Why did the Arkansas AG reject a proposed ballot title for an initiated act exempting feminine hygiene products from sales tax?
Plain-English summary
David Couch submitted a proposed initiated act to exempt feminine hygiene products from Arkansas sales and use tax, effective January 1, 2024. The popular name and ballot title used the same language. The AG rejected the submission, but for a substantive ambiguity in the underlying text rather than a drafting failure.
The Streamlined Sales and Use Tax Agreement issue. Arkansas is a full member of the Streamlined Sales and Use Tax Agreement, a multi-state compact aimed at simplifying sales-tax administration. Member states must use uniform definitions of the products they choose to exempt. The agreement defines "feminine hygiene products" to mean "tampons, panty liners, menstrual cups, sanitary napkins, and other similar tangible personal property designed for feminine hygiene in connection with the human menstrual cycle, but does not include 'grooming and hygiene products' as defined in this Agreement." "Grooming and hygiene products" are then defined to mean soaps, shampoo, toothpaste, mouthwash, antiperspirants, sun tan lotion and screens.
Couch's proposed definition mirrored the first half of the agreement's definition but omitted the exclusion for "grooming and hygiene products." That created an ambiguity: did Couch intend to include grooming and hygiene products in the exemption (which would pull Arkansas out of Streamlined Agreement compliance), or did he intend to track the agreement (in which case the exclusion needed to appear)?
The AG noted that Couch had said he modeled his proposal after HB 1065 of 2021, which used the agreement's exact definitions. So the most likely reading was that Couch intended to comply with the agreement and the missing exclusion was an oversight. But the AG cannot rewrite the text of a proposed initiated act, only the ballot title. So the proper move was to reject and instruct Couch to redesign.
Why this is a procedural opinion. The AG laid out the standard framework for ballot-title review (the same framework appears in many AG opinions on initiated acts):
- Popular name: a useful legislative device; need not contain detail; cannot be misleading or partisan; read together with the ballot title for sufficiency.
- Ballot title: must impartially summarize the measure and give voters a fair understanding; cannot use technical terms that are not defined or readily understood; cannot omit "essential facts" that would give the voter "serious ground for reflection"; must be brief enough to fit the 10-minute statutory voting window; must be free from misleading tendency by amplification, omission, or fallacy; cannot be tinged with partisan coloring; must convey "an intelligible idea of the scope and significance of a proposed change in the law."
The AG cannot rewrite the underlying measure. If text ambiguities prevent the AG from confirming that any ballot title would accurately summarize the measure, the AG must reject. Couch eventually returned with a revised proposal (in Op. 2023-092, the AG approved with substituted ballot title).
What this means for you
Ballot initiative sponsors
Two takeaways from this rejection:
-
Substantive ambiguity in your text gets the whole submission rejected, even when the popular name and ballot title are otherwise fine. The AG must be able to confirm the measure does what it says. If terminology is ambiguous, the AG cannot certify any ballot title that summarizes the measure accurately.
-
Use exact statutory or compact language when you mean to comply with an existing framework. If your proposal is meant to track the Streamlined Sales and Use Tax Agreement (or any other compact, model code, or existing statute), use the source's exact definitions. The cost of paraphrasing is exactly what happened here: a rejection because the deviation could be read as substantive.
Tax policy advocates
The opinion is a reminder that any state-level tax exemption interacts with the Streamlined Agreement. Arkansas has been a full member since 2003 (Acts 2003, No. 1273). Initiatives that affect sales tax need to consider compact compliance, not just Arkansas Code amendments.
Civic organizers
When you help draft a citizen initiative, build a check against existing model laws and compacts. Even small wording differences can be the difference between certification and rejection.
Women's health advocates
This rejection did not end the underlying initiative; the sponsor revised and got approved in Op. 2023-092 (with diapers added). The substantive policy goal (sales-tax exemption for menstrual products) was achievable; the rejection was about precision.
State legislators
If you want a state-level menstrual-products tax exemption to be uncontroversial under the Streamlined Agreement, draft it the way HB 1065 of 2021 did, with the agreement's exact definitions of both "feminine hygiene products" and "grooming and hygiene products." That bill drafting approach saves AG-rejection cycles.
Law students
This opinion is a clean illustration of the difference between rejection for ballot-title problems (Op. 2023-098 antique tags) and rejection for substantive ambiguity in the underlying measure. The two problems have different causes and require different fixes.
Common questions
The popular name and ballot title looked fine. Why was the whole thing rejected?
Because the AG cannot certify a ballot title that purports to summarize an ambiguous measure. If the underlying text could mean two different things, no summary is "accurate" until the ambiguity is resolved.
What's the Streamlined Sales and Use Tax Agreement?
