The Bloomberg BNA Tax Management Weekly State Tax Report filters through current state developments and analyzes those critical to multistate tax planning.
By Jennifer Weiss-Wolf
Jennifer Weiss-Wolf is a leading writer and advocate on the issue of menstrual health, fairness and equity. She is a lawyer and currently serves as a vice president of the Brennan Center for Justice at NYU School of Law. She is also on the Board of Support The Girls and a member of the Advisory Board of ZanaAfrica Foundation. Visit her website to learn more: www.jenniferweisswolf.com.
Sales tax and periods—an unlikely combination. Yet in 2016 the two issues have not only collided, but also have catalyzed a global menstrual equity movement.
For generations, the topic of menstruation has been at the margins—shrouded in taboo and shame or, at best, ignored. All that changed last year. And that’s not just because Donald Trump catapulted the phrase ‘blood coming out of her wherever’ into the presidential race, which was widely interpreted as an accusation that Fox News commentator Megyn Kelly was menstruating while moderating. The issue had been making headlines throughout 2015—from Kiran Gandhi's bold free-bleeding run of the London marathon, to the growing demand to “Detox the Box” and disclose the ingredients in tampons. Activists from New York City to Los Angeles, and from London to Mumbai, mobilized around menstrual health—launching protests, creative donation drives (through groups such as RACKET, Support the Girls and Girls Helping Girls. Period.) and hashtag campaigns (#TheHomelessPeriod, #HappyToBleed, #FreeTheTampons and #JustATampon).
As a regular contributor to Ms. Magazine, I wrote an essay proposing that this was only just the beginning for menstrual activism and predicted 2016 would be “The Year Period Policy Prevails.” And so it has. Periods haven't just gone public—they've gone viral. And political, too.
The latest central focus for advocacy (and ire): the notorious tampon tax.
The tampon tax is regular sales tax applied to feminine hygiene products, ranging from roughly 4 percent to 10 percent. Generally, states exempt food and other necessities, such as medicine and prescription drugs, from sales tax. In 40 U.S. states, this exemption does not extend to menstrual items such as tampons and pads.
Tampon tax is a catchy phrase, with alliteration and a cadence that makes for a bold battle cry. (Axe the Tampon Tax!) But it is not a special additive levy. Nor is it a “luxury” tax—a common misconception. The term “luxury” is a byproduct of the vernacular of the European Union's Value Added Tax (VAT), a consumption tax which specifically applies to non-essential luxury items. (Recent policy changes related to the VAT and menstrual products are described below.)
Forty U.S. states currently collect sales tax on menstrual products. The Wall Street Journal’s MarketWatch published a map of those states' respective tax rates.
(Click image to enlarge.)
Five states (and, most recently, the city of Chicago) have legislated specific exemptions for menstrual products: Maryland, Massachusetts, Minnesota, New Jersey and Pennsylvania. The remaining five—Alaska, Delaware, Montana, New Hampshire and Oregon—have no sales tax at all, and therefore don't tax these items.
Each year women in the U.S. pay upwards of $70 to $100 to purchase tampons and pads—all told, more than $3,000 over our lifetimes. The sales tax adds another several hundred dollars to the grand total. The amount of annual tax revenue states collect on the sale of menstrual products is based on the number of menstruating people in the state—ranging from $1 million in Utah to $20 million in California, for example.
In a recent column on the subject, The New York Times Upshot pointed out how lack of consistent classification of “medical necessities” from state to state has resulted in a complicated maze of laws. Prescription drugs—ranging from the life-saving (insulin) to the life-enhancing (Rogaine and Viagra)—largely are tax exempt. So too are incontinence pads and dandruff shampoo. Meanwhile, other items that seem similar to tampons, and that may also be deemed basic (if not medical) necessities, are taxed—toilet paper, soap and bandages among them.
And therein lies the million dollar question: Do tampons and pads (and other menstrual products) deserve special tax treatment? I argue yes. Without them, women are prone to reproductive infection, not to mention humiliation. Bleeding down one's legs for five days per month is not a healthy or sanitary option. Toilet paper and hand towels are freely available in workplace and public restrooms (thanks to OSHA and other regulatory requirements). Whereas one can make do without a bar of soap, or improvise a bandage, there is no substitute for the products we use to absorb menstrual blood.
Inspired by citizen petitions in Canada, the United Kingdom and Australia, last year I conceptualized a single petition collectively calling out the U.S. states that do not exempt tampons and pads from sales tax. Rather than initiating several dozen campaigns—one in each state where sales tax reform would need to be introduced—my goal was to elevate the issue nationally to inspire state legislators to take action. I partnered with Cosmopolitan Magazine, which co-sponsored the inaugural U.S. petition, Stop Taxing Our Periods. Period. To date it has amassed nearly 60,000 signatures. (A few similar petitions have cropped up, also picking up as many signatures.)
