Sex Pills Aren’t Food, EU Magistrate Says in Dutch Tax Spat

LUXEMBOURG (CN) – Aphrodisiac supplements are not food, an adviser to Europe’s highest court said Thursday, in a case over retail sales tax and a Dutch sex shop.

“These are not consumed to provide the body with nutrients, but to stimulate sex drive,” wrote Advocate General Maciej Szpunar in his nonbinding advisory opinion for the Court of Justice of the European Union. Such products would be subject a higher value-added tax rate under Dutch law.

The Dutch tax authorities sent a 44,000 euro ($48,000) tax bill to the owner of an erotic shop, identified in court documents as X, for the sale of aphrodisiac supplements between 2009 and 2013. The products included Libidoforte, an herbal treatment for erectile dysfunction, and Spanish Fly, an herbal medication that is supposed to stimulate arousal.

The proprietor had been charging a 6% VAT tax on the sale of these supplements, but the Dutch tax authorities felt the higher rate of 21% should have been charged. In the Netherlands, 21% is the standard rate, but for some products like as food and medicine, a lower rate of 6% can be charged. This rate went up to 9% in 2019.

The owner challenged the tax assessment in a Dutch court, arguing that because the erotic supplements were prepared in a manner similar to nutritional supplements, they should be likewise classified as foodstuffs and taxed at the lower rate.

A Dutch court initially sided with the shop owner, noting items such as chewing gum and cake are classified as foodstuffs and taxed at the lower rate. The Dutch government appealed, and the case is now pending at the highest Dutch court. The Supreme Court asked the European Court of Justice to weigh in on whether the Dutch definition of what qualifies as foodstuffs was in line with EU regulations.

Szpunar disagreed with the lower Dutch court. “Food-substitute products should be ... consumed instead of foodstuffs to provide the organism of those substances with situations of shortage in the normal diet,” he wrote.

Though not required, rulings from the Court of Justice often follow the same legal reasoning as advisory opinions. The Luxembourg-based court has begun its deliberations in the case and a ruling is expected later this year.

Szpunar’s opinion was not made available in English by press time.

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