Was a capsule-form dietary supplement marketed for weight control exempt from Florida sales tax?

Plain-English summary

The Florida Department of Revenue concluded that the submitted capsule-form dietary supplement marketed for weight control was exempt from sales tax as a food product.

The label identified the product as a dietary supplement. Its ingredients included chromium, caffeine, decaffeinated green tea extract, and ashwagandha root extract. Florida's incorporated nontaxable list included dietary and herbal supplements and vitamin and mineral supplements.

What this means for you

Supplement retailers

The exemption rested on the product submitted, its dietary-supplement label, and Florida's nontaxable product list.

Tax professionals

Check the actual label and current list for other products rather than relying only on marketing claims such as weight control.

Common questions

Q: Was the submitted supplement taxable?
A: No.

Q: Did capsule form prevent the food exemption?
A: No.

Citations and references

• Fla. Stat. §§ 212.08(1) and 213.22
• Fla. Admin. Code rr. 12A-1.011 and 12A-1.097

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 12A-030

Original ruling text

Interim
Executive Director
Marshall Stranburg

QUESTION: Whether the sale of a dietary supplement sold in capsule form used for weight
control is exempt from sales tax.
ANSWER: The product submitted for review is a dietary supplement and is exempt under s.
212.08(1), F.S.
December 5, 2012

Re:

Technical Assistance Advisement – TAA 12A-030
Dietary Supplement
Taxpayer Name: XXX (“Taxpayer”)
Taxpayer ID Number: XXX
Sales and Use Tax
Section 212.08(1), Florida Statutes (F.S.)
Rule 12A-1.011, Florida Administrative Code (F.A.C.)

Dear XXX:
This response is in reply to your letter to the Department, dated XXX, in which you are
requesting the Department's issuance of a Technical Assistance Advisement ("TAA") pursuant to
s. 213.22, F.S., and Chapter 12-11, F.A.C., regarding whether the sale of a dietary supplement is
exempt from sales tax as food product under section 212.08(1), F.S. An examination of your
petition has established that you have complied with the statutory and regulatory requirements
for issuance of a TAA. Therefore, the Department is hereby granting your request for issuance
of a TAA.
As provided in s. 213.22(1), F.S., a technical assistance advisement may be issued to a taxpayer
who requests an advisement relating to the exemptions in s. 212.08(1) or (2), F.S., at any time.
Technical assistance advisements shall have no precedential value except to the taxpayer who
requests the advisement and then only for the specific transaction addressed in the technical
assistance advisement, unless specifically stated otherwise in the advisement.
As stated in your letter, Taxpayer is an online retailer of a dietary supplement. The supplement,
XXX, is produced in capsule form and contains chromium, a trace mineral that is essential for
normal protein, fat, and carbohydrate metabolism and is used for weight control by burning fat,
reducing appetite, and increasing energy. The product also contains caffeine, decaffeinated
green tea extract, and ashwagandha root extract. As indicated on the product label, the product is
a “dietary supplement.”

Child Support Enforcement – Ann Coffin, Director  General Tax Administration – Maria Johnson, Director
Property Tax Oversight – James McAdams, Director  Information Services – Tony Powell, Director

www.myflorida.com/dor
Tallahassee, Florida 32399-0100

Technical Assistance Advisement
Page 2
Section 212.08(1), F.S., provides an exemption for “food products” sold for human consumption.
The term “food products,” as defined in s. 212.08(1)(b), F.S., includes edible commodities,
whether processed, cooked, raw, canned, or in any other form, which are generally regarded as
food.
According to the Dietary Supplement Health and Education Act (DSHEA) of 1994, a “dietary
supplement” is a product taken by mouth that contains a dietary ingredient intended to
supplement the diet. The “dietary ingredient” in these products may include: vitamins, minerals,
herbs or other botanicals, amino acids, and substances such as enzymes, organ tissues,
glandulars, and metabolites. Dietary supplements can be found in many forms, including tablets,
capsules, softgels, liquids, and powders. DSHEA places dietary supplements in a special
category under the general umbrella of “foods,” and requires that every supplement be labeled a
dietary supplement.
The Nontaxable Medical and General Grocery List (DR-46NT), incorporated by reference in
Rule 12A-1.097, F.A.C., includes dietary supplements and substitutes, herbal supplements, and
vitamins and mineral supplements as exempt products.
Based on our review of the product, it is exempt from sales tax pursuant to s. 212.08(1), F.S., as
a “food product.”
This response constitutes a Technical Assistance Advisement under s. 213.22, F.S. which is
binding on the department only under 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 15 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) 717-7202.
Sincerely,
Richard R. Parsons
Tax Law Specialist
Technical Assistance & Dispute Resolution
(850) 717-7202
Record ID: 134209