New York’s ‘Tampon Tax’ Leads to Class Action Lawsuit

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A class action lawsuit was filed Thursday against the New York State Department of Taxation and Finance calling on the agency to put an end to a 4 percent sales tax on tampons and maxi pads.

By filing the class action lawsuit, the five plaintiffs seek to eliminate the so-called “Tampon Tax” in New York, which they claim violates New York law and is unconstitutional under the Equal Protection clauses of both the U.S. Constitution and the New York Constitution.

“It is a vestige of another era, and now it is time to end it,” the tampon tax class action lawsuit states.

According to the tampon tax class action lawsuit, the state of New York does not impose a tax on medical items. “But the Department imposes a double standard when defining medical items for women and men,” the tampon tax class action lawsuit states. “Medical products exclusively for women are taxed. Medical products also used by men are not.”

The plaintiffs point to items such as foot powder, chapstick, face wash, Rogaine, dandruff shamoo, incontinence pads and adult diapers, which are not taxed. However, tampons and sanitary pads—medical items that are used only by women—are subject to sales tax in New York.

“Tampons and sanitary pads are far more necessary to the preservation of health than Rogaine, dandruff shampoo, or many other products the Department considers medically exempt,” the plaintiffs allege in the New York tampon tax class action lawsuit. They claim that there is no reason for the tampon tax other than to discriminate against women.

“A tax on tampons and sanitary pads is a tax on women,” the class action lawsuit states. The plaintiffs argue that the Department should be required to “return the many millions of dollars they took illegally at the expense of women’s health.”

According to the tampon tax class action lawsuit, the Department’s “Guide to Sales Tax for Drugstores and Pharmacies” indicates that feminine hygiene products such as tampons and sanitary napkins are subject to the state’s sales tax because their purpose is “to control a normal bodily function and maintain personal cleanliness.”

The plaintiffs disagree and assert that feminine hygiene products are not luxury items, but are essential to women’s health.

“Without access to tampons and sanitary pads, women are forced to use unsanitary and dirty rags—which can lead to infections and an increased risk of diseases such as cervical cancer—or have nothing at all to staunch the blood—which poses a risk to the health of women and the public,” the tampon tax class action lawsuit states.

Further, the plaintiffs point out that tampons and sanitary pads are classified as “medical devices” by the U.S. Food and Drug Administration.

The plaintiffs seek to represent a Class of women who live in the state of New York and who have paid sales tax on tampons and/or sanitary pads during the applicable statute of limitations period.

The plaintiffs are represented by Ilann Maazel, Matthew D. Brinkerhoff and Zoe Salzman of Emery Celli Brinkerhoff & Abady LLP.

The New York Tampon Tax Class Action Lawsuit is Margo Seibert, et al. v. The New York State Department of Taxation and Finance, in the Supreme Court of the State of New York, New York County.