When someone goes to the store to stock up on tampons and pads, the bill adds up quickly. Sometimes, a person might buy multiple products (tampons, regular pads, night time pads, panty liners) all for one menstruation cycle. The purchaser likely does not even notice they are being taxed when buying these items.
Is it fair for feminine hygiene products to be taxed? Recently, the issue of taxing personal feminine products is not only being noticed, but people are questioning it. Some are making efforts to repeal the tax altogether, such as the bill that has already passed the Illinois senate and is now heading to that state’s house of Representatives to exempt feminine hygiene products from sales tax, or the recent lawsuit in New York opposing the state’s categorization of pads and tampons as "general merchandise” instead of "medical supplies" with tax exemption. Or, the pending lawsuit out of Cleveland filed against the Ohio Department of Taxation for discrimination against women.
The “tampon tax,” also referred to as the “pink tax,” is a nationwide conversation that is also impacting us on a state level. Through legislation, lawsuits and community support, some Ohioans are arguing this issue means a lot more than just losing out on pocket change.
A sales taxplanation
According to the Ohio Department of Taxation, Ohio sales tax is placed on “retail sale, lease, and rental, of tangible personal property.” The current Ohio sales tax rate is 5.75%— compared to New York’s state sales tax, for example, which is currently 4%— before any additional surtaxes applied by counties.
Tampons are being subjected to additional surtaxes as well as sales tax in most states, including Ohio.
Some states (such as Montana, Oregon, New Hampshire, and Alaska) do not tax tampons, but these states have do not place sales tax on any products. Only a few states (Minnesota, Pennsylvania, Maryland, Massachusetts, and soon possibly New York) place sales tax on products but have elected not to tax feminine hygiene products.
The qualifier for products exempt from sales tax is where the discussion becomes difficult to follow. In some states, an item is taxed depending on whether the item is defined as a “necessity” or a ”luxury” item. Feminine hygiene products are often designated as “luxury” items, prompting outrage, since they are subject to a sales tax which is not applied to other products such as potato chips or gum, depending on where you are buying. Since tampons, pads, and other feminine hygiene products serve a necessary purpose related to biology, the labeling of them as a "luxury" is contentious. While this label has been reportedly applied to the products in other states, this is not strictly true for Ohio.
According to Gary Gudmundson of the Ohio Department of Taxation, “no such classification between “luxury” and “necessity” items exists in the Ohio sales tax scheme.” In Ohio, there are no classifications for products that differentiate subjection to sales tax; although, Ohio sales tax currently exempts select items, such as groceries, prescription drugs and various pieces of medical equipment. All “personal, tangible” items are taxed, unless specifically exempted under the state’s tax laws. However, this exemption does not include tampons, pads, or diva cups.
“Sales tax can be complicated,” Gudmundson stated, referring to how the state decides which items are exempt and which are not.
To some, the tax on tampons does not seem quite so complicated.
The path to change
To fight against this tax, groups across the country are working with political leaders and legal professionals to rescind the tax on tampons and similar products, as well as to obtain refunds for the people who buy them.
One of these groups, based in Cleveland, includes four female plaintiffs: Stephanie L. Rowitz, Jamie N. Weisbarth, Madison R. Weisbarth, and McKenna L. Weisbarth. They are currently suing the Ohio Department of Taxation to eliminate this tax, arguing that the existence of the tax discriminates against people who need these products on a monthly basis. The lawsuit argues that feminine hygiene products are medically necessary and that taxing them is unfair to the people who buy them.
Why is this tax deemed unfair? Sure, tampons have a sales tax, but so do clothing and toilet paper, products that everyone needs. However, the premise of this lawsuit relies on the fact that there is no counterpart or comparative product for men subject to sales tax. While everyone who buys clothes in Ohio must pay a sales tax on those items, only people who experience menstruation cycles must pay for feminine hygiene products and the tax that is levied on those products. Therefore, the lawsuit contends that these taxes punish those that buy these products, arguing that what it comes down to is being taxed for having a period. And these same people are tired of putting their money where their menstruation is.
Sandra Kelly, an attorney for the plaintiffs in the lawsuit, explains that the suit follows one in New York, which was the first state where such a lawsuit has been filed, “We noticed the issue got quite a bit of attention in New York. The more we talked about it, the madder and madder we got. There are a certain number of cases in my career where I think ‘this is so wrong.’ It [the tax] is not a lot for any one individual, but together it [the sales tax collected on feminine hygiene products] adds up,” Kelly stated.
