CO GIL 08-021 Sales & Use Tax 2008-08-26

In Colorado, are dietary supplements, TENS units, and 'pads' subject to sales tax, or do they qualify as exempt food or exempt therapeutic devices?

Short answer: Supplements are generally taxable—dietary supplements like vitamins and minerals are tangible personal property and don't qualify as exempt food (Regulation (39)-26-102.4.5(b)(8)/(9)) or, generally, as exempt medicine. TENS units (transcutaneous electrical nerve stimulation) are exempt only if specifically designed to treat a physical disability or surgically created abnormality (§39-26-717); units marketed as massagers, muscle exercisers, or beauty aids are NOT exempt, the same way hot tubs and exercise equipment aren't exempt despite having therapeutic value. The Department couldn't address 'pads' because the term wasn't defined. (General Information Letter: general guidance only, not binding on the Department.)

Disclaimer: This is a Colorado Department of Revenue General Information Letter (GIL) — a general discussion of the tax law that represents the good-faith opinion of Department personnel. A GIL is NOT binding on the Department and CANNOT be relied upon as a ruling by any taxpayer. It does not address sales or use taxes administered by self-collected home-rule cities and counties. This summary is informational only and is not legal or tax advice. Consult a licensed Colorado tax professional about your situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official state tax ruling. The original ruling (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ruling (PDF)

Plain-English summary

A seller asked whether Colorado sales tax applies to three things: supplements, "TENS units," and "pads."

Supplements — generally taxable. Dietary supplements are tangible personal property, so they're taxed unless an exemption applies (§ 39-26-104(1)(a)). The usual debate is whether a supplement qualifies as exempt food or exempt medicine — and the Department's rule says they generally don't: vitamins and minerals are supplements, not exempt food products (Regulation (39)-26-102.4.5(b)(8) and (9)). Because the letter didn't identify the specific supplements, the answer is general.
TENS units — only if specifically designed to treat a disability. A TENS unit (transcutaneous electrical nerve stimulation) is understood to be used as a massager and electronically induced muscle exerciser, and retailers market it as a beauty aid, a medical treatment, or both. Therapeutic devices specifically designed to treat a physical disability or surgically created abnormality are exempt (§ 39-26-717). But a device that merely has a therapeutic effect without being specifically designed for that purpose is not exempt — just like hot tubs, whirlpools, and exercise equipment, which have therapeutic value but aren't exempt (FYI Sales 68). So a TENS unit sold/marketed as a massager or beauty aid is taxable; one specifically designed for medical treatment could qualify.
"Pads" — no guidance. The Department couldn't tell what "pads" meant, so it offered no opinion.

What this means for you

Supplement sellers

Treat vitamins, minerals, and dietary supplements as taxable. Colorado does not classify them as exempt food, and they generally aren't exempt medicine either. Don't assume a "nutritional" or "wellness" label brings the food exemption — it doesn't. (See the companion food-supplement letter for the broader list of what's in and out.)

Sellers of TENS units, massagers, and wellness devices

The exemption turns on design and purpose, not effect. A device specifically designed to treat a physical disability or surgically created abnormality can be an exempt therapeutic device; a device that just happens to help (a massager, beauty aid, muscle exerciser, hot tub, exercise machine) is taxable. How you market it matters — "beauty aid" or "massager" positioning points toward taxable. If you believe a particular unit is genuinely a medical-treatment device, document its design/intended use and consider a private letter ruling.

Be specific when you ask

The Department declined to address "pads" because the term was undefined. Vague product descriptions get vague (or no) answers — describe exactly what you sell, ideally with literature, and request a private letter ruling for a binding answer.

Common questions

Q: Are vitamins and dietary supplements taxable in Colorado?
A: Yes, generally. They're tangible personal property and don't qualify as exempt food (vitamins and minerals are supplements, not food) or, generally, as exempt medicine.

Q: Is a TENS unit tax-exempt as a medical device?
A: Only if it's specifically designed to treat a physical disability or surgically created abnormality. If it's marketed/used as a massager, muscle exerciser, or beauty aid, it's taxable — having a therapeutic effect isn't enough.

Q: Why are hot tubs and exercise equipment mentioned?
A: As examples of items with real therapeutic value that still aren't exempt, because they aren't specifically designed to treat a disability. The same logic applies to a general-purpose TENS/massager device.

