Did the Arkansas AG approve the ballot title for an initiated act exempting feminine hygiene products and diapers from sales tax?
Plain-English summary
David Couch submitted a revised version of his proposed initiated act to exempt feminine hygiene products and diapers from sales and use tax. The earlier version (rejected in Op. 2023-084) had ambiguity around the Streamlined Sales and Use Tax Agreement compliance. The revised version addressed the substantive ambiguity. The AG certified the popular name as submitted and substituted a slightly clearer ballot title.
The substitution. The submitted ballot title was a single long sentence with awkward structure ("An act to exempt feminine hygiene products and children and adult diapers, including disposable diapers from sales and use tax effective January 1, 2025"). The AG's substitution restructured for clarity:
An act to create a sales and use tax exemption, effective January 1, 2025, for feminine hygiene products and diapers for children and adults, including disposable diapers. The act defines "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. The act defines a "diaper" as an absorbent garment worn by humans who are incapable of, or have difficulty, controlling their bladder or bowel movements.
Drafting issues flagged. The AG cannot edit the underlying text of a proposed initiated act (only the ballot title), but he flagged three issues for the sponsor's consideration:
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Streamlined Agreement compliance. The sponsor's definitions used some Streamlined Sales and Use Tax Agreement language but did not exactly mirror the agreement's text. The AG concluded the substance complies, so the issue is not a basis for rejection, but exact mirroring would prevent future questions about whether the act would pull Arkansas out of compliance.
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Grammatical errors. Two specific issues: subdivision (A) reads "Gross receipts or gross proceeds derived from the sale of a feminine hygiene products and diapers" (the article "a" should be removed); subdivision (D) uses a semicolon where a colon belongs after "2023."
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Improper subdivision numbering. The proposed measure used letters to label new exemption provisions in A.C.A. § 26-52-401, but that section uses numbers. The next number that should appear in § 26-52-401's exemption list is "(45)." The AG flagged this as a drafting issue but not a rejection ground.
Petition instructions. The AG attached a copy of the canvasser/signer instructions required by A.C.A. § 7-9-108, which must precede every petition before circulation.
This is the third opinion in the same chain (Op. 2023-084 rejected the original; this opinion certifies the revised version with substituted ballot title). The certification means Couch could begin collecting signatures.
What this means for you
Ballot initiative sponsors
This is what success looks like. The AG can substitute a ballot title (rather than reject the whole submission) when the underlying measure is substantively clear but the title's wording can be improved. Even when you get a substituted title, the AG may flag drafting issues for your future use. Consider those flags carefully: a future court challenge could turn on the same issues, even though they did not block certification.
The progression here also shows a useful playbook: rejection (Op. 2023-084) plus AG drafting feedback, then revision, then approval (this opinion). Treat rejection opinions as free editing input rather than as setbacks.
Tax policy advocates
The merits of the underlying tax exemption are not the AG's domain. But the procedural framework matters: a citizen-initiated tax exemption needs (a) substantive clarity in the text, (b) Streamlined Agreement compliance if Arkansas is to remain in the compact, and (c) proper drafting conventions. The AG's flags about Streamlined Agreement compliance and the subdivision numbering are useful checklist items for any future tax-exemption initiative.
Women's health advocates and parents
This is a substantive citizen initiative that, if it had collected sufficient signatures and passed at the ballot box, would have eliminated state sales and use tax on tampons, pads, menstrual cups, panty liners, and on diapers (children and adult, including disposable). The exemption was set to take effect January 1, 2025, which would have aligned with a calendar-year tax cycle.
This opinion does not enact the law; it certifies the ballot title for circulation. Whether the measure made the ballot, qualified for the election, and passed are separate questions outside this opinion. If you are tracking the policy outcome, look at the Secretary of State's election filings for the relevant cycle.
Civic organizers
The opinion is a model of how a good ballot title is structured. Note the elements the AG used in the substitution: a clear statement of what the act does (creates an exemption), an effective date, and definitions of any terms not commonly understood. This format reads cleanly in a 10-minute voting window, which is the statutory cap (see A.C.A. § 7-5-309(b)(1)(B)).
State legislators
If you want to align Arkansas's tax exemption with the Streamlined Agreement, consider that the General Assembly tried this in HB 1065 of 2021 (mentioned in the opinion), which used the agreement's exact definitions. A future legislative effort could mirror that approach to avoid the agreement-compliance ambiguity that this initiated act flirted with.
Common questions
The AG approved the ballot title. Does that mean the law passed?
No. The AG's certification only authorizes the sponsor to circulate the petition. The sponsor must still collect enough valid signatures (a percentage of the votes cast for governor at the last election) and have the measure placed on the ballot. Voters then approve or reject.
What's the Streamlined Agreement and why does it matter?
The Streamlined Sales and Use Tax Agreement is a multi-state compact aimed at simplifying sales tax administration. Arkansas is a full member. The agreement requires member states to use uniform definitions of products that get exempted from sales tax. If Arkansas creates an exemption with non-conforming definitions, the state could lose compact membership, which has practical consequences for retailer compliance and revenue.
The AG flagged drafting errors but still certified. Can the law pass with errors in it?
Yes, technically. The AG's role is to certify the ballot title, not to fix the underlying text. If voters approve the measure, the act passes with the errors intact. The General Assembly or the Code Revision Commission would have to clean up the language afterward, or a court could interpret around the errors. But sponsors can also withdraw, fix the text, and resubmit before circulation; the AG explicitly invited that here.
What's a "diaper" under the substituted ballot title?
