August 1, 1979

You have requested that this Department review its position with respect to the application of the Massachusetts sales tax to the sale of certain confectionery products with breath freshening properties. You make specific reference to the following products: Certs, Clorets, Dynamints and Tic-Tacs.

You state that these products are, in effect, hard candy and that they contain in each instance, more than ninety percent (90%) sugar or other nutritive sweeteners.

You further state that the fact that some of these items may possess a property as a breath freshener is "incidental and ancillary". We note that such products are commonly advertised for their claimed breath freshening characteristics.

Massachusetts General Laws Chapter 64H, Section 6(h) exempts from taxation sales of food products for human consumption. "Food products" is therein defined to include ". . . sugar and sugar products, candy and confectionery; . . .". Specifically excluded from the definition of food products are ". . . medicines, tonics and preparations in liquid, powdered, granular, tablet, capsule, lozenge and pill form sold as dietary supplements or adjuncts."

Based on the foregoing, it is ruled that confectionery products, such as Certs, Clorets, Dynamints and Tic-Tacs, consisting principally of sugar or other sweeteners and also containing breath freshening ingredients, are "food products" within the meaning of General Laws Chapter 64H, Section 6(h) and are exempt from the Massachusetts sales tax.

Very truly yours,

/s/L. Joyce Hampers

L. Joyce Hampers
Commissioner of Revenue

LJH/JJW/jmp

LR 79-24