The War on Tamales
Arizona was set to legalize the sale of "potentially hazardous" homemade foods—but then Gov. Katie Hobbs vetoed the bill.
For over three years, Maria—not her real name—has been working in one of Arizona's most popular illicit trades. She makes good money, she can set her schedule to maximize time with family, and her customers are hooked on her product.
But Maria isn't a liquor bootlegger or a drug dealer—she's a tamale seller, part of a beloved economy that is technically illegal in Arizona.
"I was working as a housekeeper but they paid me very little and sometimes I couldn't get to pick up my son from school," she tells Reason. "I've always liked to cook a lot and I've always been told that I cook delicious [food] so I said to myself, why not?" In January 2020, her mother lent her some cash to launch her home business. She began making and selling dozens of homemade red chile tamales each week, always freshly made, "never reheated."
The happy comments poured in: "'Your tamales are [the] bomb,' 'I had never tried tamales so delicious,' 'I had not found tamales like the ones made by my mother who has already passed away,' and so many…that fill me with satisfaction," says Maria.
"Many people who work all day and come home hungry and tired without wanting to cook," she says, "what they want is to arrive and eat homemade food and well, here we are!"
State restrictions haven't kept tamale sellers from entering the market or buyers from consuming the product. Scroll through Facebook or stroll through a strip mall parking lot in southern Arizona and you're bound to come across a tamale peddler.
Arizona nearly brought this lively tamale black market above ground last month. H.B. 2509, a bill that would've legalized the sale of "potentially hazardous" homemade goods containing perishable ingredients, passed the state House and Senate with overwhelming bipartisan support. But Democratic Gov. Katie Hobbs was having none of it.
"The bill would significantly increase the risk of food-borne illness by expanding the ability of cottage food vendors to sell high-risk foods," she wrote in her veto letter. "It fails to establish sufficient minimum standards for inspection or certification of home-based food businesses." Hobbs cited "hazardous chemicals" and "rodent or insect infestation" as potential dangers.
Arizonans have been legally allowed to sell "cottage foods"—goods prepared in a noncommercial kitchen—for over a decade. That law is limited, though. A home chef can sell cookies, fruit pies, and muffins under Arizona's current cottage food regime, but not salsas, tamales, or dried fruit. "Cakes with hard icings or frostings" are allowed, but "cakes with custard filling" are not. Any chef who wants to sell food products "considered potentially hazardous" has to navigate more onerous steps like getting a license from the county environmental health department and producing all food in a sanctioned commercial kitchen.
Authorities point to health risks to justify those regulations. Tom Herrmann, public information officer for the Arizona Department of Health Services (AZDHS), tells Reason that "about 128,000 people each year are hospitalized nationally because of a foodborne illness, and an estimated 3,000 people die." But he notes that "the cause of an outbreak is not always clear."
"Because food prepared outside of a regulated food preparation setting, such as a private residence, is typically small-scale, outbreaks due to these foods often go undetected and unreported," Herrmann says.
Drawing from a 2014 Center for Science in the Public Interest report, Time magazine noted that 44 percent of foodborne illness outbreaks could be traced to restaurants, while 24 percent happened at home. "That means that you're twice as likely to get food poisoning eating at a restaurant than you are at home," it said. The Institute for Justice, a libertarian public interest law firm that supports deregulation in the cottage food industry, has said that "critics who talk about the risk of food-borne illness give hypothetical examples of what could go wrong because real-world cases are rare or nonexistent."
"My gut says HB2509 would have been a net [public health] benefit," Will Humble, former director of the AZDHS, tweeted last month. After he helped to create Arizona's current cottage food regime back in 2008, "some in the environmental health world thought the sky would fall. It did not," wrote Humble. Instead, "it's been wildly successful and a big public health benefit by improving [social determinants of health] & I believe #HB2509 would have too."
There were nearly 15,000 registered home chefs in Arizona as of March 2023, according to the Common Sense Institute's Arizona chapter. But the veto means that many more Arizonans—Maria included—will have to keep laboring in the shadows. Paul Avelar, managing attorney at the Institute for Justice's Arizona office, anticipates that the veto "will hurt thousands of hardworking Arizonans who simply want to make an honest living or supplement their income."
That will come down disproportionately hard on women—the Institute for Justice has noted that 83 percent of cottage food producers are women—and immigrants, many of whom sell homemade food to begin making money in their new communities. If passed, H.B. 2509 would have generated an estimated $55.3 million in new annual food sales, according to the Common Sense Institute.
Maria knows many tamale vendors. Some sell red chile tamales like she does. Others sell corn variations, and others prepare recipes from their states in Mexico or native countries, including Guatemala. She also knows people who sell additional goods barred by state law, including pupusas and homemade pizzas.
Maria says that authorities in her city don't seem interested in cracking down on them. Some of her customers are even cops in uniform.
Enforcement is generally lax in Arizona. But keeping the restriction on the books—along with the harsh punishments of a $500 fine and six months in jail for violators—means that the state could invoke it to punish unlicensed home chefs. This already happens in other states: Carrollton, Texas, mailed Dennise Cruz a "warrant arrest notice" and fined her $700 for selling tamales without a permit. In New York, police officers handcuffed a woman selling churros inside a Brooklyn subway station.
Hobbs' veto amounts to the state "continuing to criminalize entrepreneurship and making it harder for people operating a home-based business to support their families and climb up the economic ladder," state Rep. Alma Hernandez (D–Tucson) wrote for the Arizona Daily Star. Hernandez was one of just five Democrats who voted to override the veto in late April—an effort that ultimately fell short. The governor hasn't yet said what would need to change in order for her to sign a cottage food bill into law.
On the campaign trail, Hobbs called Arizona's working families "the backbone" of the state's economy. Apparently, her commitment to the working class doesn't extend to home chefs like Maria.
They'll have to keep working in the dark, but there's little doubt that consumers will keep hungering for their tamales. "It would be impossible to end the sale of this kind of product," says Maria.
