West Virginia – Taxability of Food Items and Supplements

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SALT Report 1412 – The West Virginia State Tax Department has updated its publication regarding the reduced consumer sales and service tax rate that applies to food and food ingredients intended for human consumption.
Effective January 1, 2012 items sold by grocery stores and supermarkets that fall within the definition of “food and food ingredients” are subject to sales tax at the reduced rate of 2%. Prepared food items and soft drinks, sold through vending machines, are subject to sales tax at the regular rate of 6%.
Sales of Supplements
The sales of dietary supplements are subject to the reduced Sales Tax rate of 2%.  “Dietary supplements” include any product that:
1) Is intended to supplement the diet
2) Contains one or more of the following ingredients:
  • Vitamins,
  • Minerals,
  • Herbs or other botanicals,
  • Amino acids,
  • A dietary substance for use by humans to increase the total dietary intake, or
  • Concentrates, metabolites, constituents, extracts or a combination of any of the above ingredients
3) Is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form, or, if not intended for ingestion in the above form, is not represented as a conventional food and is not represented for use as a sole item of a meal or of the diet; and

4) Is required to be labeled as a dietary supplement, with the “Supplemental Facts” box found on the label as required under 21 CFR 101.36.

Bundled Transactions:

When a taxable item that is subject to the 6% rate is sold, for a single non-itemized price, along with an item subject to the 2% rate, the total purchase amount is subject to the 6% rate.  For example:

Popcorn prepared by the seller and sold with a drink and candy for one price is a bundled transaction subject to the 6% rate.  However, if the popcorn, drink and candy are sold individually, the popcorn and drink are subject to the 6% rate while the candy is subject to the 2% rate effective January 1, 2012.

The publication includes a complete list of all food items in which the 2% rate applies, prepared food items in which the 6% rate applies, and a sales tax rate chart for food.

For Further Information:

West Virginia State Tax Department – TSD-419