AZ lawmakers react to Gov. Hobbs' veto of 'cottage food' bill; here's what to know about HB2509

PHOENIX - Some state lawmakers in Arizona are expressing their disapproval over a decision by Governor Katie Hobbs to veto a bill that was passed with bipartisan support.

The bill, House Bill 2509, even came close to becoming the first bill in years to become law by way of a veto override.

Here's what to know about the bill.

What is HB2509?

House Bill 2509 amends current Arizona by removing certain restrictions related to what is known as cottage food products.

According to the Arizona Department of Health Service's website, the state legislature amended state law in 2011 to allow residents to produce "non-potentially hazardous baked and confectionery products in their homes and offer them for commercial sale within the state."

HB2509, as vetoed, allows various cottage food product "that is prepared in a kitchen of a private home for commercial purposes" to be exempted from some health and safety rules.

The current law, which AZDHS officials say was amended in 2018, provides an exemption for cottage food products that meet the following requirements from various health and safety rules:

• Must be packaged at home with an attached label that clearly states the name and registration number of the food preparer.
• Lists all the ingredients in the product and the product's production date and includes the following statement: "This product was produced in a home kitchen that may process common food allergens and is not subject to public health inspection."
• Full disclosure if the product was made at a facility for individuals with developmental disabilities.
• Completion of food handler training course from a state-accredited program, as well as maintenance of active certification, for the person preparing the food or supervising the food preparation
• When operating as a temporary food establishment, the food preparer must display the preparer's certificate of registration

Rules similar to those listed above are included in HB2509.

What is a cottage food product?

Under current law, cottage food product is described as "food that is not potentially hazardous or a time or temperature control for safety food," and is "prepared in a home kitchen by an individual who is registered" with the health department.

Current law also disqualifies the following food from being classified as cottage food products:

• Foods that require refrigeration
• Perishable baked goods
• Salsas
• Sauces
• Fermented and pickled foods
• Meat
• Fish and shellfish products
• Beverages
• Acidified food products
• Nut betters
• Other reduced-oxygen packaged products

HB2509, as vetoed, provides a more expansive definition of what would be considered to be a cottage food product.

Why was HB2509 vetoed?

In a veto letter sent by Gov. Hobbs to House Speaker Ben Toma (R), Gov. Hobbs wrote that the bill would "significantly increase the risk of food-borne illness by expanding the ability of cottage food vendors to sell high-risk foods."

"It fails to establish sufficient minimum standards for inspection or certification of home-based food businesses, and could limit the ability of [the Arizona Department of Health Services] to investigate food-borne illness outbreaks. Nor does it provide a strong enough mechanism to ensure home kitchens are free of hazardous chemicals, rodent or insect infestation, or that equipment and storage of temperature-sensitive foods are adequate, function, or even existent," read a portion of the veto letter. 

What are people saying about the veto of HB2509?

Michelle Ware, who owns Devil's Food Cakery in Prescott Valley, was disappointed when she learned about the veto.

"I really felt that we had such a huge backing with the House and the Senate that I thought we are going to go right on through. This is going to happen, for it to just - Governor Hobbs just signs it, and it's done right there. [It] is a little unfair when there's so many people that want this law changed," said Ware. "The biggest thing here is just because you are paying commercial rent in a commercial building, Foodborne illness doesn't go away. The risk is still there."

Dan Bogert, Chief Operating Officer of the Arizona Restaurant Association, also spoke out about the bill being vetoed.

"3,000 people a year die of foodborne illness, and we know that most foodborne illnesses does originate in the home. If we are going to start selling that out to the public, we want to have some sort of safeguard in place," said Bogert. "As a very regulated industry, we are not opposed to taking a look at unnecessary regulations and taking some of those away, but we are talking about bare-minimum guardrails here to not only protect this from being abused by folks it was not meant to help, like large corporations that can run huge ghost kitchens under this, but also to protect public health and safety."

You mentioned earlier that the veto on this bill was almost overriden. How does that work?

Under Arizona's constitution, a two-thirds vote of the members elected to each of the state's legislative chambers is needed to override a veto.

There are 60 members in the State House, and 30 members in the State Senate. This means 40 members of the State House and 20 members of the State Senate need to vote to override a veto.

With neither Republicans nor Democrats having enough votes to override a veto on their own, a number of lawmakers from the other party will be needed to override any vetoes.

On April 25, lawmakers attempted to override the veto on this bill, but the effort ultimately failed.

In the days prior to the vote, officials with the Arizona Senate Democratic Caucus announced that the State Senate's Democratic caucus will not provide the votes needed to override the veto.

The statement reads:

"Senate Democrats will not be providing the required votes needed to override Governor Hobbs' veto of HB2509. The bill, which we recognize has some benefits, also has some concerns brought forward by health advocates after the final vote. Our promise to Arizona is that we work to enact the best policy to protect consumers and sellers.

As a Caucus, we stand ready to work with stakeholders to craft a bill, which could still be considered this session if Republican Leadership demonstrated that it is serious about addressing this issue. We were elected to solve the problems that are facing Arizonans daily, not to engage in political power struggles. It is our duty to serve the people and ensure that their voices are heard, and we are committed to fulfilling this responsibility with the utmost sincerity and diligence."

Similarly, officials with the State House's Democratic Caucus announced that they will not help override the veto. Their statement reads:

"House Democrats will not override the veto of House Bill 2509. We will work with our legislative colleagues on improved policy that will support Arizona’s small business owners and cottage food entrepreneurs—and we’d like to get this done this session. Last year, three Republican bills with broad bipartisan support were vetoed by the former governor — including one that was unanimously supported by the House and Senate. Not once did House Republicans seek to vilify Doug Ducey as they have Governor Hobbs since she took office in January.  

If the GOP is serious about the work ahead, we invite them to join us to develop common-sense policy solutions that will show Arizonans we can rise above partisan distractions."

Overall, how many bills have Gov. Hobbs vetoed in 2023?

Since February, Gov. Hobbs has vetoed over 60 bills that were passed by legislators, including HB2509.

Read More: More bills vetoed by Arizona Gov. Katie Hobbs: here's a list of the bills affected

The vetoed bills cover a variety of topics, some of which are related to elections. 13 of them - SB1523 to SB1535 - are related to the state budget.

The Associated Press has noted that Gov. Hobbs has broken a veto record set by former governor Janet Napolitano.

Napolitano, who, like Hobbs, served as a Democratic governor, vetoed 58 bills during the 2005 legislative session.

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