Were retail sales of Juice Plus+ Thins tablets exempt as food when the product was labeled a dietary supplement and lacked complete-dietary-food evidence?

Plain-English summary

Juice Plus+ Thins came in apple-cinnamon and chocolate-nougat tablets. Its instructions called it a dietary supplement and recommended chewing two tablets before meals with water.

Regulation 1602(a)(5) excluded products in tablet and other listed forms when their labels described them as food or dietary supplements or adjuncts, or when they were designed to change vitamin, protein, mineral, or caloric intake.

A complete dietary food could escape that exclusion if its recommended daily dosage provided substantial protein, calories, vitamins, and minerals. The seller, however, supplied no information about the tablets' vitamins, minerals, calories, or protein.

Tax counsel therefore assumed the product did not meet the complete-dietary-food thresholds. Because it was a tablet labeled as a dietary supplement, it did not qualify as a food product and its retail sales were taxable.

Common questions

What facts triggered the supplement exclusion?

The product was sold in tablet form and its own instructions described it as a dietary supplement.

Was the complete-dietary-food exception definitively disproved?

No. The seller supplied no relevant nutrition evidence, so counsel assumed the exception was not met.

Did the letter address prescription-medicine treatment?

It quoted the regulation's medicine exception but did not find or claim that Juice Plus+ Thins qualified for it.

Citations and references

• California Revenue and Taxation Code sections 6007, 6051, 6359, and 6369 (as cited)
• California Sales and Use Tax Regulation 1602(a)(5) (as cited)
• Federal Food and Drug Administration regulations establishing listed vitamin and mineral minimum daily requirements — quoted through Regulation 1602(a)(5) without a separate federal citation
• Redacted sales-tax director's July 31, 1996 letter requesting review of Juice Plus+ Thins — request referenced but not reproduced in the official PDF
• Juice Plus+ Thins product information supplied for review, including two flavors, tablet form, use directions, ingredients, and listed quantities — materials quoted in part but not reproduced in full in the official PDF
• Missing vitamin, mineral, calorie, and protein information needed to test the complete-dietary-food exception — absence expressly stated; no later supplementation supplied in the official PDF
• Possible later information submission, product sale, label or formulation change, audit, assessment, refund claim, appeal, or other agency action — no 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/245-1216.pdf

Original ruling text

245.1216

STATE OF CALIFORNIA

JOHAN KLEHS
First District, Hayward

STATE BOARD OF EQUALIZATION
450 N STREET, SACRAMENTO, CALIFORNIA
(PO BOX 942879, SACRAMENTO, CALIFORNIA 94279-0082)
TELEPHONE (916) 327-2291
FAX (916) 323-3387

DEAN F. ANDAL
Second District, Stockton
ERNEST J. DRONENBURG, JR.
Third District, San Diego
BRAD SHERMAN
Fourth District, Los Angeles

November 18, 1996

KATHLEEN CONNELL
Controller, Sacramento
___
E. L. SORENSEN, JR.
Executive Director

Ms. [B]
Sales Tax Director
[N]
XXXX --- --- -----, -- XXXXX-XXXX
Re:

Natural Dietary Supplements
[N]
S- -- XX-XXXXXX

Dear Ms. [B]
This is in response to your letter dated July 31, 1996 in which you inquire about the application of sales tax on your new product “Juice Plus+ Thins” which you describe as a “natural dietary food supplement.” I apologize for our delay in responding to your request, part of the delay is due to the fact that your request was not received by the Legal Division until the end of September. You have asked us to review the information relative to your new product “Juice Plus+ Thins,” to determine whether tax applies to retail sales of this product. This product is sold in tablet form and is available in two flavors, apple cinnamon and chocolate nougat. The product information you provided recommends for use “[a]s a dietary supplement chew two tablets one half hour before meal(s) and consume at least an eight ounce glass of water.” The ingredients of the tablets are listed and it is explained that: “Four tablets provide: Three (3) grams of soluble and insoluble dietary fiber from (4) grams of fiber complex, Malabar Tamarind Fruit - 0.625 grams, Lecithin - 0.3 grams, Hawthorne Berry Powder -20mg., Elemental Chromium 0.15 mg.” You have not provided any information regarding the vitamins, minerals, calories and proteins contained in the tablets.

Ms. [B]

-2-

November 18, 1996
245.1216

Retail sales of tangible personal property in California are subject to sales tax, measured by gross receipts, unless specifically exempted by statute. (Rev. & Tax. Code § 6051.) A retail sale is a sale for any purpose other than resale in the regular course of business. (Rev. & Tax. Code § 6007.) Generally sales of food products for human consumption are exempt from sales tax pursuant to Revenue and Taxation Code section 6359. However, this section specifically provides that certain items are specifically excluded from the definition of food products for human consumption. These exclusions are explained in subdivision (a) of Regulation 1602 as follows: “(5) ‘Food products’ do not include any product for human consumption in liquid, powdered, granular, tablet, capsule, lozenge, or pill form (A) which is described on its package or label as a food supplement, food adjunct, dietary supplement, or dietary adjunct, and to any such product (B) which is prescribed or described to remedy specific dietary deficiencies or to increase or decrease generally one or more of the following areas of human nutrition: 1. 2. 3. 4.

Vitamins
Proteins
Minerals
Caloric intake...”

The last paragraph of Regulation 1602(a)(5) then provides the following limitation to the above quoted exclusion from the definition of “food products”: “Tax, however, does not apply to any such products which either are exempted by Revenue and Taxation Code Section 6369, respecting prescription medicines, or are complete dietary foods providing the user in the recommended daily dosage with substantial amounts of vitamins, proteins, minerals and foods providing adequate caloric intake. An example of the latter is a food daily requirement providing the user with the following: 1. 2. 3.

70 grams of high quality protein
900 calories
Minimum daily requirements as established by the regulations of the Federal Food and Drug Administration of the following vitamins: A, B1, C, D, Riboflavin, and Niacin or Niacinamide; and the following minerals: Calcium, Phosphorus, Iron and Iodine.”

In other words, an item will not qualify as a food product, unless it is considered a complete dietary food, and its sale will be taxable if: 1) it is liquid, powdered, granular, tablet, capsule, lozenge, or pill; and 2) (A) its label or package describes it as a food supplement, food adjunct, dietary supplement, or dietary adjunct; or (B) it is prescribed or designed to remedy

Ms. [B]

-3-

November 18, 1996
245.1216

specific dietary deficiencies or to increase or decrease generally the intake of vitamins, protein, minerals, or calories. Since your product, Juice Plus+ Thins, is sold in tablet form, and is described as a food supplement, it does not meet the definition of a “food product” found in the first paragraph of Regulation 1602(a)(5). You have not provided any information to indicate whether these tablets contain the requisite caloric, protein, and vitamin values to qualify as a “complete dietary food” per the last paragraph of Regulation 1602(a)(5). In the absence of this information, we assume that this product does not meet these thresholds. Accordingly, pursuant to the provisions of Regulation 1602(a)(5), tax applies to sales of this product. If you have any further questions please feel free to contact this office again. Sincerely,

Patricia Hart Jorgensen
Senior Tax Counsel

PHJ:cl

cc:

--- District Administrator
Ms. Michelle L. Sommer, Return Analysis Section (MIC:35)