Is Sales Tax On Tampons And Pads Unconstitutional?

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Women and people who menstruate spend an estimated $150 million a year on average just on the sales tax for tampons and pads. (Rich Pedroncelli/AP)
Women and people who menstruate spend an estimated $150 million a year on average just on the sales tax for tampons and pads. (Rich Pedroncelli/AP)

Menstrual products like tampons and pads are subject to sales tax in 34 states.

On average, women and people who menstruate spend an estimated $150 million a year just on the sales tax for these items. One in four women struggle to afford period products, according to the nonprofit PERIOD.

Now, there’s a push to outlaw the so-called “tampon tax” across the country.

Jennifer Weiss-Wolf, an activist and co-founder of Period Equity, says she got together with a group of lawyers to make the case that taxing menstrual products is “sex-based discrimination and therefore unconstitutional and therefore illegal.”

“It's not really just a matter now of asking legislators to do the right thing,” she says, “but it's bringing the force of the law to let them know that they must cease this practice.”

In June, California put a pause on the taxation of menstrual products — but only for a two-year period. But Weiss-Wolf is arguing for a permanent solution by mobilizing to get all 50 states to permanently end sales tax on menstrual products.

In a 2015 Cosmopolitan article, she kicked off a petition against menstrual inequality. Over the past four years, she says 32 states have introduced legislation to eliminate the sales tax, but only six states — Connecticut, Florida, Illinois, Nevada, New York and Rhode Island — have successfully implemented the law. Those six states saw bipartisan support for the measure, she says.

This year, lawmakers in 22 states introduced bills to eliminate the sales tax — but none advanced.

Permanent legal change can be difficult considering states are allowed to make tax exemptions for items that they deem necessary, Weiss-Wolf says.

“States have actually chosen a lot of ... not so necessary objects or items to put in that category, ranging from barbecued sunflower seeds to gun club memberships to Mardi Gras beads,” she says. “People often point to the fact that Viagra is sales tax exempt.”

But routinely, she says, legislators have ignored menstrual products. Some argue if states repeal these types of taxes, a great source of revenue might be lost. Weiss-Wolf says that is not necessarily the case.

Revenue loss depends on the population and number of people within the state who menstruate and buy products, she says, which can range from $1 million in Utah to $20 million in California.

“For what it's worth, in terms of large state budgets, it's probably a drop in the bucket as far as the state's economy is concerned,” she says.

The broader argument against taxation should be based on fairness and equity, she says, which begs the question: “Why should that revenue be on the backs of just those who menstruate when there are items that we could choose to replace that with that are either less necessary or used equally by the whole population?”

Although the pink tax, a reference to the extra amount women are charged as consumers of certain products and services, is not state-generated revenue, it can be compared to the tampon tax in terms of sex-based price gouging, Weiss-Wolf says.

“I think both are examples of how the economy really is not set up to work in favor of women's interests,” she says.

As the nation’s first-ever National Period Day approaches, she says witnessing the enthusiasm and activism around a topic that was once “really something of an orphan issue” is energizing.

She’s continuing her fight for accessible menstrual products, because in a true democracy, she says, access to tampons and pads are crucial in order for people to live “their healthiest, best lives.”

Cristina Kim produced and edited this interview for broadcast with Todd MundtSerena McMahon adapted it for the web.

This segment aired on October 18, 2019.

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