Chapter 97

97.29(1)(h)1. 1. A retail food establishment if the food processing activities at that establishment are authorized by a license issued under s. 97.30.

97.29(1)(h)2. 2. A restaurant or other establishment where meals are prepared or processed for retail sale directly to consumers or through vending machines if the food processing activities at that establishment are authorized by a license issued under s. 97.605.

97.29(1)(h)3. 3. An establishment covered by a license or permit under ch. 125 to sell alcohol beverages if the food processing activities related to alcohol beverages at that establishment are limited to preparing individual servings of alcohol beverages that are sold on the premises in accordance with the terms of the establishment’s license or permit under ch. 125.

97.29(1)(h)4. 4. A dairy plant if the food processing activities at that plant are authorized by a license issued under s. 97.20.

97.29(1)(h)5. 5. A meat or poultry establishment if the food processing activities at that establishment are authorized by a license issued under s. 97.42 or are authorized under 21 USC 451 to 472 or 21 USC 601 to 695.

97.29(1)(h)6. 6. An egg products plant if the food processing activities at that establishment are inspected by the federal department of agriculture under 21 USC 1031 to 1056.

97.29(1)(h)7. 7. A dairy farm and milking operation licensed under s. 97.22 that produces milk for shipment to a dairy plant licensed under s. 97.20 or under the equivalent laws of another state.

97.29(1)(h)8. 8. A place used by a beekeeper solely for extracting honey from the comb or producing and selling raw honey or raw bee products.

97.29(1)(h)9. 9. A place used solely for washing or packaging fresh or otherwise unprocessed fruits or vegetables.

97.29(1)(h)10. 10. A place used by a nonprofit organization solely for receiving and salvaging distressed food pursuant to the organization’s purposes if the organization is described in section 501 (c) (3) of the Internal Revenue Code and is exempt from federal income tax under section 501 (a) of the Internal Revenue Code.

97.29(1)(h)11. 11. A place on a farm used by an egg producer solely for handling, cleaning, or packaging whole eggs, including nest-run eggs, that are produced as allowed under s. 97.28 (2).

97.29(1)(h)12. 12. A place used solely for producing and packaging maple syrup or concentrated maple sap for sale directly to consumers or to a food processing plant licensed under this section if those sales do not exceed $5,000 in any 12-month period.

97.29(1)(h)12m. 12m. A place used to process food for sale at a stand operated by a minor, as defined in s. 66.0416 (1) (b).

97.29(1)(h)13. 13. Any other place exempted by the department by rule.

97.29(1)(hm) (hm) “Potentially hazardous food” has the meaning given in s. 97.27 (1) (dm).

97.29(1)(i) (i) “Soda water beverage” means all beverages commonly known as soft drinks or soda water, whether carbonated, uncarbonated, sweetened or flavored.

97.29(2) (2) License.

97.29(2)(a) (a) Requirement. Except as provided under par. (b) and s. 97.28, no person may operate a food processing plant without a valid license issued by the department for that food processing plant. A license expires on March 31 annually, except that a license issued for a new food processing plant on or after January 1 but before April 1 expires on March 31 of the following year. Each food processing plant shall have a separate license. A license is not transferable between persons or locations. Application for a license shall be made on a form provided by the department and be accompanied by the applicable fees required under sub. (3). An applicant shall identify the categories of food processing activities which the applicant proposes to conduct at the food processing plant. An application shall include additional information which may reasonably be required by the department for licensing purposes.

97.29(2)(b) (b) Exemptions.

97.29(2)(b)1. 1. If a dairy plant licensed under s. 97.20 or a meat establishment licensed under s. 97.42 is incidentally engaged in the operation of a food processing plant at the same location, the department may exempt by rule the dairy plant or meat establishment from licensing under this section.

97.29(2)(b)2. 2. A person is not required to obtain a license under this section to sell at retail food products that the person prepares and cans at home in this state if all of the following apply:

97.29(2)(b)2.a. a. The food products are pickles or other processed vegetables or fruits with an equilibrium pH value of 4.6 or lower.