A multi-state compact (signed by Arkansas in 2003) aimed at simplifying sales-tax administration across states. It requires uniform product definitions when states create exemptions. Arkansas's compliance is governed by A.C.A. § 26-20-106(c).
Could the AG have just substituted a corrected ballot title?
No. § 7-9-107(d)(1) lets the AG substitute a more suitable ballot title, but only if the underlying measure is itself clear. When the measure is ambiguous, the AG must reject under § 7-9-107(e), not substitute.
Did the sponsor eventually get approval?
Yes. Op. 2023-092 approved the revised version with a substituted ballot title. The revised version expanded scope to add diapers and addressed the agreement-compliance ambiguity.
What if I disagree with the AG's reading and think my text is unambiguous?
You can resubmit without changes and ask the AG to reconsider, or you can challenge the rejection in court. Practically, redrafting to eliminate the ambiguity is faster.
Does the agreement's definition limit me from creating broader exemptions?
The agreement requires you to use the agreement's product definition if you exempt that product. You can still create exemptions for products outside the agreement's library; you just can't redefine an existing library term.
Background and statutory framework
A.C.A. § 7-9-107 governs AG ballot-title review. The three response options are in subsections (d)(1) (approve or substitute) and (e) (reject and instruct). Required elements of a sufficient ballot title are developed in Arkansas Supreme Court precedent: Pafford v. Hall (1950), Chaney v. Bryant (1976), Moore v. Hall (1958), May v. Daniels (2004), Becker v. Riviere (1980), Wilson v. Martin (2016), Cox v. Daniels (2008), Bailey v. McCuen (1994), Plugge v. McCuen (1992), Shepard v. McDonald (1934), Becker v. McCuen (1990), Christian Civic Action Committee v. McCuen (1994), and Roberts v. Priest (2000). All Arkansas Supreme Court decisions.
The Streamlined Sales and Use Tax Agreement is a compact described in South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2100 (2018) (a U.S. Supreme Court case): "It requires a single, state level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules." Arkansas joined by Acts 2003, No. 1273. A.C.A. § 26-20-106(c) authorizes Arkansas to develop and adopt uniform definitions consistent with the agreement.
The statutory voting time limit (10 minutes) in A.C.A. § 7-5-309(b)(1)(B) practically constrains ballot title length.
Citations
- A.C.A. § 7-9-107 (AG review of initiated acts)
- A.C.A. § 7-9-107(a) (sponsor submission)
- A.C.A. § 7-9-107(b) (definition of original draft)
- A.C.A. § 7-9-107(d)(1) (approve or substitute)
- A.C.A. § 7-9-107(d)(2) (brief and concise requirement)
- A.C.A. § 7-9-107(e) (reject and instruct)
- A.C.A. § 7-5-309(b)(1)(B) (10-minute voting limit)
- A.C.A. § 26-20-106(c) (Streamlined Agreement compliance authorization)
- Acts 2003, No. 1273 (Arkansas adoption of Streamlined Agreement)
- Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950)
- Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976)
- Moore v. Hall, 229 Ark. 411, 414–15, 316 S.W.2d 207, 208–09 (1958)
- May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004)
- Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980)
- Wilson v. Martin, 2016 Ark. 334, *9, 500 S.W.3d 160, 167
- Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008)
- Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994)
- Plugge v. McCuen, 310 Ark. 654, 658, 841 S.W.2d 139, 141 (1992)
- Shepard v. McDonald, 189 Ark. 29, 70 S.W.2d 566 (1934)
- Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990)
- Christian Civic Action Committee v. McCuen, 318 Ark. 241, 250, 884 S.W.2d 605, 610 (1994)
- Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000)
- South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2100 (2018)
- Streamlined Sales and Use Tax Agreement, Article III, § 316
- Streamlined Sales and Use Tax Agreement, Appendix C, Library of Definitions, Part II
Source
Original opinion text
Opinion No. 2023-084
September 25, 2023
David A. Couch
Attorney at Law
1501 North University Avenue, Suite 219
Little Rock, Arkansas 72207
Dear Mr. Couch:
I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the popular
name and ballot title for a proposed initiated act.
My decision to certify or reject a popular name and ballot title is unrelated to my view of the
proposed measure's merits. I am not authorized to consider the measure's merits when considering
certification.
1. Request. Under A.C.A. § 7-9-107, you have asked me to certify the following popular name
and ballot title for a proposed initiated act:
Popular Name
An Act to Exempt Feminine Hygiene Products from Sales and Use Tax
Ballot Title
An act to exempt feminine hygiene products from sales and use tax effective
January 1, 2024. Defining "feminine hygiene products" as tampons, panty liners,
menstrual cups, sanitary napkins, and other similar tangible personal property
designed for feminine hygiene in connection with the human menstrual cycle.
