Michigan House considers repealing 'tampon tax' after lawsuit fails

Beth LeBlanc
The Detroit News

Michigan House lawmakers are considering whether to get rid of the so-called "tampon tax" or sales and use taxes levied on feminine hygiene products. 

The House Tax Policy Committee on Tuesday held its first hearing on the legislation, which has been introduced in varying forms nine times since 2015 in the Michigan House. 

"We will be making them much more affordable to those who are not able to afford them currently," said Harper Woods Democratic Rep. Tenisha Yancey. 

Yancey, one of the bill's sponsors. noted the state already exempted other products considered necessities, such as groceries, prescription drugs, and medical services and devices.

"Menstrual hygiene and products are not a luxury," Yancey said. "They are health care.”

The committee is expected to move the legislation to the House floor at its next meeting. Gov. Gretchen Whitmer and Attorney General Dana Nessel have both indicated that menstrual products should be considered "essential."

The removal of taxes on feminine hygiene products would result in an estimated about $7 million drop in tax revenue in a given year. 

Fourteen other states have eliminated the tax, including nine between 2016 and 2020, according to a state House Fiscal Analysis. Two other states have decreased or issued a temporary suspension of the tax. 

"It is just common sense," said Rep. Brian Posthumus, a Cannon Township Republican who is sponsoring the legislation with Yancey. 

"When this legislation gets pigeon-holed into partisan legislation or when it gets pigeon-holed into gender specific legislation, that’s closed-minded thinking," he said. 

The hearing came two months after a lawsuit seeking to overturn the tax and demand repayment of four years of past paid taxes on period products failed in the state Court of Claims. Three Michigan women had alleged the taxes violate equal protection clauses of the state and U.S. constitutions because they discriminate based on sex. 

They estimated the class of women paying the tax over the past four years at about 2.4 million people.

Court of Claims Judge Colleen O'Brien wrote that the women's argument against the tax mingled legal issues with policy arguments that fell outside the jurisdiction of the judge. 

“The court will not comment on the wisdom of this state’s taxation scheme, but solely on the issue of whether plaintiffs’ constitutional challenges are meritorious," O'Brien said when she dismissed the case June 9.  

The judge noted that the tax was not specific to a certain gender, but only levied on the products because they were considered "tangible personal property."

“There is nothing in the evidence or allegations to suggest that the products are taxed because of a discriminatory intent, or that the lack of an exemption results from discriminatory intent," O'Brien said. 

The women who filed the suit plan to appeal O'Brien's decision, according to court records.