SAN FRANCISCO – California has been taxing tampons and sanitary napkins for years, classifying them as “luxury” items, while labeling items like Viagra and Lubriderm lotion as” medical necessities. Now the court is being asked to change that classification.

California residents Nicolle Disimone and Stacy Stobo, along with Revenue Enterprise LLC, are fighting the tampon tax in California Superior Court, saying any woman will agree that tampons and sanitary napkins are not luxuries, but medical necessities.

“This is important litigation. Discriminatory taxation like this has no place in our country,” attorney for the plaintiffs Devon Lyon of Lyon Legal told the Northern California Record.

The complaint says the collection of sales tax on these products is the result of an era when women were considered unequal to men. It goes on to say that in addition to being discriminatory, it's unlawful because it violates the 14th amendment's equal protection clause.

“Feminine hygiene products should have never been taxed in the first place and this challenge to their taxation is long overdue. This lawsuit is especially relevant since the California governor vetoed the bill that would have eliminated the tax,” Lyon said.

The state is reluctant to eliminate it simply because it would reduce income taxes, she said. California raises about $20 million a year in taxes from feminine hygiene products. Women have no choice but to pay it since there is not an alternative, the complaint says.

California exempts medicine and medical devices from sales tax but excludes bandages or pads such as tampons and sanitary napkins from the exemption. In contrast, the U.S. Food and Drug Administration does define feminine hygiene products as medical devices, the complaint says. Even the California Board of State and Community Corrections recognizes feminine hygiene products need to be provided to female inmates, the complaints says.

The complaint goes even further to show the medical necessity of these items by saying these products help to protect women from endometriosis, a condition that can lead to infertility, according to Yale University medical researchers. It also says that when tampons and sanitary pads aren't available, there is an increased risk of cervical cancer in women.

Lyon said she hopes this case will lead to similar taxes across the country being eliminated. She noted that a similar case is unfolding in New York.

“We are hopeful this trend will catch on and abolish the taxation of necessary items that target a protected class (in this case, gender,)” she said.

The case has been filed against the state of California, the State Board of Equalization  that is responsible for collecting sales tax in California and its executive director, David Gau, and Gov. Edmund Brown Jr.

California was given an opportunity to eliminate the tax through the legislative process when a bill was introduced and approved by the state legislature, but it was vetoed by Brown on Sept. 13.

“This is not a tax issue, but a gender discrimination issue which needs to be rectified. Therefore, we feel this matter is appropriate for judicial intervention,” Lyon said.

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