97.29(2)(b)2.b. b. The person sells the food products at a community or social event or a farmers’ market in this state.

97.29(2)(b)2.c. c. The person receives less than $5,000 per year from the sale of the food products.

97.29(2)(b)2.d. d. The person displays a sign at the place of sale stating: “These canned goods are homemade and not subject to state inspection.”

97.29(2)(b)2.e. e. Each container of food product that is sold is labeled with the name and address of the person who prepared and canned the food product, the date on which the food product was canned, the statement “This product was made in a private home not subject to state licensing or inspection.”, and a list of ingredients in descending order of prominence. If any ingredient originates from milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts, or soybeans, the list of ingredients shall include the common name of the ingredient.

97.29(2)(c) (c) Added operations. No food processing plant may add a new category of food processing operations during the time period for which a food processing plant license was issued unless the operator of the food processing plant first notifies the department and obtains written authorization for the new category of operations. “New category of food processing operations” may include any of the following operations which were not identified on the most recent license application for the food processing plant:

97.29(2)(c)1. 1. Bakery operations.

97.29(2)(c)2. 2. Confectionary operations.

97.29(2)(c)3. 3. Bottling establishment operations.

97.29(2)(c)4. 4. Canning operations.

97.29(2)(c)5. 5. Freezing, smoking or other food preservation operations which constitute a significant departure from the operations described in the most recent license application.

97.29(2)(c)6. 6. Any other category of food processing operations which constitutes a significant departure from the operations described in the most recent license application.

97.29(3) (3) Fees.

97.29(3)(a) (a) Annual license fee; all food processing plants. An applicant for a food processing plant license shall pay the license fee specified under par. (am), based on the dollar volume of production by the food processing plant during the previous license year. The annual dollar volume of production shall be determined by gross sales of the product processed during the license year, plus the inventory value of any portion of the product not sold. If the food processing plant was not licensed during the previous license year, the license applicant shall pay an estimated license fee based on projected annual production in the license year for which application is made. At the end of the license year for which an estimated fee has been paid, the licensee shall report to the department the actual production during the license year, and the license fee for that year shall be recomputed based on the actual production. If the license fee based on actual production differs from the estimated license fee, the licensee shall pay the balance due or receive a credit from the department on the next year’s license fee.

97.29(3)(am) (am) Fee amounts. Unless otherwise required by department rule, the annual fees required under par. (a) are:

97.29(3)(am)1. 1. For a food processing plant that has an annual production of $25,000 or more but less than $250,000 and that is engaged in processing potentially hazardous food or in canning, an annual license fee of $120.

97.29(3)(am)2. 2. For a food processing plant that has an annual production of $250,000 or more and that is engaged in processing potentially hazardous food or in canning, an annual license fee of $270.

97.29(3)(am)3. 3. For a food processing plant that has an annual production of $25,000 or more but less than $250,000 and that is not engaged in processing potentially hazardous food or in canning, an annual license fee of $50.

97.29(3)(am)4. 4. For a food processing plant that has an annual production of $250,000 or more and that is not engaged in processing potentially hazardous food or in canning, an annual license fee of $110.

97.29(3)(am)5. 5. For a food processing plant that has an annual production of less than $25,000, an annual license fee of $40.

97.29(3)(b) (b) Canning operations; license fee surcharge. If a food processing plant is engaged in canning operations, a license applicant shall pay a license fee surcharge of $195, beginning with the license year which ends on March 31, 1989, which shall be added to the license fee under par. (a).

97.29(3)(c) (c) Reinspection fee. If the department reinspects a food processing plant because the department finds a violation of this chapter or rules promulgated under this chapter, the department shall charge the food processing plant operator the reinspection fee specified under par. (cm). The reinspection fee shall be based on the dollar volume of production by the food processing plant during the previous license year, and may include a reinspection fee surcharge for a food processing plant engaged in canning operations. The reinspection fee is payable when the reinspection is completed, and is due upon written demand from the department. The department may issue a demand for payment when it issues a license renewal application form to the food processing plant operator.

