Why Texas’ Tampon Tax Is Failing on Every Level and Needs to End

The first and most obvious reason why taxation of menstrual products such as tampons, sanitary napkins and panty liners – more commonly known as the tampon tax – should end has nothing to do with fairness, public policy or the Constitution – although, as noted below, these all provide powerful additional arguments for the same result.

On the contrary, according to elementary principles of administrative law, the comptroller’s own regulations already prohibit the taxation of menstrual products. Comptroller’s Rule 3.284 includes wound care dressings among drugs and drugs that are tax-exempt by law. This rule defines a wound care dressing as “an item that absorbs drainage from the wound, protects healing tissue, maintains a moist or dry (as appropriate) wound environment, or prevents bacterial contamination.

Menstrual products fit this definition perfectly. While some may view menstrual products as a modern convenience, they are actually a medical necessity, according to Dr. John Irwin’s expert report filed by Baker Botts in support of the tampon tax challenge. Irwin is an obstetrician and gynecologist with over 40 years of experience; he is also the former Chief of Surgery from 2000 to 2016 at Women‘s Hospital of Texas at Texas Medical Center in Houston. Her report states that, medically speaking, menstruation creates what is effectively an open sore in the uterine cavity. Menstrual products evacuate and absorb the resulting drainage and thus protect the healing tissue from bacterial contamination.

Additionally, menstrual products maintain a healthy environment for sensitive vulvar tissue by absorbing moisture into their inner layer while maintaining a relatively dry outer layer. In other words, using the terms of Rule 3.284, menstrual products”[absorb] wound drainage, protect healing tissue, maintain a moist or dry wound environment (as appropriate), [and] prevent bacterial contamination.

And that only covers routine menstrual uses of menstrual products. They also perform other indisputable medical functions, such as in cases of vaginitis and after surgical procedures such as hysterectomy, childbirth and treatment for vulvar cancer.

There are also, to be clear, no safe alternatives to menstrual products. According to Irwin’s report, using gauze, toilet paper, or other similar types of low-grade substitutes might work to absorb moisture at some level, but would also create an unhealthy environment of constant humidity in due to the absence of the unique absorbent properties of menstrual products. This, in turn, could lead to a number of adverse outcomes, including toxic shock syndrome, sepsis, and death.

The Texas Comptroller’s landmark application of Rule 3.284 lends further support to the conclusion that menstrual products qualify as wound care dressings. The Comptroller interpreted the definition of wound care dressing broadly to include, among others, gauze, bandages, corn pads, callus removers, skin staples and eye shields. While some of these items, such as gauze and adhesive bandages, conjure up traditional images of wound care, items such as eye shields, corn pads and callus removers do not. Menstrual products – as the word hygiene itself underlines – are specifically designed to prevent bacterial infections by ensuring that blood, vaginal discharge or any other moisture is carried away from the surface of the skin and therefore certainly has a greater claim to wound care product status than corn pillows and callus removers. If these qualify as wound care products, menstrual products qualify even more so.

The stamp tax is also constitutionally invalid. This goes against the mandate of the Texas Constitution that “[e]standing under the law shall not be denied or restricted on the basis of sex, race, color, creed or national origin. Specifically, the Comptroller’s exclusion of menstrual products from tax-exempt treatment while granting it to similar gender-neutral products and other male-specific products like libido enhancers is discrimination based on inadmissible sex. Additionally, the tampon tax also violates the requirement of the Texas Constitution that “[t]taxation must be equal and uniform.

Although states generally have broad powers to impose or collect taxes, they must not make arbitrary, unreasonable, or capricious classifications among taxpayers. The Menstrual Products Tax fails this test because the Comptroller has no rational basis for its disparate treatment of Gender Neutral Blood Absorbent Products and Menstrual Blood Absorbent Products.

Finally, beyond strictly legal arguments, the discriminatory tax treatment of menstrual products is too poor a public policy. Non-medically necessary products like male libido enhancers and prostate vitamins are tax exempt in Texas, but medically necessary menstrual products are not. So it’s no exaggeration to say that the Texas Controller favors male libido over safe and effective menstruation management. It is indefensible; no one can seriously argue that this is part of a rational system of taxation.

The stamp tax fails at all levels. It is bad administrative law because it is contrary to the text and historical application of the comptroller’s own regulations. It is a bad constitutional law because it irrationally discriminates against women. And it’s bad policy because women’s unique medical needs shouldn’t be treated as less important than male libido. It’s time for the stamp tax to end.

Baker Botts LLP represents Sahar Punjwani and the Texas Menstrual Equity Coalition on a pro bono basis in their challenge to the taxation of menstrual products in Texas. The dispute is currently the subject of administrative litigation before the Texas Comptroller of the Public Accounts.

This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Meghan McElvy is a partner in the Houston office of Baker Botts. She represents clients in a wide range of matters, with a particular focus on energy litigation and regulatory proceedings.

Laura Cordonnier McGonagill is a partner in the Houston office of Baker Botts. She handles energy and tort disputes in state and federal courts, as well as in domestic and international arbitrations.

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