Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                          SB 202.1
                                               SENATE BILL NO. 202
                                           INTRODUCED BY G. HERTZ
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  A BILL FOR AN ACT ENTITLED: “AN ACT CLARIFYING EXEMPTIONS FOR PRODUCERS OF HOMEMADE
  FOOD OR HOMEMADE FOOD PRODUCTS; REVISING REQUIREMENTS FOR FARMER'S MARKETS;
  CLARIFYING COUNTY COMMISSION REGULATION OF FARMER'S MARKETS; CLARIFYING
  DEFINITIONS; RESTRICTING RULEMAKING AUTHORITY OF THE DEPARTMENT OF PUBLIC HEALTH
  AND HUMAN SERVICES AND LOCAL BOARDS OF HEALTH; AMENDING SECTIONS 7-21-3301, 50-49-202,
  50-49-203, 50-50-102, 50-50-103, AND 50-50-121, MCA.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          Section 1. Section 7-21-3301, MCA, is amended to read:
          "7-21-3301.   Establishment of markets and market houses. In addition to the powers specifically
  granted by the laws of the state and such other limitations and exceptions contained in the existing statutes of
  the state in reference to law regarding the debt-incurring power of boards of county commissioners, the boards
  of county commissioners in every county in Montana shall have the power to erect market houses to be located
  at the county seats of their respective counties, to establish and regulate markets, and to acquire the property
  necessary therefor for this. For the establishment and regulation of farmer's markets, the boards of county
  commissioners are subject to the requirements of Title 50, chapter 50, part 1."
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          Section 2. Section 50-49-202, MCA, is amended to read:
          "50-49-202. Definitions. For the purposes of this part, the following definitions apply:
          (1)      "Deliver" means to transfer a product as a result of a transaction between a producer and an
  informed end consumer. The action may be performed by the producer or the producer's designated agent at a
  farm, ranch, home, office, traditional community social event, other private property, or another location agreed
  to between the producer or agent and the informed end consumer.
          (2)      "Home consumption" means:
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68th Legislature 2023                                                                                            SB 202.1
           (a)     the consumption of food or a food product in a private home; or
           (b)     the consumption of food or a food product from a private home.
           (3)     "Homemade" means food or a food product that is prepared in a private home and that is not
  licensed, permitted, certified, packaged, labeled, or inspected per any official regulations.
           (4)     "Informed end consumer" means a person who is the last person to purchase a product, does
  not resell the product, and has been informed that the product is not licensed, permitted, certified, packaged,
  labeled, or inspected per any official regulations.
           (5)     (a) "Producer" means a person who harvests, produces, or prepares a product that may be
  consumed as homemade food or a homemade food product. The term includes a person operating a small
  dairy.
           (b)     The term does not include the entities listed in 50-49-203(1)(c).
           (6)     "Small dairy" means a place where no more than 5 lactating cows, 10 lactating goats, or 10
  lactating sheep are kept for producing milk.
           (7)     "Traditional community social event" means an event at which people gather as part of a
  community for the benefit of those gathering or for the benefit of the community, including but not limited to a:
           (a)     wedding;
           (b)     funeral;
           (c)     church or religious social;
           (d)     school event;
           (e)     farmer's market;
           (f)     potluck;
           (g)     neighborhood gathering;
           (h)     club meeting or social; or
           (i)     youth or adult outdoor club or sporting event.
           (8)     "Transaction" means an exchange of buying and selling, including the transfer of a product by
  delivery."
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           Section 3. Section 50-49-203, MCA, is amended to read:
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68th Legislature 2023                                                                                              SB 202.1
          "50-49-203.    Exemptions from regulations -- transactions -- information required -- exceptions.
  (1) (a) A state agency or an agency of a political subdivision of the state may not require licensure, permitting,
  certification, packaging, labeling, testing, sampling, or inspection that pertains to the preparation, serving, use,
  consumption, delivery, or storage of homemade food or a homemade food product under this part.
          (b)      This part does not preclude an agency from providing assistance, consultation, or inspection
  requested by a producer.
          (c)      A producer is not:
          (i)      a retail food establishment, a cottage food operation, or a temporary food establishment, as
  each term is defined in 50-50-102;
          (ii)     a wholesale food manufacturing establishment, as defined in 50-57-102; or
          (iii)    a dairy or a manufactured dairy products plant, as defined in 81-22-101.