97.29(3)(cm) (cm) Fee amounts. Unless otherwise required by department rule, the reinspection fee required under par. (c) is:

97.29(3)(cm)1. 1. For a food processing plant that has an annual production of $25,000 or more but less than $250,000 and that is engaged in processing potentially hazardous food or in canning, the reinspection fee is $80.

97.29(3)(cm)2. 2. For a food processing plant that has an annual production of $250,000 or more and that is engaged in processing potentially hazardous food or in canning, the reinspection fee is $180.

97.29(3)(cm)3. 3. For a food processing plant that has an annual production of $25,000 or more but less than $250,000 and that is not engaged in processing potentially hazardous food or in canning, the reinspection fee is $50.

97.29(3)(cm)4. 4. For a food processing plant that has an annual production of $250,000 or more and that is not engaged in processing potentially hazardous food or in canning, the reinspection fee is $110.

97.29(3)(cm)5. 5. For a food processing plant that has an annual production of less than $25,000, the reinspection fee is $40.

97.29(3)(d) (d) Surcharge for operating without a license. An applicant for a food processing plant license shall pay a license fee surcharge if the department determines that, within one year prior to submitting a license application, the applicant operated the food processing plant without a license in violation of this subsection. The amount of the surcharge is $100. Payment of this license fee surcharge does not relieve the applicant of any other civil or criminal liability which results from the unlicensed operation of the food processing plant, but does not constitute evidence of a violation of any law.

97.29(3)(e) (e) Licensing contingent on payment of fees. The department may not issue or renew a food processing plant license unless the license applicant pays all fees which are due and payable under this subsection, as set forth in a statement from the department. The department shall refund a fee paid under protest if the department determines that the fee was not due and payable as a condition of licensing under this subsection.

97.29(4) (4) Food processing plants buying vegetables from producers. The department may not issue or renew a license to operate a food processing plant to any applicant who is a vegetable contractor, as defined in s. 126.55 (14), unless the applicant has filed all financial information required under s. 126.58 and any security that is required under s. 126.61. If an applicant has not filed all financial information required under s. 126.58 and any security that is required under s. 126.61, the department may issue a conditional license under s. 93.06 (8) that prohibits the licensed operator from procuring vegetables from a producer or a producer’s agent, but allows the operator to procure vegetables from other sources.

97.29(5) (5) Rule making. The department may promulgate rules to establish the fees required under sub. (3) (a) or (c) or to govern the operation of food processing plants. Rules may include standards for the construction and maintenance of facilities; the design, installation, cleaning and maintenance of equipment and utensils; personnel sanitation; food handling and storage; sanitary production and processing; and food sources and food labeling.

97.29(6) (6) Information about home canning.

97.29(6)(a) (a) The department shall encourage persons to whom the exemption in sub. (2) (b) 2. applies to attend and complete training, that is approved by the department, concerning preparing and canning foods and to have their recipes and processes reviewed by a person who is knowledgeable about the food canning industry and who is recognized by the department as an authority on preparing and canning food.

97.29(6)(b) (b) The department, in cooperation with the University of Wisconsin-Extension, shall attempt to maximize the availability of information and technical services and support for persons who wish to home prepare and home can low-acid and acidified food products.

97.29 History History: 1987 a. 399; 1989 a. 31; 1989 a. 56 s. 259; 1991 a. 39; 1993 a. 27, 264; 1995 a. 460; 1997 a. 27; 2001 a. 16; 2009 a. 101; 2013 a. 245, 302; 2015 a. 55, 195, 242; 2017 a. 365; 2019 a. 60.

97.29 Cross-reference Cross-reference: See also ch. ATCP 70, Wis. adm. code.

97.30 97.30 Retail food establishments.

97.30(1) (1) Definitions. In this section:

97.30(1)(a) (a) “Agent city or county” means a city or county granted agent status by the department under s. 97.41.

97.30(1)(b) (b) “Food processing” has the meaning given under s. 97.29 (1) (g).

97.30(1)(bm) (bm) Except as provided by the department by rule, “potentially hazardous food” means a food that requires temperature control because it is in a form capable of supporting any of the following:

97.30(1)(bm)1. 1. Rapid and progressive growth of infectious or toxigenic microorganisms.