The ballot title (and the proposed act) defines "diaper" as "an absorbent garment worn by humans who are incapable of, or have difficulty, controlling their bladder or bowel movements." That covers infant diapers, training pants, and adult incontinence products.
Did the diaper provision originate as a separate proposal?
Possibly. The history in this opinion suggests the original proposal (Op. 2023-084) covered only feminine hygiene products. The revised proposal added diapers. Sponsors often expand the scope between rejected and approved versions to reflect drafting feedback.
Background and statutory framework
A.C.A. § 7-9-107 controls AG ballot-title review. Subsection (d)(1) gives the AG authority to "substitute and certify a more suitable and correct ballot title" rather than reject. That is what happened here.
The substantive context involves A.C.A. § 26-52-401 (Arkansas's Gross Receipts Tax Act exemption list) and A.C.A. § 26-20-106(c) (Streamlined Sales and Use Tax Agreement compliance). Acts 2003, No. 1273 made Arkansas a Streamlined Agreement member. The AG flagged that two 2023 acts (Acts 518 and 827) had both added new exemptions to § 26-52-401 with the label "(43)," meaning the Code Revision Commission would relabel one of them as "(44)" and the next exemption (whether from this initiated act or another source) would be "(45)."
A.C.A. § 7-9-108 requires petition forms to include canvasser and signer instructions before circulation. The AG attached a copy of those instructions to the opinion.
Citations
- A.C.A. § 7-9-107 (Attorney General review of initiated acts)
- A.C.A. § 7-9-107(d)(1) (substitute and certify a more suitable ballot title)
- A.C.A. § 7-9-108 (canvasser and signer instructions)
- A.C.A. § 26-52-401 (Arkansas sales tax exemptions)
- A.C.A. § 26-20-106(c) (Streamlined Sales and Use Tax Agreement compliance)
- Acts 2003, No. 1273 (Arkansas adoption of Streamlined Agreement)
- Acts 2023, Nos. 518 and 827 (recent additions to § 26-52-401 exemption list)
- Streamlined Sales and Use Tax Agreement, Article III, § 316
- Streamlined Sales and Use Tax Agreement, Appendix C, Library of Definitions, Part II
- Ark. Att'y Gen. Op. 2023-084 (prior rejection)
Source
Original opinion text
Opinion No. 2023-092
October 10, 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 and Diapers from Sales and Use Tax
Ballot Title
An act to exempt feminine hygiene products and children and adult diapers,
including disposable diapers from sales and use tax effective January 1, 2025.
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. Defining "diapers" as an
absorbent garment worn by humans who are incapable of, or have difficulty,
controlling their bladder or bowel movements.
2. Rules governing my review. In Attorney General Opinion 2023-084, issued in response to your
previous request for review and certification, I articulated the rules and standards that govern this
process. I rely on those same rules and standards here, and I incorporate that analysis into this
opinion.
3. Application. Having reviewed the text of your proposed initiated act, as well as your proposed
popular name and ballot title, I have concluded that your proposed popular name is not misleading.
It is therefore approved as submitted. With regard to the ballot title, I believe several minor changes
are necessary to make the ballot title "more suitable and correct." The following ballot title is
substituted and certified to ensure that it clearly and accurately sets forth the purpose of the
proposed initiated act:
Ballot Title
An act to create a sales and use tax exemption, effective January 1, 2025, for
feminine hygiene products and diapers for children and adults, including disposable
diapers. The act defines "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. The
act defines a "diaper" as an absorbent garment worn by humans who are incapable
of, or have difficulty, controlling their bladder or bowel movements.
Although I have certified your popular name as submitted and your ballot title as substituted, I
have identified several issues in the text of your proposed initiated act:
- Streamline definitions. In Attorney General Opinion 2023-084, I suggested that if
your intention is for Arkansas to remain compliant with the Streamlined Sales and
Use Tax Agreement, the definitions in your proposed initiated act should mirror
those found in the Streamlined Agreement ("Streamlined Agreement"). Although
the revised text of your proposed initiated act uses some of the Streamlined
Agreement's language, you have not replicated the exact text. But because the
substance of your proposed initiated act complies with the Streamlined Agreement,
there is no longer ambiguity about the measure's intent and, therefore, no basis to
reject your submission or modify the ballot title in this regard.
- Grammatical errors. The text of your proposed measure contains two
grammatical errors. First, the subdivision labeled "(A)" states, "Gross receipts or
gross proceeds derived from the sale of a feminine hygiene products and diapers,
children and adult, including disposable diapers." The article "a" should be
removed from this sentence. Second, the subdivision labeled "(D)" should use a
colon instead of a semicolon after "2023."
- Improper numbering. You have used letters to label the provisions that your
proposed measure seeks to add to A.C.A. § 26-52-401, even though that statute uses
numbers to list its exempt items. The next number that should appear alongside any
new exemption in § 25-16-401's list is "(45)." Your proposed initiated act should
ideally use the same organization and numbering of the statute it seeks to amend,
but this is not a reason to reject your submission.
As I explained in Attorney General Opinion 2023-084, A.C.A. § 7-9-107 does not authorize me to
correct errors in the text of a proposed measure, only to substitute and certify a different popular
name and ballot title. Because none of the deficiencies in your text are ambiguous or misleading,
they are not grounds to reject your submission. But I have flagged them here in case you wish you
to correct these errors and resubmit your popular name and ballot title with the revised text for my
review and certification.
Under A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition,
informing them of the privileges granted by the Arkansas Constitution and the associated penalties
for violations. I have included a copy of the instructions that should be incorporated into your
petition before circulation.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General