          (d)      A producer is not subject to labeling, licensure, inspection, sanitation, or other requirements or
  standards of 30-12-301; Title 50, chapter 31 chapters 31 and 50; or Title 81, chapters 2, 9, 21, 22, or 23.
          (2)      Transactions pursuant to this part:
          (a)      must be directly between the producer and the informed end consumer;
          (b)      must be only for home consumption or consumption at a traditional community social event;
  and
          (c)      must occur only in this state and may not involve interstate commerce; and
          (d)      are not subject to regulation by a board of county commissioners pursuant to 7-21-3301.
          (3)      Except as provided in subsection (7), a producer shall inform an end consumer that any
  homemade food or homemade food product sold through ranch, farm, or home-based sales pursuant to this
  part has not been licensed, permitted, certified, packaged, labeled, or inspected per any official regulations.
          (4)      Except for raw, unprocessed fruit and vegetables, homemade food may not be sold or used in
  a retail food establishment, as defined in 50-50-102, unless the food has been licensed, permitted, certified,
  packaged, labeled, and inspected as required by law.
          (5)      Except as provided in subsection (6) and pursuant to this part, a producer may donate
  homemade food or homemade food products to a traditional community social event.
          (6)      A producer may not donate milk to a traditional community social event.
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68th Legislature 2023                                                                                              SB 202.1
          (7)      (a) Except for a temporary food establishment subject to 50-50-120, meat or meat products
  processed at a state-licensed establishment or a federally approved meat establishment, by the producer, or by
  any third party may not be used in preparation of homemade food that is sold pursuant to a transaction
  provided for in this part.
          (b)      Subsection (7)(a) does not apply to a producer who slaughters fewer than 1,000 poultry birds a
  year except that the producer is subject to the requirements of 9 CFR 381.10(c) and the recordkeeping
  requirements of 9 CFR 381.175. The poultry or poultry products may not be adulterated or misbranded.
          (8)      A small dairy shall:
          (a)      sample, test, or retest every 6 months for standard plate count, coliform count, and somatic cell
  count of milk or cream sold as homemade food pursuant to this part;
          (b)      sample, test, or retest every year for brucellosis for every lactating cow, lactating goat, or
  lactating sheep that is part of the small dairy; and
          (c)      maintain records for 2 years of all previous samples, tests, or retests, which must be provided
  to the department of livestock if the department suspects the small dairy is causing a foodborne illness."
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          Section 4. Section 50-50-102, MCA, is amended to read:
          "50-50-102. Definitions. Unless the context requires otherwise, in this chapter, the following
  definitions apply:
          (1)      "Consumer" means a person who is a member of the public, takes possession of food, and
  does not offer the food for resale.
          (2)      "Contract cook" means a person who specializes in a home food service and prepares food in
  an individual's domestic residence only for members of that household and house guests.
          (3)      "Cottage food operation" means a person who provides, manufactures, or packages cottage
  food products only in a kitchen in a registered area of a domestic residence and only for direct sale to a
  consumer in this state.
          (4)      "Cottage food products" means foods that are not potentially hazardous and are processed or
  packaged in a cottage food operation, including jams, jellies, dried fruit, dry mixes, and baked goods. Other
  similar foods that are not potentially hazardous may be defined by the department by rule.
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68th Legislature 2023                                                                                              SB 202.1
          (5)      "Department" means the department of public health and human services provided for in 2-15-
  2201.
          (6)      "Direct sale" means a face-to-face purchase or exchange of the cottage food product between
  the manufacturer or packager of a cottage food product and a consumer or individual purchasing the cottage
  food product as a gift. The direct sale may not be by consignment or involve shipping or internet sales.
          (7)      "Domestic residence" means a single-family house or a unit in a multiunit residential structure,
  whether rented, leased, or owned by the person in charge of the cottage food operation.
          (8)      "Farmer's market" means a farm premises, a food stand owned and operated by a farmer, or
  an organized market authorized by the appropriate municipal or county authority under 7-21-3301.
          (9)      "Food" means an edible substance, beverage, or ingredient used, intended for use, or for sale
  for human consumption.
          (10)     "Local board of health" means a county, city, city-county, or district board of health.
          (11)     "Local health officer" means a county, city, city-county, or district health officer, appointed by
  the local board of health, or the health officer's authorized representative.
          (12)     "Meat market" means an operation and buildings or structures in connection with the meat
  market that are used to process, store, or display meat or meat products for retail sale to the public or for
  human consumption.