97.30(1)(bm)2. 2. Growth and toxin production of Clostridium botulinum.

97.30(1)(bm)3. 3. In raw shell eggs, growth of Salmonella enteritidis.

97.30(1)(c) (c) “Retail food establishment” means a permanent or mobile food processing facility where food processing is conducted primarily for direct retail sale to consumers at the facility, a mobile facility from which potentially hazardous food is sold to consumers at retail or a permanent facility from which food is sold to consumers at retail, whether or not that facility sells potentially hazardous food or is engaged in food processing. “Retail food establishment” includes a restaurant or temporary restaurant. “Retail food establishment” does not include an establishment holding a license under s. 97.605, to the extent that the activities of the establishment are covered by that license, or a stand operated by a minor, as defined in s. 66.0416 (1) (b).

97.30(2) (2) License.

97.30(2)(a) (a) Requirement. Except as provided under par. (b), no person may operate a retail food establishment without a valid license issued by the department or an agent city or county. Except as provided in par. (am), licenses expire on June 30 annually, except that a license issued for a new retail food establishment on or after March 30 but before July 1 expires on June 30 of the following year. Each retail food establishment shall have a separate license. A license is not transferable between persons or establishments. Application for a license shall be made on a form provided by the department, or by the agent city or county, and be accompanied by the applicable fees required under sub. (3) or (3s) or s. 97.41. An application shall indicate whether food processing is conducted at the establishment and shall specify the nature of any food processing activities. An application shall include other information reasonably required by the department, or by the agent city or county, for licensing purposes.

97.30(2)(am) (am) License issuance for a retail food establishment located in a city of the 1st class.

97.30(2)(am)1. 1. The local health department of a city of the 1st class that has entered into an agreement with the department under s. 97.41 (1m) may issue to a retail food establishment the license required under par. (a) at any time during the year. A license issued under this subdivision shall expire one year from the date of its issuance.

97.30(2)(am)2. 2. A retail food establishment may request an extension to the term of a license issued under par. (a) by the local health department of a city of the 1st class that has entered into an agreement with the department under s. 97.41 (1m) for the purpose of aligning the annual term of any other license or permit issued to that retail food establishment with the annual term of a license to be issued to that retail food establishment under subd. 1. The local health department may require a retail food establishment that receives an extension under this subdivision to pay a prorated fee in an amount determined by dividing the license fee imposed under s. 97.41 (4) by 12 and multiplying the quotient by the number of months by which the license issued under par. (a) is extended under this subdivision.

97.30(2)(b) (b) Exemptions.

97.30(2)(b)1. 1. A license is not required under this section for any of the following:

97.30(2)(b)1.a. a. A retail food establishment that sells only packaged foods or fresh fruits and vegetables, if the establishment does not sell potentially hazardous food and does not engage in food processing.

97.30(2)(b)1.b. b. A retail food establishment which is primarily engaged in selling fresh fruits and vegetables, honey, cider or maple syrup produced by the operator of the retail food establishment, if that retail food establishment is not engaged in other food processing activities.

97.30(2)(b)1.c. c. A retail food establishment which is exempted from licensing by the department by rule. If an establishment for which a license has been issued under s. 97.605 is incidentally engaged in operating a retail food establishment at the same location, the department may exempt by rule the establishment from licensing under this section.

97.30(2)(b)1.d. d. A retail food establishment where popcorn is popped, if the retail food establishment is not required to obtain a license under this section to sell or process any other food.

97.30(2)(b)2. 2. If a dairy plant licensed under s. 97.20, a food processing plant licensed under s. 97.29 or a meat establishment licensed under s. 97.42 is incidentally engaged in the operation of any retail food establishment at the same location, the department may exempt by rule that establishment from licensing under this section.

97.30(2)(c) (c) Pre-licensing inspection. Except as provided under par. (d), the department or an agent city or county may not issue a license for a new retail food establishment until it inspects the new retail food establishment for compliance with this section and rules promulgated under this section. A licensed retail food establishment is not considered a new retail food establishment under this paragraph solely because of a change in ownership, or solely because of alterations in the retail food establishment.

