Were the milk-free soy infant formulas ProSobee and Isomil exempt food products?

Plain-English summary

The supporting PDF contains two official letters about milk-free soy infant formula.

In 1965, counsel classified ProSobee—a hypoallergenic baby formula made from soybeans with soy isolate—as exempt food under section 6359 and former Ruling 52.

In 1990, another requester challenged a retailer's tax charge on Isomil. Its label said it was for milk-free infant feeding and could be used for special feeding needs, to supplement breast milk, or for routine feeding. Regulation 1602(a)(1) specifically included baby foods, and the Board's earlier infant-formula authorities supported exemption.

Counsel concluded that Isomil, like ProSobee, was an exempt milk-free soy infant formula. The Board also said it would contact the retailer through its district office.

The official annotation states both conclusions but retains the 1965 date. Because the combined source incorporates the later Isomil analysis, this page uses March 22, 1990 and explains both dates.

Common questions

Were only milk-based infant formulas exempt?

No. Both ProSobee and Isomil were milk-free soy formulas and were exempt.

Could Isomil be used for routine feeding?

Yes. Its label also described special feeding and breast-milk supplementation.

Why is the page dated 1990 when the annotation shows 1965?

The PDF combines the 1965 ProSobee letter with a 1990 Isomil letter. The later letter supplies part of the combined published conclusion.

Citations and references

• California Revenue and Taxation Code sections 6051 and 6359, including subdivision (a) (as cited)
• California Sales and Use Tax Regulation 1602(a)(1) (as cited)
• Historical California Sales Tax Ruling 52 (as cited in the 1965 ProSobee letter)
• California Sales and Use Tax Annotations 245.0040 (8/5/60) and 245.0940 (12/14/65) (as cited in the 1990 Isomil letter)
• Redacted requester's December 8, 1965 letter and submitted information concerning ProSobee — referenced; neither reproduced in the official PDF
• ProSobee hypo-allergenic milk-free soybean formula with soy isolate and no vegetable glactogens — source-printed glactogens form preserved; formula, ingredient specifications, labels, package, sample, tests, physician materials, invoices, and sales records not reproduced in the official PDF
• Second redacted requester's March 6, 1990 letter challenging a retailer's infant-formula tax charge and submitted Isomil can label — request and label described; neither reproduced in the official PDF
• Isomil milk-free soy infant formula label, ingredients, special feeding, breast-milk supplementation, routine feeding, and possible physician specification — facts described; formula, complete ingredient specifications, label copy, can, sample, physician materials, invoices, and sales records not reproduced in the official PDF
• Copy promised to the Sacramento District Administrator for contact with the retailer — action stated; copy, contact record, retailer response, and implementation record not reproduced in the official PDF
• Combined December 14, 1965 ProSobee letter and March 22, 1990 Isomil letter published under one annotation PDF — current annotation retains the 1965 date while stating both results
• Possible later product sale, audit, assessment, refund claim, appeal, or other agency action — no further follow-up or final outcome supplied in the official PDF

Source

• Annotated Legal Opinions collection: https://cdtfa.ca.gov/taxes-and-fees/annotations-menu.htm
• Annotation page: https://cdtfa.ca.gov/lawguides/vol2/suta/245-0000-all.html
• Original supporting opinion: https://cdtfa.ca.gov/lawguides/annotations/245-0940.pdf

Original ruling text

245.0940

STATE OF CALIFORNIA

STATE BOARD OF EQUALIZATION
PO BOX 942879, SACRAMENTO, CALIFORNIA 94279-0001
TELEPHONE (916) 445-6450

December 14, 1965

Gentlemen:
This is in regard to your letter of December 8 regarding ProSobee milk-free formula with soy isolate. From the information which you have submitted, it is our understanding that ProSobee is a hypoallergenic baby formula made from soybeans containing no vegetable glactogens. In our opinion it qualifies as a food product under Section 6359 of the Revenue and Taxation Code and sales tax Ruling 52. Very truly yours,

George A. Trigueros
Associate Tax Counsel
GAT:md

[1b]

245.0940

STATE OF CALIFORNIA

STATE BOARD OF EQUALIZATION
PO BOX 942879, SACRAMENTO, CALIFORNIA 94279-0001
TELEPHONE (916) 324-3828

March 22, 1990

Ms. [Y]
XXXX --- ----- ---, California XXXXX
Re:

Baby Formulas - - Taxable or Exempt?

Dear Mrs. [Y]:
On behalf of the staff of the State Board of Equalization, I am responding to your letter of March 6, 1990 wherein you state that [K] should not be charging sales tax on infant formula. You also sent us a label from a can of Isomil formula. Although California Revenue and Taxation Code 6051 imposes an obligation on retailers to pay sales tax on all sales of tangible personal property, Section 6359 of the same code provides an exemption for sales of food products. Section 6359(a) states: “There are exempted from the taxes imposed by this part, the gross receipts from the sale of and the storage, use, or other consumption in this state of food products for human consumption. Sales and Use Tax Regulation 1602(a)(1) on Food Products provides in relevant part: “‘Food products’ include … baby foods ….” You have provided us with a label from a can of Isomil. In bright red letters on the front label, it says: “For milk-free feeding.” On the back label it states: “Isomil is formulated for infant feeding and may be specified by your physician for special feeding needs, as a supplement to breast milk, or for routine feeding….” Furthermore, Sales and Use Tax Annotation 245.0040 (8/5/60) exempts as food products Similac and other infant formulas. Although Similac and the other formulas were exempted because they were milk products, the Board’s legal staff at Sales and Use Tax Annotation 245.0940 (12/14/65) also exempted as a food product, Pro-Sobee. Pro-Sobee was a milk-free formula made with soy isolate.

Ms. Debra S. Young

-2-

March 22, 1990
245.0940

The ingredients on the label of Isomil that you have provided indicate that Isomil is also a milk-free, soy, infant formula. In our opinion, Isomil qualifies as a food product under Section 6359 of the Sales and Use Tax Law. Therefore, sales of Isomil by [K] are exempt from sales tax. We will be sending a copy of this letter to the District Administrator of our Sacramento District office so that he may contact [K]. Thank you for bringing this matter to our attention. Sincerely,

Don P. Chairez
Tax Counsel
DPC:cl