          (13)     (a) "Mobile food establishment" means a retail food establishment that serves or sells food from
  a motor vehicle, a nonmotorized cart, a boat, or other movable vehicle that periodically or continuously changes
  location and requires a servicing area to accommodate the unit for cleaning, inspection, and maintenance.
          (b)      The term does not include:
          (i)      a motor vehicle used solely to transport or deliver food by a motorized carrier regulated by the
  state or the federal government;
          (ii)     a cottage food operation transport vehicle; or
          (iii)    a concession stand designed to operate as a temporary food establishment.
          (14)     "Nonprofit organization" means any organization qualifying as a tax-exempt organization under
  26 U.S.C. 501.
          (15)     "Person" means an individual, a partnership, a corporation, an association, a cooperative
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68th Legislature 2023                                                                                              SB 202.1
  group, the state or a political subdivision of the state, or other entity.
          (16)       "Potentially hazardous food" means food that requires time and temperature control for safety
  to limit toxin formation or the growth of pathogenic microorganisms.
          (17)       (a) "Raw agricultural commodity" means any food in its raw, unaltered state, including fruits,
  vegetables, raw honey, and grains. A raw agricultural commodity may be in a container if putting the commodity
  in a container does not alter the raw state.
          (b)        The term does not include an agricultural commodity that has been altered by being:
          (a)(i)     cooked;
          (b)(ii)    canned;
          (c)(iii)   preserved, except for drying;
          (d)(iv) combined with other food products; or
          (e)(v)     peeled, diced, cut, blanched, or otherwise subjected to value-adding procedures.
          (18)       "Registered area" means the portion of a domestic residence that has been registered as
  provided in 50-50-117 and in which food ingredients intended for cottage food products are transported or
  stored or the domestic residence kitchen where cottage food products are processed, packaged, or stored.
          (19)       "Regulatory authority" means the department, the local board of health, the local health officer,
  or the local sanitarian.
          (20)       "Retail" means the provision of food directly to the consumer.
          (21)       (a) "Retail food establishment" means an operation, whether mobile or at a temporary or
  stationary facility or location, that meets one or more of the conditions in subsections (21)(a)(i) and (21)(a)(ii)
  and that may include a central processing facility that supplies a transportation vehicle or a vending location or
  satellite feeding location. A retail food establishment:
          (i)        stores, processes, packages, serves, or vends food directly to the consumer or otherwise
  provides food for human consumption at a venue that may include:
          (A)        a restaurant;
          (B)        a market;
          (C)        a satellite or catered feeding location;
          (D)        a catering operation if the catering operation provides food directly to a consumer or to a
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68th Legislature 2023                                                                                                 SB 202.1
  conveyance used to transport people;
          (E)      a vending location;
          (F)      a conveyance used to transport people;
          (G)      an institution; or
          (H)      a food bank; and
          (ii)     relinquishes possession of food to a consumer directly or indirectly by using either a delivery
  service, as is done for grocery or restaurant orders, or a common carrier that provides deliveries.
          (b)      The term is not dependent on whether consumption is on or off the premises or whether there
  is a charge for food served to the public.
          (c)      The term does not include:
          (i)      milk producers' facilities, milk pasteurization facilities, or milk product manufacturing plants;
          (ii)     slaughterhouses, meat packing plants, or meat depots;
          (iii)    growers or harvesters of raw agricultural commodities;
          (iv)     a cottage food operation;
          (v)      a person that sells or serves only commercially prepackaged foods that are not potentially
  hazardous;
          (vi)     a food stand that offers raw agricultural commodities;
          (vii)    a wholesale food establishment, including those wholesale food establishments that are
  located on the same premises as a retail food establishment;
          (viii)   a kitchen in a domestic residence used for preparing food to sell or serve at a function by a
  nonprofit organization as provided in subsection (21)(c)(xiii);
          (ix)     custom meat and game animal processors that receive from an owner the remains of a carcass
  and process those remains for delivery to the owner for the exclusive use in the owner's household by the
  owner or members of the owner's household, including the owner's family pets, or of the owner's nonpaying
  guests or employees. For this exemption to apply, the carcass must be kept separate from other meat food
  products and parts that are to be prepared for sale.
          (x)      private, religious, fraternal, youth, patriotic, or civic organizations that serve or sell food to the
  public over no more than 4 days in a 12-month period;
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68th Legislature 2023                                                                                                SB 202.1
            (xi)