139.485 Exemption of food items -- Definitions.

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Page 1 of 2 139.485 Exemption of food items -- Definitions. (1) Except as otherwise provided, the terms &quot;retail sale,&quot; &quot;use,&quot; &quot;storage,&quot; and &quot;consumption&quot; as used in this chapter shall not include the sale, use, storage or <br>consumption of food and food ingredients for human consumption. (2) The term &quot;food and food ingredients&quot; as used in subsection (1) of this section means substances, whether in liquid, concentrated, solid, frozen, dried, or dehydrated form, <br>that are sold for ingestion or chewing by humans and are consumed for their taste or <br>nutritional value. &quot;Food and food ingredients&quot; shall not include: <br>(a) Alcoholic beverages; <br>(b) Tobacco; <br>(c) Candy; <br>(d) Dietary supplements; <br>(e) Soft drinks; and <br>(f) Prepared food. (3) For purposes of this section: (a) &quot;Alcoholic beverages&quot; means beverages that are suitable for human consumption and contain one-half of one percent (0.5%) or more of alcohol by <br>volume; (b) &quot;Tobacco&quot; means cigarettes, cigars, chewing or pipe tobacco, or any other item that contains tobacco; (c) &quot;Candy&quot; means a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts, or other ingredients or <br>flavorings in the form of bars, drops, or pieces. &quot;Candy&quot; shall not include: <br>1. Any preparation containing flour; or 2. Any item requiring refrigeration; (d) &quot;Dietary supplement&quot; means any product, other than tobacco, intended to supplement the diet that: <br>1. Contains one (1) or more of the following dietary ingredients: <br>a. A vitamin; b. A mineral; c. An herb or other botanical; d. An amino acid; e. A dietary substance for use by humans to supplement the diet by <br>increasing the total dietary intake; or f. A concentrate, metabolite, constituent, extract, or combination of <br>any ingredient described above; 2. Is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or <br>liquid form or, if not intended for ingestion in such a form, is not <br>represented as conventional food and is not represented for use as a sole <br>item of a meal or of the diet; and Page 2 of 2 3. Is required to be labeled as a dietary supplement, identifiable by the <br>&quot;Supplement facts&quot; box found on the label as required pursuant to 21 <br>C.F.R. 101.36; (e) &quot;Soft drinks&quot; means nonalcoholic beverages that contain natural or artificial sweeteners. &quot;Soft drinks&quot; does not include beverages that contain milk or milk <br>products, soy, rice, or similar milk substitutes, or greater than fifty percent <br>(50%) of vegetable or fruit juice by volume; (f) &quot;Food sold through vending machines&quot; means food dispensed from a machine or other mechanical device that accepts payment; (g) &quot;Prepared food&quot; means: 1. Food sold in a heated state or heated by the retailer; 2. Two (2) or more food ingredients mixed or combined by the retailer for <br>sale as a single item except food that is only cut, repackaged, or <br>pasteurized by the retailer, eggs, fish, meat, poultry, and foods <br>containing these raw animal foods requiring cooking by the consumer as <br>recommended by the Food and Drug Administration in Chapter 3, Part <br>401.11 of the FDA Food Code so as to prevent food-borne illnesses; or 3. Food sold with eating utensils provided by the retailer, including plates, <br>knives, forks, spoons, glasses, cups, napkins, or straws; (h) Notwithstanding paragraph (g) of this subsection, &quot;prepared food&quot; shall not include the following items if sold without eating utensils provided by the <br>seller: <br>1. Food sold by a seller whose proper primary North American Industry <br>Classification System classification is manufacturing in sector 311, <br>except subsector 3118; or 2. Bakery items, including bread, rolls, buns, biscuits, bagels, croissants, <br>pastries, donuts, danishes, cakes, tortes, pies, tarts, muffins, bars, <br>cookies, and tortillas. (4) Notwithstanding the provisions of subsection (1) of this section, &quot;food and food ingredients&quot; sold through vending machines or nonmechanical self-service vending <br>systems shall be subject to the tax imposed by this chapter. Effective: Ju1y 1, 2007 <br>History: Amended 2007 Ky. Acts ch. 141, sec. 10, effective July 1, 2007. -- Amended 2003 Ky. Acts ch. 124, sec. 22, effective July 1, 2004. -- Amended 1994 Ky. Acts <br>ch. 65, sec. 17, effective July 15, 1994. -- Created 1972 Ky. Acts ch. 62, Pt. I, sec. 1, <br>effective October 1, 1972