Which products in a diet program were exempt from Florida sales tax, and which reducing product was taxable?

Subject

Diet Products

Plain-English summary

The Department exempted the product name redacted in its conclusion and Healthi-Snax as food products, and exempted NRG Plus as a vitamin-and-mineral food supplement.

One Day Diet Chews were taxable. The Department classified them as a reducing aid generally used for weight control rather than as exempt special dietary food.

What this means for you

The historical classification turned on the product's regulatory food status and function, not merely its inclusion in a diet program.

Common questions

Q: Were Healthi-Snax taxable? No.

Q: Was NRG Plus taxable? No.

Q: Were One Day Diet Chews taxable? Yes.

Citations and references

• Fla. Admin. Code r. 12A-1.011(1)(b), (c) — dietary foods, vitamins, and minerals
• Fla. Admin. Code r. 12A-1.020(12) — taxable reducing aids
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 93A-033

Original ruling text

Title:

Diet Products

Jun 03, 1993

Re: TAA 93A-033
Sales Tax on Wafers, Chews, NRG Plus, and Healthi-Snax
Rules 12A-1.011(1)(b)(c), and 12A-1.020(12), F.A.C.

Dear :

Thank you for the additional information provided in your
letter dated April 27, 1993. We will now be able to issue you
the Technical Assistance Advisement (TAA) you requested in your
letter dated April 13, 1993, regarding the taxability of certain
diet products sold by your company. This response to your
request constitutes a Technical Assistance Advisement under
Chapter 12-11, F.A.C., and is issued to you under the authority
of s. 213.22, F.S.

The products in question were listed in your first letter
dated February 1, 1993, received by our office March 2, 1993,
which stated:

"We have a Diet and Weight Management Program called XXX.
It consists of four different products which are described
below. I have also enclosed copies of labels for the
different products. We would like a written determination
from you as to whether these items are taxable or nontaxable in your state.

"1. Wafers - You eat these only on the diet day.

"2. Chews - You eat these before meals the next day.

"You alternate 1 and 2 each day ie. on your diet day you
eat only wafers and the next day (your non-diet day) you
eat the chews before your regular meals.

"3. NRG - A multi vitamin and mineral in liquid form for a

supplement to your diet.

"4. Healthi-Snax - An alternative snack eaten on diet or
non-diet days. Can be used in place of wafers on diet
day."

It has been determined by the proper official with the Food
Laboratory Division of the Department of Agriculture and
Consumer Services that the XXX and Healthi-Snax are considered
food products and are, therefore, not taxable as provided in
Rule 12A-1.011(1)(b), F.A.C., which provides:

"Special dietary foods such as Metracal, Bal-Cal and
fortified milk products such as 900 Calorie Diet Plan are
considered food by the Florida Food, Drug and Cosmetic Law,
and the Florida Department of Agriculture and Consumer
Services, and are exempt. This does not conflict with the
reducing products declared taxable in Rule 12A-1.020."

The One Day Diet Chews is considered a reducing aid and is
taxable as provided in Rule 12A-1.020(12), F.A.C., which states:

"Reducing aids such as Ayds, RDX, Tafon, Oragen and similar
products generally used for weight control do not qualify
for exemption as medicines and are taxable. Special dietary
foods covered in Rule 12A-1.011(1)(b) are exempt."

The One Day Diet NRG Plus is considered a vitamin and
mineral food supplement and is exempt from sales tax under the
provisions of Rule 12A-1.011(1)(c), F.A.C., which provides:

"Non-prescription vitamins and minerals are exempt as a
food or food supplement."

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 and your request
are public records under Chapter 119, F.S., which are subject to
disclosure to the public under the conditions of s. 213.22, F.S.
Your name, address, and any other details which might lead to
identification of the taxpayer must be deleted by the Department
before disclosure. In an effort to protect the confidentiality
of such information, we request you notify the undersigned in
writing within 15 days of any deletions you wish made to the
request or the response.

Sincerely,

Sharon Blair
Technical Assistance

SB/pb
Con. #8604