddar? The surface is not only rough, but it is full of mold!
    I could go on and on about this subject. “One size fits all” is a really bad idea. You absolutely need to consider both size and type of operation when you craft regulation.

  • Tim Ryan

    Thanks Wes

  • awesome discussion above; changing the subject a little….does anyone have experience or thoughts about rinsing meats and produce with ozonated water to kill bacteria and viruses?

  • Robert

    Our farmers are complaining about any oversight on their behavior at the markets or the farms. Folks, we have 20 new human pathogens in the last 50 years in our food safety (according to FDA). We have increased levels of kids with allergies, many people with immuno-comprised systems, and a lot more elderly that need us to do the right thing when it comes to OUR FOOD system. Safe food starts on the farm and moves its way to processors, of any size.

    How many of you reading this blog have actually followed your favorite farmer(s) back home to see how they are growing and handling your FOOD? The whole USDA “Know your farmer” thing is not well thought out. To know your farmer, you must go to the farm, not just chat with them at their market booth. That is plain naive to think that you are learning anything scientifically-based about their farm operation at the market! Do you know many market vendors sell produce grown by others – did you follow those FOOD providers back to their farms? At the market, get to know the farmer – ask them directly about their pesticide use and records – many farmers I work with don’t know what their Restricted Entry Intervals (a worker safety issue) and their Pre-harvest Intervals (a consumer safety issue) are, so many consumers are consuming pesticide residuals above EPA-allowed limits. Is this a good thing? What about this fact in light of the new push to get more locally-grown produce into their neighboring schools? With the Tester Amendment pretty much allowing small farmers out of any oversight, this is a nightmare waiting to happen. How long will it be before some soccer mom has a salad bar tested for pesticide residues and pathogens and the stuff hits to fan? And, the current USDA requirements for school food purchases to be reimbursed by federal dollars do NOT have any requirements for GAPs – Bill, take note. Do you really think your local department of agriculture is going out to all farms and checking on their chemical use? (in CA, yes, but in most states, no). What wrong with requiring toilets and handwash sinks with soap and potable water on farms? What’s wrong with requiring the use of ONLY potable water for washing vegetables that were just picked? Most people don’t realize that vegetables and fruit, like roses in a vase, uptake water – and whatever else is in that water (pathogens, chemicals) – through the cut stem or other cut areas, like are created when we chop up lettuce. Think about that! You cannot wash off a pathogen or chemical once it is inside lettuce, tomatoes, melons. If you don’t believe this is true, a perfect example is sprouts – the roots can uptake E. coli from production water into the head of the sprout and you cannot get to it with chlorine/hydrogen peroxide. Clean hands, proper use of approved chemicals (even organic guys use chemicals), keeping animal feces away from growing areas, appropriate water quality for the use, sanitized harvest bins, sanitizable food contact surfaces, watching out for cross-contamination, proper temperature control, etc. Why is this asking too much of anyone producing and processing FOOD? If you decide to grow and process FOOD, you are taking on a BIG responsibility – period. Farmers and processors, regardless of their size, have no right to treat our food system and consumers so casually.

  • Diana Sheffer

    Mr. Marley,
    I certainly understand the need for regulation of the cottage food industry and am willing to comply with everything in it, getting the Food Sanitation license, etc. . My problem is that in order to sell at a farmers’ market you have to be registered in the municipality where you live. I live in Chicago and haven’t been able to find out how to register? Why is everything always so much more complicated here? It puts suburbanites at an advantage, wouldn’t you say?