By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — As of right now, people can legally sell — and you can legally buy — homemade tamales.

Also pupusas, empanadas and a host of what are known as “cottage foods” that had been off limits.

On Thursday, Gov. Katie Hobbs overruled her own Department of Health Services, ordering the agency to immediately begin enforcing House Bill 2402 “as written.” That is the law signed by the governor earlier this year removing most restrictions on the commercial sale of homemade products.

State health officials acknowledged the law actually took effect on Sept. 14. But they have refused to process applications, telling people that can’t happen until they enact a series of rules and regulations. That process could take a year — or more.

The governor’s action comes just hours after an inquiry by Capitol Media Services into the legality of the health department refusing to implement the law. Those followed a discussion with Paul Avelar, attorney for the Institute for Justice, who raised the issue.

Gubernatorial press aide Christian Slater said his boss acted as soon as the issue was brought to her. He also said it is in line with the governor’s thinking.

“Gov. Hobbs signed HB 2402 to cut red tape for small businesses and will continue working to ensure they have the freedom to operate without onerous regulations,” he said is a prepared statement.

In overriding the health department, Hobbs avoided what could have been lengthy and expensive litigation. Avelar told Capitol Media Services his national law firm was considering filing suit.

It also avoids what could have been a second political black eye for the governor on the issue.

The first came in 2023 when Hobbs vetoed the measure, complete with comments that such a law would open the door to items being cooked in home kitchens with “rodent or insect infestation.”

“That is offensive,” said Sen. Alma Hernandez, D-Tucson, a major proponent of the legislation. “And I would be glad to put my nana’s kitchen or my mom’s kitchen up against anyone’s kitchen.”

Sen. T.J. Shope, R-Coolidge, whose mother and grandmother are Mexican immigrants, took it a step farther.

“Not only was the veto outrageous, but to continue to push racial tropes of homes riddled with insect or rodent infestation, it will just not be tolerated in the year 2023,” he said.

It even led to threats of an override, though that did not materialize.
Hobbs did finally sign the 2024 version, which in most respects is identical to the one she found unacceptable.

Arizona first approved the sale of what are known as “cottage” foods in 2011. The law allowed people to make limited items at home — baked and confectionery foods — and sell them as long as they did not facilitate the growth of bacteria.

That produced sales at farmers’ markets, where breads, sweets, fruits, jams and jellies, along with other items have been openly sold.

The new law approved earlier this year adds to that list — but with restrictions.

First, it restricts what ingredients could be used. For example, no shellfish.
Producers need to register with the health department and take a state-approved food handling course.

Anything with meat or dairy has to be delivered in person. And no item can be transported more than twice, with a total limit of two hours.

Perhaps most significant are disclosure provisions on the label, including the producer’s name and state registration number and a statement that says “this was produced in a home kitchen that may process common food allergens and is not subject to public health inspection.”

That law — like hundreds of others — took effect Sept. 14. But anyone seeking a permit was told by the health department it was not in effect — and would not be until the agency crafted rules.

Avelar told Capitol Media services that is legally wrong.

“HB 2042 doesn’t leave any room for the agency to pick and choose which foods it will allow or not,” he said.

“It sets out a complete definition of what is allowed in cottage food and what is not, and that bill has become effective,” Avelar said.

“The statute controls and the statute says what foods are allowed as of the effective date,” he explained. “And people are allowed to use them.”

Avelar, talking about the issue before Hobbs acted, sniffed at the claim by health officials that they need to enact rules — a process that can take a year — to provide more specifics.

“This is not an area where Department of Health Services needs to do significant rule making,” Avelar said. “The only two things that it needs to do is put out guidance on acquiring ingredients and, essentially, punishment steps.”

Avelar said late Thursday that Hobbs’ action ends the issue.

“We are glad to hear that the governor intervened,” he said.

“Homemade food is safe, there is public demand for it,” Avelar said. “And, for many people, it’s a needed source of income that plays a key role in providing for themselves and their families.”

Rep. Travis Grantham, who crafted the legislation, told colleagues during debate that all this does is recognize what already was occurring.

“People already do this,” the Gilbert Republican said during debate.

“Some people, unfortunately, who do this to supplement their income are doing it illegally because state law has not properly addressed this,” he said. “This shouldn’t be a crime. Cooking dinner should not be a crime.”

Hernandez, in supporting the law, said the issue is personal for her.

“The only reason I’m here and have made it so far in life is because of the support of my parents and how hard they worked to get me where I am now,” she said.

In her case, Hernandez said, it was her mother baking cakes.

“We sold them out of our house to be able to make a living so that we all had an opportunity,” she said. “I don’t forget where I come from.”

One change that came between the 2023 and the final version was brought at the request of the Arizona Restaurant Association. Gone is a provision that would have precluded anything prepared in a home kitchen from being used in what is served in a restaurant.

Lobbyist Dan Bogert heard from one supporter of the measure who said his home kitchen produces salsa.

“It sounds like that would be a great product to be able to include in some of our dishes at our restaurants,” Bogert said. “And we’d very much like the opportunity to do that.”