Government Regulators Target 11-year Old’s Cupcake Business
This story about an industrious, entrepreneurial youngster caught the attention of the Madison County Health Department, inspiring the synaptic-challenged, bureaucratic buffoonery of nanny-state nincompoops to rear its empty head and threaten the child with a sundry of penalties if she does not procure proper permits, licenses, and pay corresponding fees. The story referencing the state-sponsored terrorist threats against a child of insufficient age, to understand legalese or comprehend the law, is no longer available from the Belleville News Democrat’s site, so I will summarize here.
The story was encapsulated by this brilliant political cartoon, the artist-of-which, I must say, shares some of my DNA. Aside from the over-the-top bullying by the State, this is primarily a litmus test to see how far they can push us, in this case, tugging at our heart strings with an 11 year old girl who has beckoned the ire of the State.
A perusal of the county website, http://www.madisonchd.org/index.shtml, shows the chief administrator as:
Toni Corona, B.S., L.E.H.P.
Public Health Administrator
The Board of Health Members roster is here: http://www.madisonchd.org/board-of-health.shtml
Of course, the government does this all under the pretense that they are watching out for our safety; and such regulations are intended to prevent the spread of disease and injury from businesses who fail, or refuse, to implement prudent and reasonable precautions. This power, called the “police power” (which has nothing go do with police as we commonly refer to them) is regarded as in inherent power of the State to provide for the protection of the public health, safety, welfare, and morals. The police power is undefined, broad, and unlimited. It does not derive from any constitution. It’s powers are limited by the constitution, meaning it cannot cause you to be arrested or searched without constitutional limitations applying, but the scope of its legislation is so encompassing that it does need a constitution to bestow it. It is the inherent power of the State.
The purpose of this article is not to provide an in-depth analysis of the police power because first, the discussion on the validity of the State, sovereignty, natural rights, and consent, would need to be analysed. This article is a diatribe against a county regulatory board which has capriciously and zealously targeted a harmless 11 year-old girl with precocious baking abilities, and painting her as a threat to the public health in-need of governmental oversight in order to secure the confidence and soothe the minds of the fearful masses from contracting life-threatening pathogens or disease from the pre-pubescent, dough-flinging wench.
As with most bureaucratic buffoonery, the regulators will allege a violation, yet fail or refuse to cite which specific law is being broken. They will claim that you need a permit or license, or that you can’t do something, but never articulate the specifics supporting their claims. If we are to believe the Health Department’s claim, we need to find the law they refuse to cite. I found 3 possible laws/regulations which could possibly apply. The result of my research revealed the Cottage Food Preparation Act, which addressed ONLY food sold at farmer’s markets.
The first source would be the Madison County Zoning Ordinance – http://www.co.madison.il.us/planning/PDF/ZoningOrdinance.pdf
This would address the use of the home, as zoned, for baking.
The second source would be the Illinois Food Preparation Act – http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1584&ChapterID=35
And the third would be the Illinois Food Handling Regulation Enforcement Act. – http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1578&ChapterID=35
The most applicable and plausible regulation is the Food Handling Regulation Enforcement Act (410 ILCS 625/4), which allows for “Cottage food operation”.
If you want to understand legislation, there is no better resource than the House or Senate debates as to the intent and application of that Legislation. I researched what the County failed to define and found some very telling information. It is my contention that the law does NOT apply to Chloe, and others like her who are not corporate entities or otherwise dealing with hazardous foodstuffs being sold to the public.
My research and findings follow. In the mean-time, If I were Chloe, I would continue to do what I do and wait for the paper tiger to bare its fangs and let the chips fall where they may. I seriously doubt there would be any fines or penalties in her case.
Madison County Zoning Ordinance
PUBLIC HEALTH (410 ILCS 650/) Sanitary Food Preparation Act. ~ http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1584&ChapterID=35
PUBLIC HEALTH (410 ILCS 625/) Food Handling Regulation Enforcement Act. ~ http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1578&ChapterID=35
Cottage Food Preparation added by Public Act 097-0393 http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=097-0393&GA=97
SB0840 Enrolled LRB097 04584 KTG 44623 b
5/3/2011 @ Page 47 This bill relates to food sold at Farmer’s Markets ~ http://www.ilga.gov/senate/transcripts/strans97/09700035.pdf
5/27/2011 @ Page 13 Voting on the Bill ~ http://www.ilga.gov/senate/transcripts/strans97/09700054.pdf
5/23/2011 @ Page 34 through Page 43 Addresses food sold at Farmer’s Markets and discusses how home bakers are affected. THIS is the important discussion you want to read. In the discussion it states that the Amish are already allowed to sell bake goods, and the Bill does not affect them. On Page 37, it discusses specifically bake sales held by groups or churches and the determination is that it does not affect what they do, it just adds the definition of what a farmer’s market is. At the top of Page 38, Representative Dugan says, “We think… I think, Representative (speaking to Representative Eddy) they’re currently exempt under current law.” ~ http://www.ilga.gov/house/transcripts/htrans97/09700062.pdf
TEXT OF THE ILLINOIS COTTAGE FOOD PREPARATION PROVISION
(410 ILCS 625/4)
Sec. 4. Cottage food operation.
