When Daniel Anthony first tried selling fresh, traditionally prepared paiai two years ago, he found out that pounding the taro was the easy part.

It was much more difficult to sell it.

Anthony said that before the Department of Health shut down his small business, he was pounding and selling almost 10,000 pounds of taro a year, with another 15,000 a year used in his educational workshops. Now he can’t sell any of it.

"The (Department of Health) told me I couldn’t sell poi off the board," Anthony said. "It’s not poi, though. It’s paiai."

Paiai — young, unfermented and undiluted taro ground with a traditional lava rock and wooden board — first came under scrutiny by the Hawaii Department of Health in late 2009 when Anthony was cited for using traditional porous implements that could not be completely sanitized.

  But a pair of proposals now before the state Legislature could make Hawaii’s food code compatible with this traditional Hawaiian food preparation practice. The bills would create an exemption for cultural practitioners like Anthony to sell their paiai, provided they sell directly to consumers, attend a food safety class, maintain hand-washing facilities and label their products as traditionally made.

Critics of the proposals, including Rep. Robert Herkes (D, Volcano-Kainaliu), chairman of the House Consumer Protection Committee, argue that they are unenforceable with the state’s current resources and manpower.

"The Department of Health isn’t going to enforce that," Herkes said. "They’re having a hard enough time doing their job now."

He said he doubts, for instance, that any health inspector is going to go to remote Naalehu, see someone selling poi and demand to see a food-safety training certificate.

"There’s nobody out there," he said.

But the Department of Health says that the bills would create a cultural exemption in the health code similar to those afforded to other potentially hazardous foods.

"Technically it’s illegal to serve rare steak," said Peter Oshiro, acting program manager of the Sanitation Branch. "But if you ask for it, a restaurant can sell it to you in that manner. It’s the same thing for the pounding of this paiai."

Oshiro said the DOH wants to avoid a repeat of the shigellosis outbreak of 1970, when factory-prepared poi on Maui was implicated in the most widespread outbreak of shigellosis ever recorded in the United States, affecting more than 600 people.

But Oshiro said that like any other potentially hazardous food product, the decision about paiai should be up to the consumer.

"The public needs to know that this is not a DOH-inspected activity and that you take your own chances," Oshiro said. "But the people who are pounding the paiai are agreeing to that kind of statement."

Supporters of the proposals agree, saying the bills are about regulating paiai in a way that makes cultural sense.

"Right now the fact is there is a black market for traditionally pounded poi," said Amy Brinker, a UH-Manoa law student who coordinated with the DOH to craft amendments to the proposed bills. "What we’re looking at doing is regulating a practice that is entirely unregulated."

But to Anthony, the paiai pounder, these bills are about more than just his business or his culture.

"Paiai is one of the healthiest foods on the planet to eat in a place where we have a lot of unhealthy people," he said.

The Senate version of the bill crossed over to the House earlier this month. Herkes has yet to schedule either bill for a hearing.