97.30(2)(d) (d) Initial inspection of micro market. The department or an agent city or county may issue a license for a new retail food establishment that is a micro market before it inspects the new retail food establishment that is a micro market for compliance with this section and rules promulgated under this section. Before one year after the date that the department or the agent city or county issues a license for a new retail food establishment that is a micro market, it shall inspect the new retail food establishment for compliance with this section and rules promulgated under this section.

97.30(3) (3) Fees; retail food establishments licensed by department.

97.30(3)(a) (a) License fee. Except as provided under sub. (3s), an applicant for a retail food establishment license shall pay the license fee specified under sub. (3m), based on gross receipts from food sales at the retail food establishment during the previous license year. If a retail food establishment was not licensed during the previous license year, a license applicant shall pay an estimated license fee based on projected gross receipts from food sales in the license year for which application is made. At the end of the license year for which an estimated fee has been paid, the licensee shall submit a report to the department stating the actual gross receipts from food sales during the license year. The license fee for that year shall be recomputed based on actual gross receipts. If the license fee based on actual gross receipts differs from the estimated license fee which was paid, the licensee shall pay the balance due or receive a credit from the department on the next year’s license fee.

97.30(3)(am) (am) Weights and measures inspection fee. An applicant for a retail food establishment license shall pay the weights and measures inspection fee specified under sub. (3m), based on gross receipts from food sales at the retail food establishment during the previous license year. If a retail food establishment was not licensed during the previous license year, a license applicant shall pay an estimated weights and measures inspection fee based on projected gross receipts from food sales in the license year for which application is made. At the end of the license year for which an estimated fee has been paid, the licensee shall submit a report to the department stating the actual gross receipts from food sales during the license year. The weights and measures inspection fee for that year shall be recomputed based on actual gross receipts. If the weights and measures inspection fee based on actual gross receipts differs from the estimated weights and measures inspection fee which was paid, the licensee shall pay the balance due or receive a credit from the department on the next year’s weights and measures inspection fee. This paragraph does not apply to a retail food establishment that is a micro market.

97.30(3)(b) (b) Reinspection fee. If the department reinspects a retail food establishment because the department finds a violation of this chapter or rules promulgated under this chapter, the department shall charge the retail food establishment operator the reinspection fee specified under sub. (3m). A reinspection fee is payable when the reinspection is completed, and is due upon written demand from the department. The department may issue a demand for payment when it issues a license renewal application form to the retail food establishment operator. This paragraph does not apply to a retail food establishment that is a micro market.

97.30(3)(c) (c) Surcharge for operating without a license. An applicant for a retail food establishment license shall pay a license fee surcharge of $100 or twice the amount of the annual license fee specified under sub. (3m) whichever is less, or if the applicant operates a micro market a license fee surcharge of $100 or twice the amount of the annual license fee specified under sub. (3s) whichever is less, if the department determines that, within one year prior to submitting a license application, the applicant operated the retail food establishment without a license in violation of this subsection. Payment of this license fee surcharge does not relieve the applicant of any other civil or criminal liability which results from the unlicensed operation of the retail food establishment, but does not constitute evidence of a violation of any law.

97.30(3)(d) (d) Licensing contingent on payment of fees. The department may not issue or renew a retail food establishment license unless the license applicant pays all fees which are due and payable under this subsection and sub. (3m) or (3s), as set forth in a statement from the department. The department shall refund a fee paid under protest if the department determines that the fee was not due and payable as a condition of licensing under this subsection.

97.30(3m) (3m) Fee amounts. The department shall specify by rule the amount of the fees under sub. (3) for a restaurant. Unless otherwise required by department rule, the fees required under sub. (3) for a retail food establishment other than a restaurant are:

97.30(3m)(a) (a) For a retail food establishment, other than a restaurant, that has annual food sales of $25,000 or more but less than $1,000,000 and that processes potentially hazardous food, the following amounts: