Paul L. Caron

Thursday, March 25, 2010

Does New 10% Tanning Tax Discriminate Against Whites?

A lawyer asks whether the new 10% tanning tax included in the health care bill unconstitutionally discriminates against whites:

I [have] a question about the intersection of taxation and civil rights law. It strikes me that the health care bill which requires that indoor tanning salons will charge customers a 10% tax beginning in July will necessarily only impact tanning salon customers. I have never been to a tanning salon, but since their purpose is to turn light skin darker, I can only assume that the overwhelming majority, if not totality, of customers are white. Does Adarand apply to taxation decision as it does to spending decisions like the Section 8(a) program, but what about taxing decisions?

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» Does the tanning tax discriminate? from Don't Mess With Taxes
The first health care related tax to go into effect is the 10 percent addition to the cost of UV tanning services. That starts on July 1. Obviously, tanning bed operators and customers are not happy. And as with other portions of the new health care la... [Read More]

Tracked on Mar 28, 2010 11:13:21 AM


"And "white people go tanning so let's tax something black people use" isn't even close to a legitimate interest." Michael, that was the smartest thing said on this page. What TERRIBLY racist analogies everyone has come up with. I really have to give it to the "I'm not a racist but.." crowd, they never cease to amaze me.

I am not white and I tan at salons to keep my eczema suppressed.

Posted by: bluebonnet | Apr 8, 2010 8:48:05 PM

Thanks for Sharing! The Taxes mainly discriminate white females. It had a greater effect on people health.

Posted by: chithra | Apr 5, 2010 5:16:48 AM

The origional idea behind the Botox tax was to tax wealthy people who had disposible income to enhance their looks through surgery. People who tan in salons cant afford those procedures. Many people who tan do it to fight exema, to get vitamin D, and start their tan so they dont burn on vacation time.
Look at the statistics for melanoma it does not come from a controlled tanning enviornment,It comes from outdoor sun overexposure. It is obvious the tax is aimed squarely at white female Americans. Fight Back! This is ridiculous.

Posted by: kevin creason | Mar 26, 2010 1:17:12 AM

The tax is both racist and sexist: it overwhlemingly hits women, and it entirely hits whites.

I have used these beds for over a decade during the winter time, though not for vanity. I use them for vitamin D, to stave off the hives and mild psoriasis I get in the winter months, and for seasonal affective disorder. It's all about sunlight, and it's amazing how effective it is.

I take great care not to burn, and it works well for me. The dermatologist in the interview is right about tanning beds being bad for people who use them for vanity's sake, but for my purposes it actually saves me the expensive services of a guy like him. A $35 tanning pass gets me through the whole winter.

I won't pretend that my experience is typical, but in the hundred or so visits I've made to a tanning salon I have never, never, ever met a tanning salon customer who was anything other than white. I'm sure Eric Holder will use that as justification to sue them all for discrimination.

Posted by: WJ Alden | Mar 25, 2010 9:46:45 PM

"Does taxation of tanning salons discriminate against Whites? Women?"

No, at least not to the point where it's unconstitutional. "People who use tanning salons" isn't a classification based on an immutable characteristic like race or sex. Also, tanning isn't an activity that is intrinsically related to some aspect of identity based on those characteristics so that taxing it would be a back-door attack on those characteristics, like taxing people who who chose not to work on Sundays could be discrimination against Christians. So, even if you stretched the point and could call it "discrimination", it wouldn't have to meet any heightened scrutiny standard and the state would only need to show a rational relationship to a legitimate state interest.

For the people who said "what about skin lighteners?", if there was a tax on those there would have to be the same kind of rational relationship to a legitimate interest. And "white people go tanning so let's tax something black people use" isn't even close to a legitimate interest.

Posted by: Michael | Mar 25, 2010 8:40:17 PM

If they wanted to tax something that has a greater impact on people's health and health care, how about tack another 10% on cigarettes?

Posted by: limlem | Mar 25, 2010 2:01:45 PM

This story is SO ridiculous... until you ask what the result would be if you taxed the products used almost exclusively by african-america women to straighten their hair (just one example). Gee, what would the reaction to that be like?

Right. The point of this story is to point out that hypocrisy.

Posted by: Deoxy | Mar 25, 2010 1:29:14 PM

As with the mandate, shouldn't -not- going to a tanning salon also be taxed? It directly impacts the pricing of people who do go. Your not going to one makes their prices higher.

Posted by: lorien1973 | Mar 25, 2010 1:14:33 PM

Is it any more ridiculous than most discrimination claims you have heard over the years?

Posted by: Formerly known as Skeptic | Mar 25, 2010 1:12:01 PM

There might also be an analogous problem with hair straighteners or spot/freckle removing creams; perhaps there could be a challenge to taxes on these products.

Posted by: Akouami | Mar 25, 2010 1:09:06 PM

Think more Machiavellian. Information that vitamin D deficiency has been associated with dramatically increased risk of numerous cancers and other ailments has finally been getting some attention, particularly since the anti-sun efforts have run into the anti-obesity efforts (and that evil vitamin D-fortified milk fat.) Blacks produce less vitamin D in response to sunlight than whites. Tanning salons, calibrated to produce a reasonable amount of UVB rays, can improve vitamin D levels without having to resort to supplementation. But since higher rates of incidence and mortality in blacks has been presented as evidence of the racial inequities in our health care system, we sure don't want to have a bunch of tanning beds running around making our black population healthier until Obamacare can take the credit for providing the information, and the appropriate treatment. And we certainly don't want those white people enjoying the benefits in the mean time.

A few years ago this would have sounded far-fetched to me.

Posted by: Render | Mar 25, 2010 12:55:12 PM

It also discriminates against Alaskans -- many of whom visit tanning salons in order to stave off Seasonal Affective Disorder (SAD) -- a well-recognized medical problem in areas with insufficient daylight hours.

Posted by: cthulhu | Mar 25, 2010 12:20:03 PM

Discrimination does NOT have to be intentional. Case law is clear on that point.

Posted by: Whitehall | Mar 25, 2010 12:08:22 PM

I don't think it is ridiculous at all - we are at war here, and we have to hit these tyrants wherever we can. Every tiny victory will count. This is clearly discrimination - the left may not see it that way, but that is because they only see racism in terms of dark skin.

Obviously, this tax will only affect people with light skin. That makes it discriminatory.

While we're at it, we also need to file a class action lawsuit on behalf of women of child-bearing age, due to the tampon tax (or as someone so cleverly dubbed it, the "Ko-tax). Arguably, this is a tax against only a select number of American citizens.

And we can also use both of these taxes as a rallying cry to debunk Mr. Obama's claim that only people making over $250,000 would see an increase in their taxes. Both of these examples clearly prove that claim to be false, and they unfairly target young women who are more than likely in a much lower tax bracket than most.

It's time to go "Alinsky" on these tyrants....

Posted by: Teresa in Fort Worth, TX | Mar 25, 2010 12:04:19 PM

While I'm not certain such a challenge would have merit, I think it's an interesting question. What if the federal government levied a similar tax on something that is used predominately by blacks---like, for instance, hair relaxer that black women use at salons? Would the the discriminatory impact of such a tax raise eyebrows? Probably. So why isn't it the same for a tax that has a discriminatory impact on whites?

Posted by: Susie D. | Mar 25, 2010 12:02:36 PM

Revolution is the Solution!

Posted by: Patriot | Mar 25, 2010 11:50:24 AM

I'm more inclined to call this the "MTV's 'Jersey Shore' Tax."

Posted by: TC Lynch | Mar 25, 2010 11:49:58 AM

This story is not ridiculous at all.

Imagine the furor if there were a 10% tax on skin-lightening products and procedures.

Think anyone would blow a gasket over that? Hell, yeah.
Skin darkening, though? Not a problem for some reason. Tax away!

Posted by: Jim D | Mar 25, 2010 11:44:43 AM

It's even more complicated, since Blacks need more ultraviolet (i.e. tanning rays) than whites, to synthesize enough vitamin D for health. So the tax discriminates against Whites because they're the customers, and against Blacks because they have a special need.

Figuring out how it discriminates against Asians is left to the student as an exercise.

Posted by: PersonFromPorlock | Mar 25, 2010 11:43:40 AM

I don't use tanning beds but it did cross my mind that it seems to be a tax for light skinned people.
I get that it is a user-tax. Does that mean all high risk recreational past-times will have a tax associated with them? After all, I don't want to have the same health tax as say, a mountain climber, sky diver, race car driver and such.

Posted by: Robin | Mar 25, 2010 11:39:41 AM

Sounds like a case of disparate impact to me.

Posted by: Griggs | Mar 25, 2010 11:25:11 AM

Methinks it discriminates against women - the largest number of tanning salon users.

Darque Tan here in TX is not going to be very happy about this...

Posted by: newton | Mar 25, 2010 11:24:54 AM

Under modern Constitutional interpretation it is impossible to discriminate against whites.

Posted by: EvilDave | Mar 25, 2010 10:58:52 AM

Jeez Paul, is it a slow day - this is a ridiculous story!

Posted by: Clinton | Mar 25, 2010 7:34:44 AM

It discriminates against House Minority Leader John Boehner.

Posted by: Publius | Mar 25, 2010 7:30:09 AM