Were diapers, briefs, and protective underwear sold as incontinence products subject to Florida sales tax?

Plain-English summary

The taxpayer marketed diapers, briefs, protective underwear, and similar incontinence garments directly to consumers and asked Florida to assume that it had nexus in the state.

Florida classified the products as personal hygiene items rather than automatically exempt medical supplies. Their retail sale was subject to sales tax unless the product was dispensed under an individual prescription written by a qualified medical practitioner.

Because the taxpayer expected to have a Florida location, the ruling also instructed it to register as a dealer before making Florida sales.

What this means for you

A health-related use does not by itself create a medical-product exemption. For these garments, the transaction needed a qualifying individual prescription, not merely a general medical recommendation.

Common questions

Were over-the-counter incontinence garments taxable? Yes.

What made a sale exempt? Dispensing under an individual prescription from a qualified practitioner.

Did the ruling address nexus? It assumed nexus rather than deciding it.

Citations and references

• Fla. Stat. §§ 212.08 and 212.18 and Fla. Admin. Code rr. 12A-1.020 and 12A-1.021, as listed or discussed in the advisement.

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 10A-043

Original ruling text

SUMMARY
QUESTION:
Are the sales of incontinence products in Florida subject to tax?
ANSWER:
The sale of personal hygiene products, which include diapers, briefs, and protective
underwear, are subject to sales tax, unless dispensed according to an individual
prescription written by a qualified medical practitioner.
October 12, 2010
XXX
Re:

Technical Assistance Advisement 10A-043
Florida Sales and Use Tax
Incontinence Products
Sections: 212.08 and 212.18, Florida Statute (F.S.)
Rules: 12A-1.020 and 12A-1.021, Florida Administrative Code (F.A.C.)
Petitioner: XXX (“Taxpayer”)

Dear XXX:
This letter is a response to your petition dated August 11, 2010, for the Department's
issuance of a Technical Assistance Advisement ("TAA") concerning the above
referenced petitioner and matter. Your petition has been carefully examined and the
Department finds it to be in compliance with the requisite criteria set forth in Chapter 1211, F.A.C. This response to your request constitutes a TAA and is issued to you under the
authority of Section 213.22, F.S.
FACTS
Taxpayer is an S corporation organized under the laws of the State of XXX. Taxpayer is
a marketer and distributor of various products to consumers for personal use. Customer
sales are generated through television commercials, direct mail, Internet, and referrals
from other sources.
Taxpayer’s primary product line consists of incontinence garments, including diapers,
briefs, protective underwear, etc. For purposes of this TAA, Taxpayer has requested that
this response only address the taxability of its incontinence products. Taxpayer has also
requested that this TAA assume that Taxpayer has nexus in Florida.
REQUESTED ADVISEMENT
Are Taxpayer’s sales of incontinence products (“Products”) in Florida subject to tax?

Technical Assistance Advisement
Page 2
APPLICABLE LAW, DISCUSSION, AND CONCLUSION
Florida law provides that every person is exercising a taxable privilege who engages in
the business of selling tangible personal property at retail in Florida. Retail sales of
tangible personal property are subject to tax, unless specifically exempt by Chapter 212,
F.S. See s. 212.05(1)(a)1.a., F.S. One of the exemptions is for the sale of medical
products and supplies. Subsection 212.08(2)(a), F.S., specifically provides in part the
following:
(2) EXEMPTIONS; MEDICAL.-(a) There shall be exempt from the tax imposed by this chapter any medical
products and supplies or medicine dispensed according to an individual
prescription or prescriptions written by a prescriber authorized by law to prescribe
medicinal drugs; hypodermic needles; hypodermic syringes; chemical compounds
and test kits used for the diagnosis or treatment of human disease, illness, or
injury; and common household remedies recommended and generally sold for
internal or external use in the cure, mitigation, treatment, or prevention of illness
or disease in human beings, but not including cosmetics or toilet articles,
notwithstanding the presence of medicinal ingredients therein, according to a list
prescribed and approved by the Department of Health, which list shall be certified
to the Department of Revenue from time to time and included in the rules
promulgated by the Department of Revenue. . . .
Rule 12A-1.020, F.A.C., provides guidance on the sale of medical products and supplies.
Subsection (5)(c) of this rule specifically addresses the sale of personal hygiene products
which would include incontinence garments, such as diapers, briefs, and protective
underwear. Here, the rule specifically provides:
(5) COMMON HOUSEHOLD REMEDIES;
ARTICLES; HYGIENE PRODUCTS.

COSMETICS;

TOILET

(c) Personal hygiene products, except when dispensed pursuant to a prescription
written by a licensed practitioner, are subject to tax.
Therefore, the sale of personal hygiene products, which include diapers, briefs, and
protective underwear, are subject to sales tax unless dispensed according to an individual
prescription written by a qualified medical practitioner.
Subsection 212.18(3)(a), F.S., provides that every person engaging in or conducting
business in Florida as a dealer must file with the department an application for a
certificate of registration for each place of business. You have indicated that Taxpayer
will have a Florida location. I have enclosed a Form DR-1, Application to Collect and/or

Technical Assistance Advisement
Page 3
Report Tax in Florida. Taxpayer should complete this application and return it to the
address listed on the form prior to making sales of Products in Florida.
This response constitutes a Technical Assistance Advisement under S. 213.22, F.S.,
which is binding on the Department only under the facts and circumstances described in
the request for this advice, as specified in S. 213.22, F.S. Our response is predicated on
those facts and the specific situation summarized above. You are advised that subsequent
statutory or administrative rule changes or judicial interpretations of the statutes or rules
upon which this advice is based may subject similar future transactions to a different
treatment than expressed in this response.
You are further advised that this response, your request, and related backup documents
are public records under Chapter 119, F.S., and are subject to disclosure to the public
under the conditions of S. 213.22, F.S. Confidential information must be deleted before
public disclosure. In an effort to protect confidentiality, we request you provide the
undersigned with an edited copy of your request for Technical Assistance Advisement,
the backup material, and this response, deleting names, addresses, and any other details
which might lead to identification of the taxpayer. Your response should be received by
the Department within 10 days of the date of this letter.
If you have any further questions with regard to this matter and wish to discuss them, you
may contact me directly at 850-922-4784.
Sincerely,

Leigh L. Ceci
Tax Law Specialist
Technical Assistance & Dispute Resolution
Enclosure: Form DR-1, Application to Collect and/or Report Tax in Florida
Record ID: 87989