Rule-Making Notices (Hearing Notices)

•   DATCP is authorized to adopt temporary emergency rules under s. 227.24, Stats., if emergency rules are needed to protect the public health, safety or welfare pending the adoption of “permanent" rules on the same subject.

Related statutes and rules

DATCP administers Wisconsin's food safety and labeling laws under ch. 97, Stats., including food processing plant license requirements under s. 97.29, Stats. (as modified by 2009 Wis. Act 101). DATCP has adopted food processing plant licensing rules under ch. ATCP 70, Wis. Adm. Code.

A person who processes food for sale or distribution is generally required to hold a state food processing plant license under s. 97.29, Stats. (there are certain exemptions). Persons who are engaged in dairy or meat processing, or who operate retail food establishments, must be licensed under other statutes. Local food license and zoning regulations may apply in some cases.

2009 Wis. Act 101 exempted, from state licensing under s. 97.29, Stats., persons who home-can acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social events or farmers' markets, provided that the person receives no more than $5,000 from those sales during the license year. Act 101 does not exempt those persons from other state license requirements that may apply, nor does it exempt them from local licensing or zoning ordinances that may apply.

Plain language analysis

Home Canning for Retail Sale

Under this emergency rule, a person who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, farmers' market or farm roadside stand is exempt from a food processing plant license under s. 97.29, Stats, if all of the following apply:

•   The person is an individual, not a legal entity such as a corporation.

•   The individual receives no more than $5,000 during the license year from those sales. If 2 or more individuals home-can acidic, acidified or fermented vegetable or fruit products at the same home address, none of those individuals qualifies for the license exemption unless their combined gross receipts from the sale of those products totals no more than $5,000.

•   The canned products have an equilibrium pH value of 4.6 or lower. The individual must test the first batch of canned product produced according to each separate recipe used by the individual in each license year, to verify that canned products produced according to that recipe meet this pH requirement. The individual must keep, for at least 2 years, a record of each pH test.

•   The individual registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.

•   The individual completes a home-canning safety course, or follows a written recipe (including ingredients and canning procedures) that reliably ensures the safety of each home-canned product.

•   The individual discloses to potential buyers, by means of a sign or placard, that the canned products “are homemade in a kitchen that has not been subject to state inspection."

•   Each canned product is properly labeled to include all of the following:

□   The name and address of the individual who canned the product.

□   The date on which the product was canned.

□   The following statement: “This product was made in a home not subject to state licensing or inspection."

□   A list of ingredients in descending order of prominence (major ingredients must be of vegetable or fruit origin). The list must include the common name of any ingredient that originates from milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts or soybeans.

•   The individual keeps a complete written record of every batch of canned product.

□   The batch record must include the name of the product, the product recipe (including procedures and ingredients), the amount of the product batch canned and sold, the canning and sale dates, the sale location, gross sales receipts, the results of any pH test conducted on the product, and the disposition of any product not sold.

□   The individual must keep the record for at least 2 years after the individual sells or otherwise disposes of the product, and must make that record available to DATCP for inspection and copying upon request.

Maple Sap Processed for Sale to Other Processors

Under this rule, a person who processes maple sap to produce maple syrup or concentrated maple sap for sale to another processor for further processing is exempt from licensing under s. 97.29, Stats., if all of the following apply:

•   The person receives less than $5,000 from those sales in a license year.

•   The person registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.

•   The person keeps a written record of each sale, retains that record for at least 2 years, and makes the record available to DATCP for inspection and copying upon request. The record must include the name and address of the purchaser, the date of sale, the amount of maple syrup or concentrated maple sap sold, and the sale price.

Comparison with federal regulations

There is no federal law that addresses these issues, or compels DATCP to adopt this emergency rule.

Comparison with rules in adjacent states

Minnesota:

Minnesota exempts a person from licensing as a food processor if the person produces less than $5,000 of non-potentially hazardous food or less than $5,000 of home-canned acidified food. Home-canned acidified foods may only be sold at community or social events or farmers' markets in Minnesota. A point-of-sale placard and the product label must disclose that the product was produced in an unlicensed and uninspected home setting. The product label must also disclose the name and address of the processor and the date the goods were processed. Wisconsin's new law (2009 Act 101) was influenced by Minnesota's law.

Illinois and Michigan:

Illinois and Michigan have no laws related to home-processed foods. All food processed for sale to the public in Illinois and Michigan must be processed in a licensed facility.

Iowa:

In Iowa, individuals may annually process up to $20,000 in potentially-hazardous baked goods (including soft pies and bakery products with a custard or cream filling) at a licensed “home food establishment" for sale on the premises (the bakery goods may be consumed elsewhere). Individuals may sell non-potentially hazardous home-baked goods at a farmers' market, without a license. Canning and processing of low acid or acidified foods must be done in a licensed commercial establishment.

