This story was updated at 3:10 p.m. on Tuesday, Sept. 26, 2023, with comments from the attorney general’s office.
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?”
Griffin in a statement said he and his predecessors have long rejected ballot titles due to lack of clarity in the proposals’ texts.
“It has been the longstanding practice of the Office of Attorney General to reject initiatives when the text contains ambiguities that prevent us from ensuring the ballot title properly summarizes the measure,” Griffin said. “David Couch should be quite familiar with this. In the past 11 years, ballot titles from Mr. Couch have been rejected at least 24 times for this very reason, and they were rejected by both Republican and Democrat attorneys general.”
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.
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The language of the proposal mirrors a bill proposed by a pair of Republican state lawmakers in 2021 with the exception of the grooming and hygiene exclusion noted in Griffin’s letter. That bill 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.
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This story was updated to clarify details about the language of 2021 legislation related to sales tax on feminine hygiene products.
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