Unless you’ve been on vacation, you’ve heard the drama surrounding House Bill 2509 – affectionately known as the “tamale bill”. It would have expanded the kinds of homemade foods Arizonans can sell and provided a way for families to help ends meet while building safeguards against foodborne illness.

HB2509 breezed through the legislature with bipartisan support, passing with a 45-11 majority in the House & 26-4 in the Senate. The bill was vetoed by the Governor last week.

This isn’t the first time there’s been drama about home-prepared food offered for sale in Arizona. The public policy question regarding who should be able to sell what kind of food to who goes back a couple decades.

Let’s walk through the policy history of cottage industry food products and discover why HB2509 would have been a good thing for public health.

Note: This blog post represents the opinion of Will Humble. The AzPHA Board of Directors voted to take no position on HB2509 on April 21, 2023.

If you’ve been to a farmers’ market in Arizona you’ve undoubtedly seen cottage food industry products being sold by happy vendors to smiling customers. You’ve seen all kinds of breads, sweets, fruits, jams and jellies and a lot more. It wasn’t always that way.

Prior to 2011, selling food not made in a licensed commercial kitchen was illegal and subject to citation by environmental health inspectors.

Everything changed in 2011 with the passage of a law that let people make baked and confectionery foods at home and sell them, as long as the food didn’t facilitate the growth of bacteria.

Some in the environmental health community (including the director of Maricopa County Environmental Services at the time) vigorously opposed the passage of Arizona’s cottage industry food law. Fortunately, the 2011-era Arizona Department of Health Services supported the bill. Their leadership recognized the beneficial public health impact the law would have by helping people make supplemental income. It passed with bipartisan support and was signed by Governor Brewer.

See: A.R.S. 36-136 (H)(4)(g) & A.R.S. 36-136 (H)(13) and Arizona Administrative Code R-9-8-118

Some in the environmental health world thought the sky would fall when the 2011 law passed. It did not. The program has been wildly successful and a big public health benefit. It helps families earn extra income and improves the social determinants of health.

Under the current law, only foods that don’t require time and temperature controls qualify for sale. They need to have a label stating the food preparer’s name and registration number, a listing of the ingredients, and the production date. Chefs need to complete a food handler training course and register with ADHS. Food preparers need to display their cottage industry food registration certificate at their point of sale.

How HB2509 Worked & Why I Think it Was Good

In a nutshell, HB2509 would have expanded the current cottage industry food law to include some foods that require time or temperature control for safety. The big public health bonus was that families would have been able to legally earn additional income to help ends meet by preparing a wider variety of foods.

While it’s true the bill would increase the number of folks selling potentially hazardous foods made in unlicensed kitchens, it would also build a number of safeguards into the system that don’t currently exist.

Drinks, fish & shellfish products wouldn’t qualify. Foods with meat or poultry could qualify if allowed under federal law.  For example, for a recipe to include chicken, it would need to have been raised in accordance with the 1,000-bird federal exemption & inspected in accordance with federal standards. Meat can be in the recipe if it’s from an inspected source in accordance with federal regulations.

There are other safeguards built into House Bill 2509.  Foods that have dairy, meat, or poultry must be sold directly by the food preparer in person or remotely (no middleman) and delivered to the consumer in person. Every food that needs time and temperature controls has to be maintained at the right temperature during transport, can’t be transported for more than 2 hours, and can’t be transported more than once.

Everything would need to be labeled with who made the food and where they made it so there’s a way to conduct foodborne illness investigations.

ADHS would be responsible for writing the regulations including procedures for suspending or revoking a producer’s registration when people don’t comply with all the requirements.

The reality is that all kinds of home-cooked foods that require time and temperature controls like burritos, tamales etc. are already being sold in parking lots all over Arizona. The vendors operate in the shadows, aren’t registered, may or may not have completed a food safety course, and generally don’t label their products… meaning tracing is difficult if there’s a foodborne illness outbreak.

House Bill 2509 would fix that by requiring registration, production and time & temperature controls, education courses, registration, and appropriate labeling.

The big public health dividend would be an improvement in the social determinants of health by expanding opportunities for folks to supplement their income, improving their ability to make ends meet, and generally make for happier families. The public would benefit by having more access to more diverse, creative, and tasty cottage industry foods.

The full disclosure provisions of the law mean customers would be buying the food with their eyes wide open, knowing full-well that the food wasn’t prepared in a commercial kitchen. Why not give them that choice?

The Speaker of the House & president of the Senate intend to bring House Bill 2509 to the floor to override the Governor’s veto Tuesday. It’s been more than 40 years since the state legislature has overridden a veto. Will it happen on Tuesday? We shall see.

Note: This blog post represents the opinion of Will Humble. The AzPHA Board of Directors voted to take no position on HB2509 on April 21, 2023.

See: Legislature setting up 1st veto override to support ‘cottage foods’