(a) For the purpose of this Section:
“Cottage food operation” means a person who produces or packages non-potentially hazardous food in a kitchen of that person’s primary domestic residence for direct sale by the owner or a family member, stored in the residence where the food is made.
“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.
“Potentially hazardous food” means a food that is potentially hazardous according to the Federal Food and Drug Administration 2009 Food Code (FDA 2009 Food Code) or any subsequent amendments to the FDA 2009 Food Code. 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. In accordance with the FDA 2009 Food Code, potentially hazardous food does not include a food item that because of its pH or Aw value, or interaction of Aw and pH values, is designated as a non-PHF/non-TCS food in Table A or B of the FDA 2009 Food Code’s potentially hazardous food definition.
(b) Notwithstanding any other provision of law and except as provided in subsections (c) and (d) of this Section, 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 all of the following conditions are met:
(1) The food is not a potentially hazardous baked
good, jam, jelly, preserve, fruit butter, dry herb, dry herb blend, or dry tea blend and is intended for end-use only. The following provisions shall apply:
(A) The following jams, jellies and preserves are
allowed: apple, apricot, grape, peach, plum, quince, orange, nectarine, tangerine, blackberry, raspberry, blueberry, boysenberry, cherry, cranberry, strawberry, red currants, or a combination of these fruits. Rhubarb, tomato, and pepper jellies or jams are not allowed. Any other jams, jellies, or preserves not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6.
(B) The following fruit butters are allowed:
apple, apricot, grape, peach, plum, quince, and prune. Pumpkin butter, banana butter, and pear butter are not allowed. Fruit butters not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6.
(C) Baked goods, such as, but not limited to,
breads, cookies, cakes, pies, and pastries are allowed. Only high-acid fruit pies that use the following fruits are allowed: apple, apricot, grape, peach, plum, quince, orange, nectarine, tangerine, blackberry, raspberry, blueberry, boysenberry, cherry, cranberry, strawberry, red currants or a combination of these fruits. Fruit pies not listed may be produced by a cottage food operation provided their recipe has been tested and documented by a commercial laboratory, at the expense of the cottage food operation, as being not potentially hazardous, containing a pH equilibrium of less than 4.6. The following are potentially hazardous and prohibited from production and sale by a cottage food operation: pumpkin pie, sweet potato pie, cheesecake, custard pies, creme pies, and pastries with potentially hazardous fillings or toppings.
(2) The food is to be sold at a farmers’ market.
(3) Gross receipts from the sale of food exempted
under this Section do not exceed $25,000 in a calendar year.
(4) The food packaging conforms to the labeling
requirements of the Illinois Food, Drug and Cosmetic Act and includes the following information on the label of each of its products:
(A) the name and address of the cottage food
(B) the common or usual name of the food product;
(C) all ingredients of the food product,
including any colors, artificial flavors, and preservatives, listed in descending order by predominance of weight shown with common or usual names;
(D) the following phrase: “This product was
produced in a home kitchen not subject to public health inspection that may also process common food allergens.”;
(E) the date the product was processed; and
(F) allergen labeling as specified in federal
(5) The name and residence of the person preparing
and selling products as a cottage food operation is registered with the health department of a unit of local government where the cottage food operation resides. No fees shall be charged for registration.
(6) The person preparing and selling products as a
cottage food operation has a Department of Public Health approved Food Service Sanitation Management Certificate.
(7) At the point of sale a placard is displayed in a
prominent location that states the following: “This product was produced in a home kitchen not subject to public health inspection that may also process common food allergens.”.
(c) Notwithstanding the provisions of subsection (b) of this Section, if the Department of Public Health or the health department of a unit of local government has received a consumer complaint or 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 exception for cottage food operations pursuant to this Section, then it may invoke cessation of sales until it deems that the situation has been addressed to the satisfaction of the Department.
(d) Notwithstanding the provisions of subsection (b) of this Section, a State-certified local public health department may, upon providing a written statement to the Department of Public Health, regulate the service of food by a cottage food operation. The regulation by a State-certified local public health department may include all of the following requirements:
(1) That the cottage food operation (A) register with
the State-certified local public health department, which may include a reasonable fee set by the State-certified local public health department notwithstanding paragraph (5) of subsection (b) of this Section and (B) agree in writing at the time of registration to grant access to the State-certified local public health department to conduct an inspection of the cottage food operation’s primary domestic residence in the event of a consumer complaint or foodborne illness outbreak.
(2) That in the event of a consumer complaint or
foodborne illness outbreak the State-certified local public health department is allowed to (A) inspect the premises of the cottage food operation in question and (B) set a reasonable fee for that inspection.
(Source: P.A. 97-393, eff. 1-1-12.)