Were the reviewed over-the-counter weight-loss capsules exempt from Florida sales tax as a common household remedy?

Plain-English summary

A taxpayer asked about a redacted, FDA-approved weight-loss capsule sold without a prescription. The active ingredient had previously been approved for prescription-only use, while this product was a lower-dose formulation approved in 2007 as an over-the-counter drug for overweight adults age 18 and older. It worked by attaching to digestive enzymes and preventing absorption of some dietary fat.

Florida held that the reviewed product was exempt from sales tax as a common household remedy under section 212.08(2). That statute covers remedies generally sold for internal or external use in curing, mitigating, treating, or preventing human illness or disease. The Department also noted that the incorporated Nontaxable Medical and General Grocery List included dietary supplements and substitutes, digestive aids, herbal supplements, and vitamin and mineral supplements.

The advisement is expressly transaction-specific. Section 213.22 states that a TAA on these exemptions has no precedential value beyond the requesting taxpayer and the particular transaction unless the document says otherwise.

What this means for you

The reviewed capsule qualified as a household remedy

The Department did not tax the product merely because it was sold for weight loss without a prescription. Its regulatory status, formulation, intended users, and physiological function supported exempt treatment.

Do not generalize the result to every diet product

The product name and ingredient are redacted, and the ruling repeatedly limits itself to the facts presented. Powders, foods, cosmetic products, or supplements with different claims and ingredients may require a separate analysis.

Product documentation matters

The Department reviewed the FDA approval and the way the active ingredient functioned. Retailers seeking similar treatment should retain authoritative product labeling and regulatory documentation supporting the product's classification and use.

Common questions

Q: Were the nonprescription weight-loss capsules taxable?
A: No. The Department classified the specific reviewed product as an exempt common household remedy.

Q: Did the product need a prescription?
A: No. It was an FDA-approved over-the-counter formulation, even though its active ingredient had also been approved in a prescription product.

Q: Are all weight-loss supplements exempt?
A: This ruling does not say that. The product is redacted, and the TAA applies only to the requesting taxpayer's specified transaction and facts.

Citations and references

• Fla. Stat. § 212.08(2) (common household remedies)
• Fla. Stat. § 213.22(1) (scope and precedential effect of Technical Assistance Advisements)
• Fla. Admin. Code r. 12A-1.020 (Nontaxable Medical and General Grocery List)

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 09A-008

Original ruling text

SUMMARY

STATUTE CITES:

212.08(2), F.S.

QUESTION: Taxpayer questions whether non prescription weight loss capsules are
exempt from sale tax.
ANSWER: Section 212.08(2), F.S., exempts the sale of common household remedies.
The exemption applies to the sale of non prescription weight loss capsules.

February 3, 2009

XXX

Re:

Technical Assistance Advisement 09A-008
XXX
Sales and Use Tax
Section 212.08(2), Florida Statutes (F.S.)
Rule 12A-1.020, Florida Administrative Code (F.A.C.)

XXX:
This response is in reply to your letter to the Department, dated November 17, 2008, in
which you are requesting the Department's issuance of a Technical Assistance
Advisement ("TAA") pursuant to s. 213.22, F.S., and Chapter 12-11, F.A.C., regarding
the sale of XXX. An examination of your petition has established that you have
complied with the statutory and regulatory requirements for issuance of a TAA.
Therefore, the Department is hereby granting your request for issuance of a TAA.
As provided in Section 213.22(1), F.S., a technical assistance advisement may be issued
to a taxpayer who requests an advisement relating to the exemptions in Section 212.08(1)

Technical Assistance Advisement
Page 2

or (2), F.S., at any time. Technical assistance advisements shall have no precedential
value except to the taxpayer who requests the advisement and then only for the specific
transaction addressed in the technical assistance advisement, unless specifically stated
otherwise in the advisement.
The product for you seek guidance for is XXX, an FDA approved weight loss capsule
that prevents the body from absorbing fat. The active ingredient in XXX is XXX, which
was approved by the FDA for prescription use only. XXX is a lower dose formulation of
XXX (brand name XXX) and was approved by the FDA in 2007 as an over the counter
drug. The active ingredient in XXX attaches to the natural enzymes in the digestive
system, preventing them from breaking down about a quarter of the fat consumed. The
undigested fat cannot be absorbed and passes through the body naturally. According to
the FDA approval letter, XXX was approved as a nonprescription drug for weight loss in
overweight adults, 18 years and older.
Section 212.08(2), F.S., provides an exemption for common household remedies
recommended and generally sold for internal or external use in the cure, mitigation,
treatment, or prevention of illness or disease in human beings. The Nontaxable Medical
and General Grocery List (DR-46NT), incorporated by reference in Rule 12A-1.020,
F.A.C., includes dietary supplements and substitutes, digestive aids, herbal supplements,
and vitamins and mineral supplements as exempt products.
Based on our review of the product, it is exempt from sales tax under Section 212.08(2),
F.S., as a common household remedy.
This response constitutes a Technical Assistance Advisement under s. 213.22, F.S. which
is binding on the department only under facts and circumstances described in the request
for this advice as specified in s. 213.22, F.S. Our response is predicated on those facts
and the specific situation summarized above. You are advised that subsequent statutory
or administrative rule changes or judicial interpretations of the statutes or rules upon
which this advice is based may subject similar future transactions to a different treatment
than expressed in this response.
You are further advised that this response, your request and related backup documents are
public records under Chapter 119, F.S., and are subject to disclosure to the public under
the conditions of s. 213.22, F.S. Confidential information must be deleted before public
disclosure. In an effort to protect confidentiality, we request you provide the undersigned
with an edited copy of your request for Technical Assistance Advisement, the backup
material and this response, deleting names, addresses and any other details which might
lead to identification of the taxpayer. Your response should be received by the
Department within 15 days of the date of this letter.

Technical Assistance Advisement
Page 3

If you have any further questions with regard to this matter and wish to discuss them, you
may contact me directly at (850) 922-4838.
Sincerely,

Richard R. Parsons
Tax Law Specialist
Technical Assistance & Dispute Resolution
(850) 922-4838
Record ID: 54959