Did the Arkansas AG approve a ballot measure to exempt feminine hygiene products and diapers from state sales and use tax?

Plain-English summary

David Couch submitted a proposed initiated act to exempt feminine hygiene products and diapers from Arkansas sales and use tax effective January 1, 2027. The AG certified its popular name as submitted. He made minor changes to the ballot title and certified the substituted wording. He said the certification decision was unrelated to his view of the measure's merits.

The AG also identified three drafting issues in the measure's text. Its definitions used some wording from the Streamlined Sales and Use Tax Agreement but did not reproduce that wording exactly. The AG said the measure's substance complies with the Agreement, so the variation created no ambiguity about its intent and was no ground for rejection or a title change. He also identified two grammatical errors and said the proposed additions to A.C.A. § 26-52-401 should follow that statute's numbered format rather than use letters.

The AG could substitute a popular name or title, but could not edit the measure itself. He flagged these textual points in case the sponsor wanted to correct and resubmit. The opinion does not say that the wording threatened Arkansas's Agreement compliance, that a legislature would need to repair it, or that the act reached or passed an election.

What this means for you

Petition sponsors and canvassers

The opinion supplies the certified popular name and ballot title for this submitted measure. The AG said any changes to the measure's own text would require a revised submission for review. He also reminded the sponsor that instructions to canvassers and signers under A.C.A. § 7-9-108 must precede each petition; the instructions enclosed with the opinion might be revised in 2025.

Voters and retailers

The proposal described in the certified title would exempt feminine hygiene products and diapers for children and adults, including disposable diapers, effective January 1, 2027. That date is part of the proposal. Certification of wording does not establish that the exemption became law. The AG did not evaluate whether the policy was desirable.

Legislators and tax analysts

The AG's Streamlined Agreement point is a drafting recommendation, not a finding of noncompliance. He expressly stated that the proposed act's substance complies with the Agreement. The opinion identifies the wording difference, two grammatical errors, and numbering mismatch, but predicts no legislative cleanup obligation.

Common questions

Did the AG certify the proposal?
He certified the popular name as submitted and a substituted ballot title. His authority in this review concerned the name and title, not the measure's merits or later election result.

Why was the ballot title changed?
The AG said several minor changes would make it "more suitable and correct" and better express the proposed act's purpose. The substituted title describes the exemption, January 1, 2027 effective date, and definitions of covered products.

Did the AG find a Streamlined Agreement violation?
No. He said the act's definitions did not replicate the Agreement's exact language but that "the substance of your proposed initiated act complies with the Streamlined Agreement." He saw no ambiguity that would justify rejection or a title modification on this point.

What other textual errors did the AG identify?
He said to remove an extra "a" before "feminine hygiene products," use a colon rather than a semicolon after "2024" in subdivision (C), and number the new exemption consistently with the list in A.C.A. § 26-52-401. He did not treat these as grounds to reject the submission.

Could the AG make those changes himself?
No. The opinion says A.C.A. § 7-9-107 permits him to substitute and certify a popular name or ballot title, but not to correct the proposed measure's text. The sponsor could revise the text and resubmit it.

Source

• Official Arkansas Attorney General opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2024-068, July 18, 2024; official three-page PDF, including footnotes)

Original opinion text

Opinion No. 2024-068
July 18, 2024
David A. Couch
Attorney at Law
Post Office Box 7530
Little Rock, Arkansas 72217
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, 2027.
   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 of an earlier version of this popular name and ballot title, 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. David A. Couch Attorney at Law Opinion No. 2024-068 Page 2

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.”1 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, 2027, 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 note that the same textual issues I flagged in Attorney General Opinion 2023-092 appear in this submission as well:

• Streamline definitions. In Attorney General Opinions 2023-084 and 2023-092, 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”).2 Although the current text of your proposed initiated act uses some of the Streamlined Agreement’s language, you have not replicated the exact text.3 But because the substance of your proposed initiated act complies with the Streamlined Agreement, there is no 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

1
A.C.A. § 7-9-107(d)(1).
2
As explained in those opinions, the Streamlined Agreement is a compact among states that “focuses on improving sales and use tax administration systems for all sellers and for all types of commerce….” Acts 2003, No. 1273, § 1(b). Arkansas is a full member of the Streamlined Agreement. 3 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.” Streamlined Agreement, Appendix C, Library of Definitions, Part II. Nowhere does your proposed initiated act mention “grooming and hygiene products,” but it does take the Streamlined Agreement’s definition of that term and specify that the items in that definition are not “feminine hygiene products.” David A. Couch Attorney at Law Opinion No. 2024-068 Page 3

removed from this sentence. Second, the subdivision labeled “(C)” should use a colon instead of a semicolon after “2024.”

• 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 Opinions 2023-084 and 2023-092, 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. And 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 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 current instructions to canvassers and signers that should be incorporated into petitions before circulation. Please note, however, that these instructions may be revised in 2025 to incorporate any relevant legislative changes.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General