Q: Can I rely on this letter?
A: No. It's a General Information Letter — general guidance, not binding on the Department, and not a determination on any specific product.

Citations and references

Statutes, regulations, and publications:
- § 39-26-104(1)(a), C.R.S. — imposition of Colorado sales tax on tangible personal property
- § 39-26-717, C.R.S. — exemption for therapeutic devices specifically designed to treat a disability or surgically created abnormality
- Department Regulation (39)-26-102.4.5(b)(8) and (9) — dietary supplements (e.g., vitamins, minerals) are not exempt food
- Department FYI Sales 68 (Medical and Dental Equipment and Supplies)

Related Colorado letters:
- [[gil-08-018-inquiry-re-sales-and-use-taxes]] — supplements, OTC medicines, and toiletries not exempt food
- [[gil-08-013-taxability-of-name-products]] — "device must be equipment / designed for treatment, not everyday use"

Source

Landing page: https://tax.colorado.gov/sales-use-tax-letter-rulings
Original PDF: https://tax.colorado.gov/sites/tax/files/documents/GIL-08-021.pdf

Original ruling text

Office of Tax Policy
P.O. Box 17087
Denver, CO 80217-0087
[email protected]

GIL-2008-21

August 26, 2008
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
Re: sales tax re: supplements, etc.

Dear XXXXXXXXXX,
I am responding to your letter the department received July 24, 2008. You are interested in
the applicability of sales tax to certain items. The department recently enacted a regulation
governing requests for tax advice. We issue both private letter rulings and general
information letters. See, §24-35-103.5, C.R.S. and Department regulation (24)-35-103.5.
Private letter rulings are issued in response to tax questions addressed to specific factual
settings and are binding on the department. General information letters are issued in
response to general tax questions and are not binding on the department. I am treating your
request as a request for a general information letter. However, if you require more specific
guidance than is offered in this letter, you would need to submit a request for a private letter
ruling, along with additional necessary details.
Issues
You ask whether sales tax applies to the following items:
1. Supplements
2. Tens Units
3. Pads
Discussion
Your letter does not disclose the specific supplements at issue. In general, dietary
supplements are subject to sales and use tax because they are tangible personal property.
See, §39-26-104(1)(a), C.R.S. (sales tax applies to the sale of tangible personal property).
Debate surrounding supplements generally focuses on whether they qualify, if at all, either as
exempt “food” products or as exempt medicine. See, Department Regulation (39)-26102.4.5(b)(8) and (9). For example, vitamins and minerals are supplements and not exempt
food products.

You do not define “Tens Units,” but I assume you are referring to transcutaneous electrical
nerve stimulation units. The department understands these units are used as massagers
and electronically induced muscle exercisers. Retailers market these devices either as a
beauty aid or for medical treatment, or both. In general, therapeutic devices specifically
designed to treat a human physical disability or surgically created abnormality are exempt.
See, §39-26-717, C.R.S. However, devices that have therapeutic affect, but are not
specifically designed for such purpose, are not exempt. For example, hot tubs, whirlpools,
and exercise equipment are not exempt, even though they may have therapeutic value. This
is because they are not specifically designed for treatment of physical disability or to correct a
surgically created abnormality. See, Department FYI Sales 68.
It is not clear what “pads” means and, therefore, I cannot offer any general guidance.
The department offers retailers an abundance of sales tax related resources. These are
easily accessed through our web site at: www.revenue.state.co.us. Click on “Taxation” >
“Publication / Resources” and then select FYIs, Regulations, or Tax Information Index.
Finally, and pursuant to state law, the Department will make public a redacted version of this
letter. Your letter requesting this informational letter is not made public. See, §24-35103.5(13), C.R.S. The regulation governing private letter rulings and informational letters is
available on our web site at: http://www.revenue.state.co.us/taxstatutesregs/3921reg24-35103.5.html. I enclose a proposed redacted version of this letter. Please contact me within 60
days from the date of this letter if you have any questions, comments or concerns about the
redacted letter.
I hope this is helpful. Please feel free to contact me if you have any questions.
Sincerely,

Office of Tax Policy
Colorado Department of Revenue