Academic journal article Northwestern University Law Review

End the Bloody Taxation: Seeing Red on the Unconstitutional Tax on Tampons

Academic journal article Northwestern University Law Review

End the Bloody Taxation: Seeing Red on the Unconstitutional Tax on Tampons

Article excerpt

Introduction

Women in the United States, Europe, and Australia protested their nations' respective "tampon taxes" in 2015 and 2016 with a significant amount of success. These advocates vastly increased the amount of awareness and media attention on the tampon tax, which led to the elimination or reduction of the tax in some American cities and states, Canada, and France.1 The so-called tampon tax is the tax levied on feminine hygiene products: tampons, sanitary napkins, and menstrual cups.2 Consumers and legislators across the world have openly questioned why items like dandruff shampoo and lip balm are often exempt from state and federal taxes as "medical appliances" or "necessities" while tampons and pads continue to be taxed in most states. This questioning finally came to a head in 2015 and 2016 when groups of women in New York,3 Florida,4 California,5 and Ohio,6 filed class action lawsuits contending that state taxes on feminine hygiene products were unconstitutional. Then, state legislatures in New York,7 Illinois,8 and California9 passed bills exempting tampons and other feminine hygiene products from state sales taxes. At the same time, Canada exempted feminine products from its sales tax,10 and efforts to abolish the tampon tax continued in the United Kingdom11 and Australia.12 Even President Barack Obama commented on the tax, suggesting that the tampon tax exists because men were the ones debating and ultimately passing state tax laws and perhaps were either unconcerned with13 or ignorant of women's need for feminine hygiene products.

In the United States, each state legislature has the authority to determine its own sales tax.14 Most states tax all personal non-real property through their respective sales taxes but carve out exemptions for certain goods, which are usually whatever the state defines as a medical appliance or a necessity. Sales-taxed items thus carry the inherent implication that they are luxury, nonnecessary goods. Sales taxes usually at least exclude groceries, food stamp purchases, and medical appliances.15 Tax-exempt "medical appliances" can be a broad category, including products ranging from prescription medicine and insulin to lip balm and cotton balls, depending upon the state.16 Some cities and states have additional exemption categories, such as agriculture supplies and clothing beneath a certain price point.17

Proponents of abolishing the tax on feminine hygiene products contend that access to tampons and sanitary napkins is a basic human rights issue, that these products are necessary medical goods, and that levying a tax on a gendered product is a violation of the Fourteenth Amendment's Equal Protection Clause. The effect of the tax on women is enormous: the average woman is estimated to have roughly 450 periods in her lifetime, and since nearly every woman uses feminine hygiene products during her period, the additional cost imposed by state sales tax on feminine hygiene products adds up.18 Many low-income women have difficulty obtaining feminine hygiene products and the Supplemental Nutrition Assistance Program (SNAP) does not offer funds that may be used toward purchasing them, forcing women with limited means to be resourceful-by using old rags, for instance.19 Additionally, the very fact that tampons are used to absorb a bodily fluid during menstruation means the tax raises public health and sanitation concerns.20

Furthermore, feminine hygiene products seem to fit the tax-free categorization of medical appliances or necessities better than some of the existing items in those categories. For example, before the New York state legislature finally exempted tampons and sanitary pads from local and state sales taxes, Rogaine, birth control pills, condoms, bandages, dandruff shampoo, and lip balm had long been exempt due to their use as medical equipment or, more generally, to aid health.21 Moreover, the U.S. Food and Drug Administration (FDA) classifies feminine hygiene products as "medical device[s],"22 yet most states with sales taxes exclude them from that category. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.