Florida: Just What is Food, Anyway?
- Feb 1, 2013 | Gail Cole
Three recent technical assistance advisements issued by the Florida Department of Revenue raise this question: Just what is, or isn't, food in the Sunshine State?
This isn't meant to be a trick question, but the issue is trickier than you might think. Not all food is taxed in the same way. Indeed, not all food is taxed: some qualifies for an exemption. And it's not only ingredients that determine how food is, or isn't, taxed; where it's sold and consumed also enters the equation.
The questions posed to the Department of Revenue are as follows:
- "Whether the sale of a liquid coffee concentrate is exempt from sales tax as a food product under s. 212.08(1), F.S."
- "Whether the sale of a dietary supplement sold in capsule form used for weight control is exempt from sales tax."
- "Whether the sales of bakery products in retail bakery outlets for consumption off the seller's premises are subject to sales tax imposed under Chapter 212, F.S."
The answers are found in relevant Florida Statutes and Administrative Code. After carefully reviewing each case, Florida DOR made the following determinations:
Yes, yes it is.
Under Section 212.08(1), F.S., "food products for human consumption" are exempt. Food products are defined as "edible commodities, whether processed, cooked, raw, canned, or in any other food, which are generally regarded as food," including, but not limited to coffee and coffee substitutes, baked goods, meat, fish, fruits, and vegetables. Liquid coffee concentrate, which is essentially really strong coffee, qualifies.
Yes, yes it is.
The dietary supplement in question is in a capsulated form and "contains chromium, a trace mineral that is essential for normal protein, fat, and carbohydrate metabolism and is used for weight control by burning fat, reducing appetite, and increasing energy. … [It] also contains caffein, decaffeinated green tea extract, and ashwagandha root extract."
Section 212.08(1), F.S., described above, is again called into play, along with the Dietary Supplement Health and Education Act (DSHEA) of 1994, which "places dietary supplements in a special category under the general umbrella of 'foods'."
If they are sold to be consumed off the premises, and "packaged in a manner consistent" with that intention, then they are exempt.
Pursuant to 12A-1.011 (3)(c)2., F.A.C.:
"There is a rebuttable presumption that the sale of bakery products by bakeries, pasty shops, or like establishments that have eating facilities are taxable when:
a. Such bakery products are sold in quantities of five (5) or fewer items; or
b. The bakery products sold, regardless of the quantity, are not packaged in a manner consistent with an intention by the customer to consume the products off the seller's premises." (Emphasis mine).
So there it is. In these instances, liquid coffee concentrate and labeled dietary supplements are considered food products and are exempt from Florida sales tax. Bakery products that are sold and packaged for consumption off the seller's premises are also tax exempt. Warning: do not attempt to eat that doughnut in the shop.
The Florida Department of Revenue makes it clear that Technical Assistance Advisements are "binding on the department only under facts and circumstances described" in each particular request.
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