Were multipacks of individually wrapped ice cream and frozen novelty items exempt when their combined weight exceeded 16 ounces?

Plain-English summary

Florida taxed packages containing multiple individually wrapped ice cream and frozen novelty items even when the combined package weighed more than 16 ounces.

The food exemption covers ice cream and similar products sold in units larger than one pint, but separately wrapped novelty items remain taxable whether sold separately or in multiple units. Florida treated a twelve-pack as a package of multiple units, not as one bulk container of ice cream.

What this means for you

Grocery and convenience retailers

Do not use the carton’s combined weight alone. Individually wrapped cones, bars, popsicles, cups, and similar novelty units can remain taxable in a multipack.

Product and tax teams

Packaging format matters: one larger bulk unit and a carton of several individual novelty units do not receive the same treatment under the provisions discussed here.

Common questions

Did weighing more than one pint make the package exempt? No.

Why? The package contained multiple individually wrapped taxable novelty units.

Citations and references

• Fla. Stat. Sec. 212.08(1)(c)8.
• Fla. Stat. Sec. 212.08(13)
• Fla. Admin. Code R. 12A-1.011(4)(f)

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 20A-007

Original ruling text

Question: Whether ice cream and other frozen novelty items are taxable when sold in
packages consisting of multiple individually wrapped items having a combined weight
over sixteen ounces.

Answer: Ice cream and other frozen novelty items and similar frozen dairy products are
taxable when sold in packages that contain multiple items with a combined weight
greater than sixteen ounces.

March 20, 2020

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Technical Assistance Advisement (TAA)
TAA #: 20A-007
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BPN: XXXXX
FEIN Number: XXXXXXXXX
Sales & Use Tax – Novelty Ice Cream
Section 212.02, 212.05, and 212.08, Florida Statutes (F.S.)
Rule 12A-1.011, Florida Administrative Code (F.A.C.)
Dear XX. XXXXXX:
This is in response to your letter dated January 23, 2020, requesting this Department’s
issuance of a Technical Assistance Advisement (“TAA”) pursuant to s. 213.22, F.S., and
Chapter 12-11, Florida Administrative Code (Fla. Admin. Code) regarding the taxability
of pre-assembled meals. Your request has been carefully examined, and the
Department finds it to be in compliance with the requisite criteria set forth in Chapter 1211, Fla. Admin. Code. This response to your request constitutes a TAA and is issued to
you under the authority of s. 213.22, F.S.

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March 20, 2020
Florida Department of Revenue
Page 2

As provided in s. 213.22(1), F.S., a technical assistance advisement may be issued to a
taxpayer who requests an advisement relating to the exemptions in s. 212.08(1) 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.”

REQUESTED RULING
Whether ice cream and other frozen novelty items are taxable when sold in packages
consisting of multiple individually wrapped items having a combined weight over sixteen
ounces.
FACTS
Taxpayer operates retail stores throughout Florida. Taxpayer is seeking guidance
regarding the taxability of a single package containing a designated number of
individually wrapped ice cream and novelty items having a combined net weight of more
than sixteen ounces. Specifically, Taxpayer seeks confirmation from the Department of
Revenue that the since the packages have a combined weight of more than one pint
(sixteen ounces), the products qualify for the exemption granted to food products under
s. 212.08(1), F.S.
Taxpayer states that ice cream and novelty items excluded from the exemption for food
products applies only to cones, small cups, or pints when sold separately or in multiple
units. Taxpayer contends that the products in question, i.e., a twelve pack of
individually wrapped ice cream, are neither sold either “separately” or in “multiple units”.
Taxpayer states that each package is sold as a single unit weighing more than sixteen
ounces and; therefore, should not be excluded from the exemption.
LAW
Pursuant to Section 212.05(1)(a), F.S., sales tax is imposed at the rate of 6 percent of
the sales price of each item or article of tangible personal property when sold at retail in
this state. Section 212.08(1), F.S., provides an exemption for food products for human
consumption. The term “food products” as defined in s. 212.08(1)(b), F.S., include
edible commodities, whether processed, cooked, raw, canned, or in any form, which are
generally regarded as food. The term includes frozen foods, fruit and fruit products, and
dairy products. The exemption does not extend to ice cream, frozen yogurt, and similar
frozen dairy or nondairy products in cones, small cups, or pints, popsicles, frozen fruit
bars, or other novelty items, whether or not sold separately. See s. 212.08(1)(c)8., F.S.
The law distinguishes between ice cream and similar frozen dairy products and frozen
novelty items for taxability purposes. As provided in Rule 12A-1.011(2)21., F.A.C., the

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March 20, 2020
Florida Department of Revenue
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exemption for food products applies to ice cream, frozen yogurt, sherbet, and similar
frozen dairy or nondairy products sold in units larger than one pint.
Rule 12A-1.011(4)(f), F.A.C., states that:
Ice cream, frozen yogurt, and similar frozen dairy or nondairy products in
cones, small cups, or pints, and popsicles, frozen fruit bars, or other
novelty items, whether sold separately or in multiple units, are subject to
tax.
Because no definition of "multiple units" is provided in the rule, it is necessary to look to
principles of statutory construction. Words of common usage, when used in a statute,
should be construed in their plain and ordinary sense. Pederson v. Green, 105 So.2d 1
(Fla. 1958). The word "multiple" is defined in the Merriam-Webster online dictionary as,
“consisting of, including, or involving more than one.” The word “unit” is defined in the
Merriam-Webster online dictionary as, “a single quantity regarded as a whole in
calculation.” In this instance, each package contains a specified number of single item
“units,” forming a “multiple unit” package which are excluded from the exemption.
Furthermore, s. 212.08(13), F.S.., provides that no transactions shall be exempt from
the tax imposed by Chapter 212, F.S., except those expressly exempt. In this regard,
Florida courts have consistently held that exemptions must not be expanded beyond
their express terms and must be strictly and narrowly construed against the taxpayer.
See Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981); State ex rel.
Szabo Food Services. Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973). See also Asphalt
Pavers v. Dept. of Revenue, 584 So.2d 55 (Fla. 1st DCA 1991), at 57 (citing the rule
that exemptions from tax are strictly construed against the taxpayer, with any ambiguity
resolved in favor of the administrative agency).
Narrowly and strictly construed, the exemption granted in s. 212.08(1), F.S., does not
apply to a carton or package containing multiple items of individually wrapped ice cream
or novelty items, regardless of whether the net weight of the package is greater than
sixteen ounces. The fact that the exemption excludes ice cream, frozen yogurt, and
similar frozen dairy or nondairy products in cones, small cups, or pints, popsicles, frozen
fruit bars, or other novelty items, whether or not sold separately, gives greater weight to
the conclusion that the items are taxable.
CONCLUSION
Ice cream and other frozen novelty items and similar frozen dairy products are taxable
when sold in packages that contain multiple items with a combined weight greater than
sixteen ounces.
This response constitutes a Technical Assistance Advisement under Section 213.22,
Fla. Stat., which is binding on the Department only under the facts and circumstances

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March 20, 2020
Florida Department of Revenue
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described in the request for this advice, as specified in Section 213.22, Fla. Stat. 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, Fla. Stat., and are subject to disclosure to the
public under the conditions of Section 213.22, Fla. Stat. 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.

Sincerely,

Richard R. Parsons
Richard R. Parsons
Tax Law Specialist
Technical Assistance & Dispute Resolution

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