March 29, 2016 Practice Points

New York Residents File Suit to Eliminate the "Tampon Tax"

By Handel Destinvil

On March 3, 2016, a group of five New York County residents (Plaintiffs) filed a class action lawsuit in New York State court, seeking "to eliminate the 'Tampon Tax' imposed by the New York State Department of Taxation and Finance (the 'Department') on women in New York State."

The Plaintiff's grievances are directed principally at N.Y. Tax Law § 1105(a). Under that statute, the State of New York is allowed to collect a sales tax of 4 percent on "every sale of tangible personal property" unless the product being sold fits within a statutory exemption under N.Y. Tax Law § 1115. "Feminine hygiene products," including tampons and sanitary pads, have not qualified for a medical exemption, or any other statutory exception, making them subject to the 4 percent sales tax. The State Department of Taxation and Finance, in guidance to drug stores and pharmacies, has explained that such products are not 'medical devices' for purposes of the tax statutes, instead being used "to control a normal bodily function and to maintain personal cleanliness."

In their complaint, the Plaintiffs take great issue with this statutory reading, stating in their complaint that it is "undisputable that tampons and sanitary pads serve multiple medical purposes," citing to studies that show, for example, that regular tampon usage may decrease the risk of endometriosis in women. Similarly, the Plaintiffs cite to regulations of the federal Food & Drug Administration, which currently categorize tampons and sanitary pads as "medical devices," and a decision of the Supreme Court of Illinois, which holds similarly. In short, the Plaintiffs argue that "[t]axing tampons and pads is not substantially related to an important state interest" and that there is no rational basis for the regulation separate of an "intent to discriminate" on the basis of sex.

The Plaintiffs seek the elimination of the tax, as well as a potential sales tax refund to all women who are alleged to have been treated unequally by means of the tax statute. Ilann M. Maazel, a partner with Emery Celli Brinkerhoff and Abady, LLP, and lead counsel in the case, has stated that "[w]e hope this will be the beginning of the end of the tampon tax in the whole country."

Currently, five states—Minnesota, Pennsylvania, New Jersey, Maryland, and Massachusetts—have created tax exemptions for tampons and sanitary pads, and five other states have no sales taxes on any products, which means that women in 40 states pay tax on tampons and sanitary pads. However, there has been much recent activity on the issue nationally. Within the 2016 legislative session, "bills to exempt tampons and pads from sales tax have been introduced or resurrected in California, Connecticut, Michigan, New York, Utah, Virginia and Wisconsin, as well as in the City of Chicago." Moreover, in New York State—where the above suit is being filed—the New York State Assembly in March 2016 also passed unanimous legislation to exempt feminine hygiene products from the New York state sales taxes, with the legislation now moving to the New York State Senate for further debate and a vote.

As activists have stated an intention to use the present New York impact litigation as a model for similar suits in other states, if successful, practitioners in the area of Civil Rights should keep abreast of developments in Seibert v. The New York State Dept. of Taxation and Finance as it progresses through the New York State courts.

Keywords: minority, trial lawyer, equal protection, New York State, tampon tax, sales tax, constitutionality

Handel Destinvil is assistant corporation counsel for the City of Newark Law Department in Newark, New Jersey.

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