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Arkansas attorney general tosses ballot title for initiative to repeal state ‘tampon tax’

At a Bed Bath & Beyond in Rockville, Md., on Friday, few tampon options are available.
Dana Marlowe
Tampons sit on a shelf a Bed Bath & Beyond in Rockville, Md.

Arkansas Attorney General Tim Griffin on Monday rejected proposed ballot language for an initiative to exempt feminine hygiene products from state sales tax.

Griffin opined that the initiative’s definition for exempted products was “ambiguous,” potentially causing a conflict for Arkansas’ membership in an interstate compact on sales tax uniformity.

The sponsor of the ballot initiative said Griffin’s denial constituted an abuse of the ballot title and popular name review process.

The group pushing for the new tax exemption has two options: submit a new ballot title that tries to satisfy Griffin’s concern or file a lawsuit to seek judicial approval of the language.

The initiated act would exempt feminine hygiene products from Arkansas sales tax, including “tampons, panty liners, menstrual cups, sanitary napkins, and other similar tangible personal property designed for feminine hygiene in connection with the human menstrual cycle.”

The ballot title and popular name were submitted to Griffin’s office Sept. 11.

Griffin took issue with what he felt was a lack of clarity in the proposal’s definition of products to be excluded from sales tax. Specifically, the measure failed to address whether it would remove Arkansas’ compliance with the Streamlined Sales and Use Tax Agreement, an interstate compact that aims to simplify tax laws across 24 member states to reduce the burden of tax compliance for businesses.

“While your proposed measure’s definition of ‘feminine hygiene products’ mirrors the first part of the Streamlined Agreement’s definition, it does not include the definition’s clause excluding ‘grooming and hygiene products’ from the term ‘feminine hygiene products,’” Griffin wrote. “This difference between your proposed definition and the product definition under the Streamlined Agreement raises the question whether your proposed measure means to include ‘grooming and hygiene products’ — thereby removing Arkansas from compliance with the compact, or whether you mean for Arkansas to remain compliant with the Streamlined Agreement, in which case your definition should mirror the product definition found in the Streamlined Agreement.”

David Couch, the attorney who submitted the ballot language, said he felt Griffin overstepped his authority, noting the AG is simply supposed to review whether the ballot title and popular name accurately reflect the proposed measure.

“If the people in Arkansas wanted to exempt pink rocks from sales tax, his job is to see if that definition of pink rocks is what pink rocks are,” Couch said.

“…A car is not a feminine hygiene product, do I need to put an exclusion for cars in there?”

Couch also said it shouldn’t have taken Griffin’s office 10 days to review such a short ballot proposal.

Frustrations with the ballot title review process have become routine for initiative groups.

Arkansas remains one of 21 states that continue to tax period products, despite exempting other health-related products.

According to the Arkansas Period Poverty Project, which backs the measure, the proceeds from the tax on period products comprises less than .01% of Arkansas’ total state revenue.

“The average menstruator will spend an average of $11,000 in their lifetime on period products, and one in four menstruators in Arkansas struggle to afford period products,” the group said in a news release.

The language of the proposal mirrors a bill proposed by a pair of Republican state lawmakers in 2021 that died in committee.

To qualify for the ballot, the Period Poverty Project must collect at least 71,321 signatures from registered voters. The measure would appear on the November 2024 ballot, and it would take effect on Jan. 1, 2025.

Deputy Editor of Arkansas Advocate, which is part of States Newsroom, a national nonprofit news organization, supported by grants and a coalition of donors and readers. The Advocate retains full editorial independence.