April 20, 1993
You request a letter ruling on the application of the Massachusetts sales tax, G.L. c. 64H, to sales of a product sold under the name *************** ("the product"). The product is a liquid nutrition drink which comes in a variety of flavors, including vanilla, strawberry, eggnog, coffee and chocolate.
Massachusetts imposes a five percent sales tax on sales at retail of tangible personal property by any vendor, unless otherwise exempt. G.L. c. 64H, § 2. Massachusetts exempts from the sales tax sales of food products for human consumption but excludes from the definition of food products "medicines, tonics and preparations in liquid, powdered, granular, tablet, capsule, lozenge and pill form sold as dietary supplements or adjuncts." See G.L. c. 64H, § 6(h).
The product label states that the product is a high calorie liquid food providing complete nutrition. Its ingredients include sugar, cocoa, soy protein, sodium and various vitamins and minerals. The label also states that the product may be used for total nutrition or with and between meals. From its label, the product is described as a food and not as a nutritional dietary supplement, generally used to compensate for a deficiency of vitamins and minerals essential for a healthy diet. While dietary supplements are subject to the sales tax, sales of food products for human consumption are exempt. See Letter Rulings 81-22, 82-78 and 85-17. Therefore, since the product is considered to be a food, sales of the product are exempt from Massachusetts sales tax under G.L. c. 64H, § 6(h).
Very truly yours,
Commissioner of Revenue