Chapter 97

97.27 History History: 1987 a. 399; 1989 a. 174; 1991 a. 39, 210; 1999 a. 83; 2013 a. 302; 2015 a. 55, 242.

97.27 Cross-reference Cross-reference: See also ch. ATCP 71, Wis. adm. code.

97.28 97.28 Direct sale of eggs.

97.28(1) (1) In this section:

97.28(1)(a) (a) “Candling” means carefully examining, in a dark place, the interior and exterior of a whole egg that is placed in front of a strong light source.

97.28(1)(b) (b) “Egg” means the shell egg of the domestic chicken, Gallus gallus domesticus, and of turkey, duck, goose, guinea, or other avian species whose eggs are used for human consumption.

97.28(1)(c) (c) “Egg producer” means a person who sells eggs laid only by a bird or a flock of birds owned by that person.

97.28(1)(d) (d) “Egg sales route” means one or more residences inhabited by consumers who regularly buy eggs from an egg producer who travels to the residences.

97.28(1)(e) (e) “Farmer’s market” means a building, structure, or place where 2 or more individuals gather on a regular, recurring basis to sell, directly to the consumer, any of the following:

97.28(1)(e)1. 1. Raw agricultural commodities that are grown, harvested, or collected by the individual.

97.28(1)(e)2. 2. Food that is prepared by the individual.

97.28(1)(f) (f) “Nest-run egg” means an egg that is not washed, graded, or subject to candling before sale.

97.28(2) (2) An egg producer who satisfies all of the following need not obtain a license under s. 97.29 to sell eggs, including nest-run eggs:

97.28(2)(a) (a) The number of egg-laying birds in the egg producer’s flock does not exceed 150.

97.28(2)(b) (b) The egg producer sells the eggs directly to a consumer through one of the following venues:

97.28(2)(b)1. 1. At the premises where the eggs were laid.

97.28(2)(b)2. 2. At a farmers’ market located in this state.

97.28(2)(b)3. 3. On an egg sales route.

97.28(2)(c) (c) The egg producer packages the eggs in a carton that is labeled only with the following information:

97.28(2)(c)1. 1. The egg producer’s name and address.

97.28(2)(c)2. 2. The date on which the egg producer packed the eggs into the carton.

97.28(2)(c)3. 3. A date that falls no more than 30 days after the date on which the eggs were packed by which the eggs must be sold.

97.28(2)(c)4. 4. A statement indicating that the eggs in the package are ungraded and uninspected.

97.28(2)(d) (d) The egg producer keeps the eggs, packaged as provided under par. (c) and held, as packaged, for sale at a venue identified under par. (b), at an ambient temperature of 41 degrees Fahrenheit or below at all times.

97.28 History History: 2013 a. 245.

97.29 97.29 Food processing plants.

97.29(1) (1) Definitions. In this section:

97.29(1)(a) (a) “Alcohol beverage” has the meaning given under s. 125.02 (1).

97.29(1)(b) (b) “Bakery” means any place where bread, crackers, pasta or pies, or any other food product for which flour or meal is the principal ingredient, are baked, cooked or dried, or prepared or mixed for baking, cooking or drying, for sale as food.

97.29(1)(c) (c) “Bottling establishment” means any place where drinking water, soda water beverage or alcohol beverage is manufactured or bottled for sale. “Bottling establishment” does not include a retail establishment engaged in the preparation and sale of beverages under a license issued under s. 125.26 or 125.51 or a license issued under s. 97.30 for a restaurant or other license issued under s. 97.605.

97.29(1)(d) (d) “Canning” means the preservation and packaging in hermetically sealed containers of low-acid or acidified foods.

97.29(1)(e) (e) “Confectionary” means any place where candy, fruit, nutmeats or any other food product is manufactured, coated or filled with saccharine substances for sale as food.

97.29(1)(f) (f) “Drinking water” means water used or intended for use for human consumption. “Drinking water” includes distilled water, artesian water, spring water and mineral water, whether carbonated or uncarbonated, if consumed by humans or intended for human consumption.

97.29(1)(g) (g) “Food processing” means the manufacture or preparation of food for sale through the process of canning, extracting, fermenting, distilling, pickling, freezing, baking, drying, smoking, grinding, cutting, mixing, coating, stuffing, packing, bottling, or packaging, or through any other treatment or preservation process. “Food processing” includes the activities of a bakery, confectionary, or bottling establishment, and also includes the receipt and salvaging of distressed food for sale or use as food.

97.29(1)(h) (h) “Food processing plant” means any place used primarily for food processing, where the processed food is not intended to be sold or distributed directly to a consumer. “Food processing plant” does not include any of the following:

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.