On Jan. 4, 2016, California Assemblymembers Cristina Garcia (D) and Ling Ling Chang (R) introduced A.B. 1561, the first tampon tax bill of the 2016 legislative session. The following week the issue got a boost when President Obama was asked to weigh in during a live interview with YouTube star Ingrid Nilsen. (His telling, if not slightly awkward, response to why states would tax tampons: “I suspect it's because men were making the laws.”)
And there it was. The Leader of the Free World talking tampons. An explosion of media followed, overwhelmingly supportive. The New York Times issued an editorial that urged states not only to stop taxing menstrual products, but also to ensure their affordability for all. The Daily Show’s Jessica Williams denounced the tax; The Nightly Show launched a weekly segment called Tampon Tuesday. The coverage has yet to abate. If it seems as though you've seen the issue, well, everywhere … you have. While NPR called last year's period positivity an “epic” phenomenon, calculating that the number of times the word menstruation was mentioned in five national news outlets (The New York Times, CNN, Los Angeles Times, Chicago Tribune, USA Today) more than tripled from 2010 to 2015. Since January 2016 there have been many thousands of hits – in publications ranging from the Wall Street Journal and the Washington Post Wonkblog, to Teen Vogue and Mic.com, and all over social media.
There has been some, though not very much, public opposition. The Los Angeles Times issued an editorial countering the proposed bill in California. Rather than acknowledge the sheer necessity of managing menstruation, it delegates tampons to the category of things that are nice to have, but not required, such as deodorant—while meekly defending the tax-exempt status of Viagra as a reasonable way to “improve quality of life.”
Meanwhile, over the past two months, proposals to exempt menstrual products from sales tax have multiplied quickly. To date, bills have been introduced—or resurrected or debated—in the following states and cities:
(Click image to enlarge.)
Bills introduced and still pending:
In Tennessee and Utah, proposed sales tax exemptions have already been rejected. Utah's Hygiene Tax Act/House Bill 202, introduced by Rep. Susan Duckworth to exempt menstrual products and baby diapers from sales tax, was killed in committee by an all-male panel. Reasons included fears of a too-subjective tax code and concern about recouping the $1 million in lost revenue. Tellingly, the committee didn't consider making up the difference by taxing alternative items consumed equally by both men and women. In Indiana, where the tax also has been debated, one state senator argued that eliminating the tampon tax would alleviate a financial burden for only women and is therefore a sexist proposal.
The decision of the committee in Utah prompted me to examine the sales tax code of each of the 40 states that does not exempt menstrual products from sales tax. My initial goal in doing so was to highlight some of the more curious (read: unnecessary) items for which sales tax exemptions have been allowed—and to demonstrate that there is no shortage of the very kind of subjective exemptions that Utah claims it seeks to avoid. These include:1
The exercise was an Alice in Wonderland-esque trip down the rabbit hole of inane, archaic questions and considerations. For certain, state tax codes are riddled with seemingly bizarre inconsistencies and loopholes. (Among them: What is “prepared” food? Is a marshmallow an ingredient or is it candy?)
It is safe to say the above list demonstrates considerable subjectivity among allowable sales tax exemptions. And it highlights that there are myriad items far less necessary than tampons that often make the cut. But it also points to how and why states rightly use sales tax as a way to incentivize important interests—such as tourism (Mardi Gras specialty items, rodeo entry fees) and industry. Might there be a case to make that states should affirmatively leverage sales tax exemptions to advance women's health, economic equity and fairness? It is a worthwhile question that should be explored. As I stated in Cosmopolitan: relief of the tampon tax would send a clear, top-down message that society needs to reevaluate how we treat women. That is a legitimate state interest.
Another noteworthy observation: Federal law requires that all eligible purchases made using the Supplemental Nutrition Assistance Program (a.k.a. food stamps) and Women, Infants and Children (WIC) benefits—tampons and pads are currently ineligible—be exempt from sales tax. This adds fuel to another argument posited below: that is, that menstrual products be included in essential benefits programs. It would offer additional financial relief to those who need it most.
Next to weigh in will be the courts. Nearly two decades ago a group of women in Chicago won a class action lawsuit, successfully arguing that the city should follow the statewide sales tax exemption for tampons and pads as “medical appliances.” But in 2009, Illinois reclassified tampons as “grooming and hygiene products,” effectively reversing the outcome of the lawsuit. Now, as reported above, the Chicago City Council has passed its own ordinance exempting menstrual products from the city's sales tax effective Jan. 1, 2017, and the Illinois Senate will consider a new bill to do the same for the state's sales tax.
In New York State last month, five women filed a sweeping class action lawsuit, Seibert v. New York State Department of Taxation and Finance. Similar lawsuits have been filed in California and Ohio over the past week; still others are being planned.
