Were sales of two single-use human allergy skin-testing devices subject to Florida sales tax without individual prescriptions?

Plain-English summary

The taxpayer sold two single-use devices that practitioners used to prick, puncture, scratch, or otherwise apply allergens through the skin and assess human sensitivity. Neither device was sold by individual prescription.

Florida's medical exemption covered approved diagnostic test kits, and the Department's nontaxable medical-items list specifically included allergy test kits using human blood to test for common allergens.

Based on the supplied descriptions, the Department placed both devices in that exempt category. Their sales for human use were not subject to Florida sales tax.

What this means for you

The result followed the devices' classification on the approved medical-items list. Comparable function and documentation matter more than a general medical-device label.

Common questions

Were individual prescriptions required here? No.

Why were the devices exempt? They were treated as listed allergy diagnostic test kits for human use.

Did the ruling cover other devices automatically? No, only the described products and classification.

Citations and references

• Fla. Stat. §§ 212.05, 212.055, and 212.08 and Fla. Admin. Code r. 12A-1.020, as cited in the advisement.

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 11A-025

Original ruling text

SUMMARY
QUESTION: Are the sales of Taxpayer’s allergy skin testing devices for human use
subject to tax in Florida?
ANSWER: Based on the descriptions of the allergy testing devices provided, such
medical devices are considered to be allergy test kits that use human blood to test for the
most common allergens. Therefore, sales of the allergy testing devices for human use are
not subject to sales tax in Florida.
August 12, 2011
XXX
Re:

Technical Assistance Advisement 11A-025
Florida Sales and Use Tax
Medical – Allergy Skin Testing Devices
Section: 212.08, Florida Statutes (F.S.)
Rule: 12A-1.020, Florida Administrative Code (F.A.C.)
Petitioner: XXX (“Taxpayer”)

Dear XXX:
This letter is a response to your petition dated June 22, 2011, for the Department's
issuance of a Technical Assistance Advisement ("TAA") concerning the above
referenced petitioner and matter. Your petition has been carefully examined and the
Department finds it to be in compliance with the requisite criteria set forth in Chapter 1211, F.A.C. This response to your request constitutes a TAA and is issued to you under the
authority of Section 213.22, F.S.
FACTS
Taxpayer sells two kinds of human allergy skin testing devices, XXX (“Pick”) and XXX
(“Omni”). Taxpayer indicated that both devices are designed for single use and neither
device is sold pursuant to a prescription.
Taxpayer’s website and brochure describe the Pick as an easy to use system for skin
testing of suspected allergic individuals to determine specific allergen sensitivity. The
system is designed for use by allergy practitioners who are trained in the application and
interpretation of allergy skin tests and who are trained in the recognition and treatment of
adverse allergic reactions should they occur. The brochure states that proper contact
between the device and the skin is required to ensure that the antigen-bearing tines of the
device penetrate, scarify, or prick the epidermis to deliver the antigen to the underlying
reactive dermis layer of the skin. The Pick can be used as a prick test device, puncture
test device, or scratch test device.

Technical Assistance Advisement
Page 2
Taxpayer’s website and the brochure describe the Omni as a self-loading, multiple skin
test device system with 10 test sites that can achieve 40 allergen tests with 4 applications.
The versatile design allows for simple use, whether for skin testing on an adult patient’s
arm or on a pediatric patient’s back.
REQUESTED ADVISEMENT
Are the sales of Taxpayer’s allergy skin testing devices (Pick and Omni) for human use
subject to tax in Florida?
APPLICABLE LAW
Florida law provides that every person is exercising a taxable privilege who engages in
the business of selling tangible personal property at retail in Florida. Retail sales of
tangible personal property are subject to tax, unless specifically exempt by Chapter 212,
F.S. See s. 212.05(1)(a)1.a., F.S. One of the exemptions is for the sale of medical
products and supplies. Paragraph 212.08(2)(a), F.S., specifically provides in part the
following:
(2) EXEMPTIONS; MEDICAL.-(a) There shall be exempt from the tax imposed by this chapter any medical
products and supplies or medicine dispensed according to an individual
prescription or prescriptions written by a prescriber authorized by law to prescribe
medicinal drugs; hypodermic needles; hypodermic syringes; chemical compounds
and test kits used for the diagnosis or treatment of human disease, illness, or
injury; and 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, but not including cosmetics or toilet articles,
notwithstanding the presence of medicinal ingredients therein, according to a list
prescribed and approved by the Department of Health, which list shall be certified
to the Department of Revenue from time to time and included in the rules
promulgated by the Department of Revenue. . . .
DISCUSSION
Unless a specific exemption applies, Section 212.05, F.S., provides it is the legislative
intent that every person is exercising a taxable privilege that engages in the business of
selling tangible personal property at retail in this state. For exercising such a privilege, a
tax is levied on each taxable transaction or incident. The tax is due and payable at the
rate of 6 percent, plus any applicable surtaxes imposed under Section 212.055, F.S., on
the total consideration received for each item or article of tangible personal property
when sold at retail in this state.

Technical Assistance Advisement
Page 3
Subsection 212.08(2)(a), F.S., provides that certain chemical compounds and test kits for
the diagnosis or treatment of human disease, illness, or injury are exempt from tax. Also
exempt from tax is a list of items prescribed and approved by the Florida Department of
Health, which list is certified to the Florida Department of Revenue. The list is called the
Nontaxable Medical Items and General Grocery List, Form DR-46NT. The list
specifically references allergy test kits that use human blood to test for the most common
allergens as an exempt item.
CONCLUSION
Based on the descriptions of the allergy testing devices provided, such medical devices
are considered to be allergy test kits that use human blood to test for the most common
allergens. Therefore, sales of the allergy testing devices (Pick and Omni) for human use
are not subject to sales tax in Florida.
This response constitutes a Technical Assistance Advisement under S. 213.22, F.S.,
which is binding on the Department only under the 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 10 days of the date of this letter.
If you have any further questions with regard to this matter and wish to discuss them, you
may contact me directly at 850-717-6363.
Sincerely,

Leigh L. Ceci
Tax Law Specialist
Technical Assistance & Dispute Resolution
Record ID: 105831