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House Bill H0258

2015 Freedom Index Score: (0)
Analyst: Parrish Miller
Date of analysis: March 16, 2015

ANALYST'S NOTE: House Bill 258 is the third bill introduced this session to define and regulate "home
kitchen operations" and "cottage foods," though this bill actually drops those exact terms. The other
two were House Bills 106 and 187. Of the three, House Bill 258 is the least restrictive, but all of them opt
for more regulation in this currently gray area rather than less.
House Bill 258 implements this regulation first by declaring that "the home kitchen of a person's primary
residence where food is prepared for sale directly to the public" does not fall under the definition and
regulations governing a "food establishment," but goes on to spell out a list of criteria which the home
kitchen operation must meet in order to avoid the general regulations which apply to food
establishments. House Bill 258 contains both positive and negative components.

Point No. 3 — Does it give government any new, additional, or expanded power to prohibit, restrict, or
regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in
the market?
ANALYSIS: House Bill 258 modifies Section 39-1602, Idaho Code, to declare that "the term 'food
establishment' does not include ... the home kitchen of a person's primary residence where food
is prepared for sale directly to the public, provided that:
(i) Such food is not potentially hazardous as defined in subsection (5)(a), (b), (c), (e) or (g)
of this section;
(ii) Such food is not a low-acid canned food or an acidified food as defined in 21 CFR 113114;
(iii) Such food is packaged with a label, which shall be provided to the purchaser and which:
1. Clearly states the name and address of the maker;
2. Includes contact information for the maker;
3. Discloses that the product was prepared in a home kitchen that is not subject to
regulation and inspection by the regulatory authority; and
4. Includes a statement that the product may contain allergens."

Declaring that a home kitchen of a person's primary residence where food is prepared for sale
directly to the public is not considered and subject to the regulation of a "food establishment" is
a positive change. Although the current lack of regulation is largely a gray area in which home
kitchens do successfully operate, a clear declaration that they are not a food establishment is
both necessary and proper. (+1)

ANALYSIS: While it is positive that House Bill 258 exempts home kitchens from regulation as
food establishments, there are numerous problems with the list of limitations and regulations
which are newly placed on these home kitchens.
The first of these is that under subsection (i) it requires that "such food is not potentially
hazardous as defined in subsection (5)(a), (b), (c), (e) or (g) of this section"; but those
subsections actually contain a list of foods which are not included in the list of potentially
hazardous foods. For example, (5)(a) is "air-dried hard-boiled eggs with shells." This is not a
"potentially hazardous food," according to Idaho code, but would apparently be considered as
such according to subsection (i) of the new language added to the code under House Bill 258.
This is either an error in drafting or a problematic inconsistency in the application of the law.
In subsection (ii) of the above changes, we find the requirement that "such food is not a lowacid canned food or an acidified food as defined in 21 CFR 113-114." This language serves to
incorporate federal code into Idaho law without necessary limitations such as stating that the
code is incorporated only as it exists today. By doing this, the legislature is delegating a portion
of its law-making authority to the federal government and is giving the federal government the
ability to effectively (and unilaterally) change Idaho law by modifying the incorporated code.
In subsection (iii) of the above changes, we find mandatory labeling requirements that will serve
not only to compromise the privacy of the maker (by requiring that their address be printed on
the label) but which may well serve to dissuade potential customers. (-1)