Currently, New York is among the states that exempt “medical necessities” from sales tax. Other items included in this category: Chapstick, adult diapers and dandruff shampoo. But not tampons and pads—an exclusion that the plaintiffs and their lawyers, Laura Strausfeld and the firm Emery Celli Brinckerhoff & Abady argue is in violation of New York State Tax Law, the U.S. Constitution's 14th Amendment and the New York Constitution's equal protection clause. The complaint states: “The tampon tax is irrational. It is discrimination. It is wrong.”
If the plaintiffs in these class action suits succeed, the states will not only be required to eliminate the tax but will also have to issue a remedy to all members of the class. The most likely outcome would be a sales tax refund—in the form of a tax rebate, a check or a coupon—that can be applied toward future tampon and pad purchases (or better yet, donated to women's shelters for bulk purchase of these products).
President Obama confessed that, prior to the YouTube question, he was unaware of the fact that most states don't exempt tampons from sales tax or otherwise classify them as a necessity. But the economics of menstruation began making international headlines last summer when Canada succeeded in eliminating its national Goods and Services Tax on menstrual products. Other global leaders, British Prime Minister David Cameron and France's Prime Minister Manuel Valls among them, have been engulfed in an ongoing battle over the tampon tax as raucous floor debates, failed votes and viral protests unfolded in recent months. The fight was won more than a decade ago in Kenya, which was the very first nation in the world to eliminate the sales tax on menstrual products (in 2004); Kenya also ended an import duty on sanitary pads in 2011, helping to reduce costs significantly.
Most recently, tampons became the linchpin in a fascinating political struggle among Britain's political parties and the European Union—culminating in the EU's declaration on March 17 that the VAT need not be applied to menstrual products any longer. The U.K. quickly legislated the end of the tax. Other member states are now able to do the same.
It was President Obama who called out the crux of the problem. When women aren't represented in the nation's leadership, or present in halls of government where decisions are made, their needs are disregarded, marginalized—even mocked. When the tax issue was debated in British Parliament last year, Tory MP Bill Cash wouldn't even utter the word tampon, until ceremoniously called out by Labour MP Stella Creasy.
MP Creasy's speech struck a chord: “Tampons and sanitary towels, even I'm struggling with the words tonight it seems, have always been considered a luxury. That isn't by accident, that's by design of an unequal society, in which the concerns of women are not treated as equally as the concerns of men.”
And now President Obama has echoed the same, suggesting that women should not be taxed and financially penalized simply because they are women.
As a matter of policy, the President's suggestion that activists organize state by state on the sales tax issue is on point. We've made good progress in 2016 already. But there's a long way to go until we see all 40 states eliminate the tax.
And sales tax reform—while important—really only scratches the surface. It sends a message about fairness, equity and necessity, and even lifts a small financial burden. But it doesn't go far enough. For those who are struggling, a tax savings of pennies on the dollar isn't likely going to make a dent.
In the U.S., sound menstrual policy would mandate the inclusion of feminine hygiene products in Flexible Spending Accounts—through which people can place up to $2,550 of pre-tax income in an account dedicated for certain medical expenses. At present, these items are ineligible due to misguided classification by the IRS. New York Congresswoman Grace Meng has introduced a bill that would rectify this.
Representative Meng also recently convinced the Emergency Food and Shelter National Board Program, administered by FEMA, to allow homeless shelters to purchase feminine hygiene products with grant funds. (Prior to her recommendation, toothpaste was an eligible expense, but not tampons.)
Other reforms could include making an allowance for purchase of menstrual products as part of the federal Food Stamps and WIC programs.
Menstrual health is an issue of educational equity too. In practical terms, the inability to access hygiene products can affect girls' attendance at and productivity in school. A problem that long has been documented in developing countries—in Sierra Leone, more than a fifth of girls miss school because of their periods; in Afghanistan and Nepal, three out of ten girls do—many are shocked to learn this isn't just a third world occurrence. New York City, under the leadership of Council Member Julissa Ferreras-Copeland, recently introduced legislation to provide free tampons and pads in all of the city's public schools, after holding teen focus groups and piloting a project this year. The pilot program has already seen increased attendance rates in the inaugural site – up from 90 percent to 92.4 percent in just six months. (New York's full legislative package includes the city's shelters and corrections facilities too.) Similar bills targeting public facilities have been introduced in Wisconsin by Rep. Melissa Sargent and in South Carolina by Rep. Cezar McKnight.
Managing menstruation is a necessity for half the world's population, not a privilege. The time is now to demand sound policies—starting with sales tax reform—that recognize menstrual hygiene for what it is: a matter of public health, economic parity and gender equality.
1 This list was originally published in an article I wrote for Ms. Magazine online.
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