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 titled "An Act to Exempt Feminine Hygiene Products and Diapers from Sales and Use Tax" to the Attorney General for the certification required before petition circulation. The proposed act would exempt tampons, panty liners, menstrual cups, sanitary napkins, and diapers (including disposable diapers for both children and adults) from state sales and use tax effective January 1, 2027.
Attorney General Tim Griffin certified the popular name as submitted, finding it not misleading. He substituted his own version of the ballot title to make it "more suitable and correct" (mainly cleaner sentence structure and clearer flow), then certified the substituted version.
The AG flagged three issues in the underlying text that he could not fix himself (he can only substitute the popular name and ballot title, not the substantive text):
- Streamlined Sales Tax Agreement language. Arkansas is a full member of the Streamlined Agreement, a multistate compact. The proposal's definitions track the Streamlined Agreement's language but do not match it exactly. The AG found this not misleading enough to reject, but recommended a verbatim match if compliance with the compact is the sponsor's goal.
- Two grammatical errors. Subdivision (A) used "a feminine hygiene products" (article mismatch) and subdivision (C) used a semicolon where it should use a colon.
- Improper subdivision lettering. The proposal used letters where § 26-52-401 already uses numbers; the next available number would be (45).
The AG flagged these so the sponsor can correct them and resubmit if desired. Otherwise, with the certification in hand, sponsors may begin signature collection.
What this means for you
If you are a ballot-measure sponsor or organizer
Use the substituted ballot title from the opinion verbatim on petition forms, not your originally submitted draft. Mismatch between the certified language and what appears on the petition can sink the signatures.
The AG's three flagged textual issues are non-fatal but worth fixing. If the Streamlined Sales Tax Agreement compliance matters (and it does, since Arkansas is a full member), match the compact's exact definitions. Otherwise the legislature may need to clean up the language post-passage to keep Arkansas in compliance with the multistate compact.
If you are an Arkansas retailer or accountant
Watch this measure. If it qualifies for the ballot and passes, your point-of-sale system will need to reclassify the listed feminine hygiene products and diapers (children's and adults', including disposables) as exempt effective January 1, 2027. The product list in the proposed act and ballot title is specific.
If you are a voter
The proposal is part of the broader "tampon tax" repeal movement that has appeared in many states. If certified to the ballot, you would vote on whether to remove state sales and use tax from menstrual products and diapers. The AG is not opining on whether the policy is good or bad; certification only addresses whether the popular name and ballot title are accurate.
If you are a state legislator
The textual flaws in this initiated act, particularly the Streamlined Sales Tax Agreement compliance gap and the wrong subdivision numbering, would create cleanup work for the legislature if the measure passes. A legislative path could pre-empt the initiative by enacting a clean version directly.
Common questions
Q: Why did the AG keep my popular name but rewrite the ballot title?
A: The AG certified the popular name as not misleading. He has authority under A.C.A. § 7-9-107(d)(1) to substitute the ballot title to make it "more suitable and correct." Here, that mostly meant tightening sentence flow rather than changing meaning.
Q: What is the Streamlined Sales and Use Tax Agreement?
A: A multistate compact that aims to standardize sales-tax administration across member states. Arkansas became a full member through Act 1273 of 2003. Definitions in member states must mirror the compact's library of definitions. The proposal's near-but-not-exact match could create a Streamlined Agreement compliance issue.
Q: Should I redraft and resubmit to fix the textual issues?
A: Optional. The AG certified despite the flaws because they are not ambiguous or misleading enough to require rejection. If you want a cleaner version of the act itself (which the legislature would not have to fix later), you can redraft and resubmit for re-certification. That restarts the process.
Q: When could this be on the ballot?
A: Sponsors must collect a constitutionally required number of signatures from qualified voters by the statutory deadline. If they hit those numbers, the Secretary of State certifies it for the next general election ballot.
Q: Are infant diapers and adult diapers both covered?
A: Yes. The substituted ballot title and the act's definition of "diaper" cover "an absorbent garment worn by humans who are incapable of, or have difficulty, controlling their bladder or bowel movements." That includes children's, adults', disposable, and reusable.
Background and statutory framework
A.C.A. § 7-9-107 is the AG's gateway authority for citizen-initiated ballot measures. The AG can:
- Certify the popular name and ballot title as submitted.
- Substitute and certify the AG's own version under § 7-9-107(d)(1) when changes would make the text "more suitable and correct."
- Reject and require redesign.
Arkansas Code § 26-52-401 lists sales-tax exemptions. The proposed act would add the new feminine hygiene products and diaper exemption to that list. The act includes its own internal definitions and an effective date of January 1, 2027.
The Streamlined Sales and Use Tax Agreement, joined by Arkansas in Act 1273 of 2003, is a multistate compact that requires member states to use uniform definitions in their sales tax codes. The proposal uses substantially similar but not verbatim Streamlined definitions, which the AG flagged.
A.C.A. § 7-9-108 separately requires that canvasser and signer instructions appear on every petition, informing them of constitutional privileges and penalties.
Citations and references
Statutes:
- A.C.A. § 7-9-107 (review and certification of popular names and ballot titles)
- A.C.A. § 7-9-108 (instructions to canvassers and signers)
- A.C.A. § 26-52-401 (sales tax exemptions list)
- Act 1273 of 2003 (Arkansas Streamlined Sales and Use Tax Agreement compliance)
Prior AG opinions referenced:
- Ark. Att'y Gen. Op. 2023-084 (rules governing review of popular names and ballot titles, earlier feminine hygiene/diapers draft)
- Ark. Att'y Gen. Op. 2023-092 (subsequent draft with same textual issues flagged)
Source
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. 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, 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:
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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. Although the current 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 ambiguity about the measure's intent and, therefore, no basis to reject your submission or modify the ballot title in this regard.
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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 "(C)" should use a colon instead of a semicolon after "2024."
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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