An issue that is more taxing on some than others
Filing a lawsuit seemed like the logical choice for the plaintiffs, after seeing the trajectory of that action in New York and attention it directed to the issue.
According to Kelly, “It comes down to two issues. Constitutionally, women are being taxed on something men wouldn’t be and have no corollary to. The other thing is: these are medically necessary items. They should be exempted from sales tax.”
If the products are exempt from sales tax, some might point to the lack of tax revenue collected and the effect that will create.
“It occurs to me just how stupid this law is,” said Kelly, pointing out that the revenue generated from taxing tampons is a tiny part of the state’s tax revenue— $11 million annually— but affects the people who buy the products. “It’s like they’re taxing the people they thought wouldn’t complain. But guess what? We did.”
Measures were filed in April and are now being pursued to have the litigation certified as a “class action” suit. The plaintiffs are alleging that taxing women on these products for periods screams of unequal protection under the U.S. Constitution.
The lawsuit’s goals are to eliminate the tax on tampons, as well as get refunds on previously paid taxes which, according to the lawsuit, were “wrongfully collected.” The path to getting tampons “tax free” is all about getting results… and perhaps some answers. Why are tampons being subjected to sales tax in the first place?
“Somebody decided these were not exempt. This is essentially taxing women for something they have no control over,” said Kelly.
But why? The answer could be just as frustrating to some as the tax itself: Perhaps no one thought to question it, or make a move to abolish it.
This may seem like a minimal or “pennies on the dollar” issue, but it is impossible to argue that some people aren’t affected more by this tax than others.
“Single women and women in poverty also have to pay these taxes, and something like this affects the single, low-income female more significantly [as a regressive tax, a tax which has a greater effect on those with less disposable income],” said Kelly.
Sarah Skow, an attorney in Toledo, understands as well that feminine hygiene products are a bigger issue for those who do not have a much disposable income. Skow is the grass-roots organizer of a feminine hygiene product drive held last year. She started this local drive after reading about how difficult it was for homeless and/or low-income women and girls to manage and find places to obtain products for use during their menstrual cycles.
Though she is not involved on the legal side of the issue, Skow says she recognizes the tax issue particularly affects those in poverty. “Women cannot use food stamps on items like tampons and maxi pads. Toilet paper isn’t covered either. They are not considered a necessity. They’re not cheap, first of all, and then you have the tax on top of it.”
In Toledo
Skow saw this issue as one where people could really make a big difference with a fairly modest contribution. She mentioned the stigma that surrounds discourse on menstruation, particularly for those who lack resources or access to feminine hygiene products. The tax on tampons requires spending more on these products, especially for those for whom it is already difficult to gather enough money to pay for other necessities. “It’s a public health and dignity issue,” said Skow.
To help make a change, Skow put together a Facebook event, teaming with several women who own businesses in and around downtown Toledo to serve as collection sites for feminine hygiene product donations. The drive collected tens of thousands of units of tampons, pads, and liners which were then delivered to shelters and social service organizations in the area.
According to Skow, people have said they would be interested in doing the drive again soon, but, as she points out, “we have to be sensitive to issues facilities have with storage.” However, Skow has informally been taking donations to pass along and will continue to accept donations of any of these products at her office with the Spengler Nathanson P.L.L. Attorneys at Law at 4 Seagate.
Skow says they are planning to do another drive in the fall, in September or October, though the exact time frame is still undecided.
As far as the tampon tax, Skow is not currently aware of any actions, legal or otherwise, being taken in Toledo specifically.
She said, “I’ve been personally following what people have been doing with this issue. It’s certainly a matter of public health and how women and girls are treated with this issue. I have not been approached, nor am I involved with any suits filed, but I have been following them [the current suits] along.”
She says the response to this issue has been positive. The women’s shelters, such as Aurora House, have been very appreciative and receptive, and so have citizens of Toledo. “I think it’s another way where you’re seeing more and more people trying to de-stigmatize this public health issue.”
While this issue has certainly garnered a lot of attention, it is clear that there is more than one way to get involved. From legal action to community support, the pink tax is nearing resolution. As we await results of the Cleveland lawsuit, we can look to similar state resolutions which indicate that menstruation in Ohio will soon cost a lot less.
For additional information about Ohio sales tax, visit tax.ohio.gov.
To donate or get involved with the donation drive, contact Sarah Skow at [email protected]