2. Rules governing my review. Arkansas law requires sponsors of statewide initiated measures to
"submit the original draft" of the measure to the Attorney General. An "original draft" includes
the full text of the proposed measure along with its ballot title and popular name. Within ten
business days of receiving the sponsor's original draft, the Attorney General must respond in one
of three ways:
- First, the Attorney General may approve and certify the ballot title and popular name in the
form they were submitted.
- Second, the Attorney General may "substitute and certify a more suitable and correct ballot
title and popular name."
- Third, the Attorney General may reject both the popular name and ballot title "and state his
or her reasons therefor and instruct" the sponsors to "redesign the proposed measure and
the ballot title and popular name." This response is permitted when, after reviewing the
proposed measure, the Attorney General determines that "the ballot title or the nature of
the issue" is (1) "presented in such manner" that the ballot title would be misleading or (2)
"designed in such manner" that a vote for or against the issue would actually be a vote for
the outcome opposite of what the voter intends.
3. Rules governing the popular name. The popular name is primarily a useful legislative
device. While it need not contain detailed information or include exceptions that might be
required of a ballot title, the popular name must not be misleading or partisan. And it must be
considered together with the ballot title in determining the ballot title's sufficiency.
4. Rules governing the ballot title. The ballot title must summarize the proposed act. The Court
has developed general rules for what must be included in the summary and how that information
must be presented. Sponsors must ensure their ballot titles impartially summarize the measure's
text and give voters a fair understanding of the issues presented. The Court has also disapproved
the use of terms that are "technical and not readily understood by voters." Ballot titles that do
not define such terms may be deemed insufficient.
Additionally, sponsors cannot omit material from the ballot title that qualifies as an "essential fact
which would give the voter serious ground for reflection." Yet the ballot title must also be brief
and concise lest voters exceed the statutory time allowed to mark a ballot. The ballot title is not
required to be perfect, nor is it reasonable to expect the title to address every possible legal
argument the proposed measure might evoke. The title, however, must be free from any
misleading tendency, whether by amplification, omission, or fallacy, and it must not be tinged
with partisan coloring. The ballot title must be honest and impartial, and it must convey an
intelligible idea of the scope and significance of a proposed change in the law.
Finally, the Court has held that a ballot title cannot be approved if the text of the proposed measure
itself contributes to confusion and disconnect between the language in the popular name and the
ballot title and the language in the measure. Where the effects of a proposed measure on current
law are unclear or ambiguous, I am unable to ensure the popular name and ballot title accurately
reflect the proposal's contents until the sponsor clarifies or removes the ambiguities in the proposal
itself.
4. Application. Having reviewed the text of your proposed initiated act, as well as your proposed
popular name and ballot title, I have concluded that I must reject your proposed popular name and
ballot title due to ambiguities in the text of your proposal. I cannot determine whether your popular
name and ballot title fully and correctly summarize your proposal until the ambiguities in the text
of the proposal itself have been resolved.
Specifically, the text of your proposed measure is ambiguous because it fails to address whether
the measure would remove Arkansas from compliance with the Streamlined Sales and Use Tax
Agreement ("Streamlined Agreement"). The Streamlined Agreement allows member states to
enact product-based tax exemptions if the member state defines the products in a manner that is
consistent with the product's definition in Part II of the Library of Definitions in the Streamlined
Agreement.
The term "feminine hygiene products" is defined in the Streamlined Agreement as "tampons, panty
liners, menstrual cups, sanitary napkins, and other similar tangible personal property designed for
feminine hygiene in connection with the human menstrual cycle, but does not include 'grooming
and hygiene products' as defined in this Agreement." The Streamlined Agreement further defines
"grooming and hygiene products" as "soaps and cleaning solutions, shampoo, toothpaste,
mouthwash, antiperspirants, and sun tan lotions and screens, regardless of whether the items meet
the definition of 'over-the-counter-drugs.'"
While your proposed measure's definition of "feminine hygiene products" mirrors the first part of
the Streamlined Agreement's definition, it does not include the definition's clause excluding
"grooming and hygiene products" from the term "feminine hygiene products." This difference
between your proposed definition and the product definition under the Streamlined Agreement
raises the question whether your proposed measure means to include "grooming and hygiene
products", thereby removing Arkansas from compliance with the compact, or whether you mean
for Arkansas to remain compliant with the Streamlined Agreement, in which case your definition
should mirror the product definition found in the Streamlined Agreement.
Without clarifying this issue in your proposed text, I am unable to ensure your popular name and
ballot title adequately summarize your proposal. And because A.C.A. § 7-9-107 only grants me
the authority to substitute and certify a different popular name and ballot title, not to edit the text
of the proposed measure itself, my statutory duty under these circumstances is to reject your
proposed popular name and ballot title, stating my reasons therefor, and to instruct you to
"redesign" the proposed measure, popular name, and ballot title.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General