Summary of data and analytical methodologies

This emergency rule is not based on any specialized data or analytical methodologies. Portions of this rule (such as pH requirements for home-canned food sold to the public) are based on well-established food science and public health principles.

Small Business Impact

This emergency rule implements 2009 Wis. Act 101, which removes license requirements for certain home-canners who wish to sell their products to the public at community or social events, farmers' markets and farm roadside stands. The food safety standards in this rule will help protect the public from serious food safety hazards (including botulism) that may be associated with improperly home-canned products. The prevention of food safety problems promotes public confidence, and benefits the entire food industry including home-canners.

This emergency rule may encourage some home-canning hobbyists to sell their home-canned products at community or social events, at farmers' markets, or at their own farm roadside stands. That may have an adverse competitive impact on licensed canners who currently supply those sales outlets, although the adverse effect is likely to be minimal. Larger food canning businesses that supply canned food for the mass consumer market will not be significantly affected by this emergency rule.

This rule also exempts certain small maple sap processors from licensing under s, 97.29. The exemption will relieve those processors from unnecessary licensing costs and compliance burdens, while ensuring adequate food safety protection.

Small business regulatory coordinator

To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address below, or by emailing to [e-mail] or by telephone at [phone].

Environmental Impact

This rule will not have any significant environmental impact.

Fiscal Estimate

This rule will not have a significant fiscal impact on the state of Wisconsin or on local governments.

Agency Contact Person

Questions and comments related to this rule may be directed to:

Debbie Mazanec

Dept. of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone]

E-Mail: [e-mail]

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 10-045 CR 10-045

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed rule to revise Chapter ATCP 127, Wis. Adm. Code, relating to adding cell numbers to Wisconsin's Telemarketing “No Call" List.

Hearing Information

Tuesday, June 8, 2010

2:00 p.m. to 4:00 p.m.

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin, 53718-6777

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by June 11, 2010, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, [e-mail], telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submittal of Written Comments

DATCP invites the public to attend the hearing and comment on the rule. Following the hearing, the hearing record will remain open until Friday, June 25, 2010 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, by email to [e-mail] or online https://health.wisconsin.gov/admrules/public/Home.

Copies of Proposed Rule

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or emailing [e-mail]. Copies will also be available at the hearings. To view the proposed rule online, go to: https://health.wisconsin.gov/admrules/public/Home.

Analysis Prepared by Department of Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers the Wisconsin's telemarketing “No Call" law, s. 100.52, Stats. The “No Call" law authorizes DATCP to create a list of telephone numbers of Wisconsin residents who do not want to receive telemarketing calls.

The law prohibits telemarketers from calling the listed numbers. Telemarketers must register with DATCP, and receive copies of the periodically-updated “No Call" list. DATCP has adopted rules to interpret and administer the “No Call" law, and prohibit unfair telemarketing practices. The rules are contained in ch. ATCP 127, Wis. Adm. Code.

When first enacted, the “No Call" law only authorized DATCP to include residential “land line" numbers on the “No Call" list. 2007 Act 226 changed the law to allow the inclusion of commercial mobile service numbers (cell phone numbers) on the “No Call" list. DATCP has already implemented that law change. This rule merely updates current rules to reflect current law and practice.

Statutes interpreted

Sections 100.20 (2) and 100.52, Wis. Stats.

Statutory authority

Sections 93.07 (1), 100.20 (2) and 100.52, Wis. Stats.

Explanation of agency authority

DATCP has general authority, under s. 93.07(1), Stats., to interpret laws under its jurisdiction. DATCP has authority, under s. 100.52, Stats., to create a list of the telephone numbers of residential consumers with landline service and consumers with cell phone service who do not want to receive telemarketing calls and prohibit telemarketing calls made to telephone numbers on the list. DATCP also has broad authority, under s. 100.20, Stats., to regulate methods of competition and trade practices in business.

Related rules or statutes

Chapter ATCP 127, subchapter II, Wis. Adm. Code, which is promulgated under the authority of s. 100.20(2), Wis. Stats., regulates the sales practice of persons who solicit consumers over the telephone.

Rule content

This rule does all of the following:

•   Changes the definition of “residential telephone customer" to “covered telephone customer" and defines this term to mean “an individual in this state who receives basic local exchange service or commercial mobile service from a telecommunications utility."

•   Changes the definition of “nonresidential telephone customer" to “noncovered telephone customer" and defines this term to mean “a person, other than a covered customer, who receives telecommunications service from a telecommunications utility."

•   Amends the definition of “telephone call" to include a voice communication “through the use of commercial mobile service."

•   Clarifies that the definition of “telecommunications utility" includes a person who provides commercial mobile service.