. legal issues .

the "tampon tax"

PMS as a legal defense

menstrual leave

the legal battle over TSS research

dioxin in tampons


"'It's not so much the tax itself, is it dear? It's the affront. I never really thought of it before. Only women have periods.'

'Yes, the tax doesn't amount to that much, but there's a principle here. And I had to do something for once in my life.'" ~ Joan Fern Shaw. "A Period of Quiet but Colourful Protest," in Fireweed, Sept. 1985.

. the "tampon tax" .

You may or may not be aware that, in most states, women's "sanitary" products are taxed. The purpose behind exempting food, drugs and medical services from taxation is to supposedly make a distinction between necessary items and "luxury" items. It is true that women have made do without commercial sanitary products from the beginning of time, but does that mean that they are "luxury" items? Because "sanitary" products are not actually sterile, they don't qualify as medical products, and, of course, they really aren't, strictly speaking. However, here's a curious thought for you: chapstick, which prevents the oh-so-dangerous condition of dry, cracked and peeling lips, is exempt from taxation, while sunscreen, which prevents skin cancer, is not.

A bill to repeal the tax on feminine hygiene products will be considered this year in New York State; they are already tax-free in Massachusetts. Until other states follow the example of Mass., what are women to do? They must either put up with the irritation of paying tax on their menstrual products, use "homemade" alternatives as early women did, or maybe take a trip to Mass. to buy their tampons and pads. If feminine hygiene products are taxed in your home state, you may wish to write to your city or state representative. The bill to repeal the tax in New York is up for consideration in part due to the efforts of 39-year-old actress Isabella Isola who wrote her city councilman upon discovering that her Tampax was being taxed.

Sources:

"Letters From Readers." Glamour April 1998.

"Pay as You Flow." http://critpath.org/%7Etracy/side1.html

Solomon, John. "Repeal the Tampon Tax." Glamour Feb. 1998.

. PMS as a legal defense .

In recent years, an increasing number of cases have presented PMS (premenstrual syndrome) as their primary legal defense, arguing that its effects cause women to behave irrationally, in a manner similar to temporary insanity. Some women do experience extreme mood swings and physical effects from PMS. However, many people (men and women alike) believe that using PMS as a legal defense is an abuse of the system and is, in fact, more detrimental than helpful to women. The reasoning behind this line of thought is that presenting PMS as an "excuse" for irrational behavior promotes and perpetuates the idea that once a month, women are incapable of serious thought and/or responsibility for their own actions.

Members of the legal profession are concerned about the use of PMS and other syndromes, "internal or external forces that limit individual responsibility" (Goldberg), as legal defenses. Some people feel that "the doctrine of victimology - claiming victim status means you are not responsible for your actions - is beginning to warp the legal system" (John Leo, sr. editor for U.S. News & World Report, qtd. in Goldberg). As Roger L. Conner, director of the American Alliance for Rights and Responsibilities in Washington, D.C. put it, "the search for explanations has collapsed into a search for excuses" (qtd. in Goldberg). For the most part, PMS (along with other physiological conditions) has been "denied for policy reasons (they will open the floodgates) or because the proof of causation is tenuous" (Goldberg).

PMS specifically has been argued against as a legal defense particularly because of the difficulty in medically and scientifically proving that actions by the defendant were the result of PMS. One of the most important concerns about it, for women, however, is the fact that "it could be used as a weapon against women in custody disputes and battering cases" (Goldberg). "PMS must be viewed as much as a sword to be used against women as a shield to protect them" (former Brooklyn D.A. Elizabeth Holtzman, qtd. in Goldberg).

This does not mean that PMS has not been presented as a defense in a court nor been accepted as a viable one; British courts have admitted evidence of PMS in a 1980 case of a barmaid accused of murder and a 1981 case in which a woman ran her lover over with her car. Both women had their sentences mitigated because of the PMS evidence. In the U.S., a Virginia woman was declared not guilty of drunken driving after arguing that PMS caused her erratic behavior, not alcohol. State troopers pulled Dr. Geraldine K. Richter, 42, over when they spotted her car straddling the white broken line. According to the troopers, she became violent when they attempted to handcuff her. According to Richter and her lawyer, she only became violent when the troopers threatened to take her children to Child Protective Services, and that this was a result of the irritability and hostility caused by PMS. Her lawyer also informed the court that studies indicated that women absorbed alcohol more quickly during their premenstrual cycles, causing them to feel the effects of alcohol more strongly; Richter had been drinking prior to driving. The Breathalyzer results were thrown out because she confessed that she'd held her breath during the test, which skewed the results.

A gynecologist who testified at Richter's trial as an expert witness informed the court that "Richter was not under treatment for PMS at the time of the arrest and didn't know she had it" (Brown). The implication of this sort of statement, and the use of PMS as a defense in general, is that PMS is a form of insanity. As Holtzman (quoted above) mentioned, this idea may easily be turned against women.

Sources:

Brown, DeNeen L. "PMS defense successful in VA drunken driving case." Washington Post 7 June 1991.

Goldberg, Stephanie B. "Fault Lines." American Bar Associate Journal June 1994.

"PMS defense wins DUI case." Chicago Daily Law Bulletin 7 July 1991.

. menstrual leave .

Menstruation as grounds for a leave of absence from work, mandated by law, has both positive and negative ramifications. Allowing women to take leave from work, as if they had some sort of debilitating ailment, presents menstruation as a crippling event, peculiar to only women. On the other hand, however, it is important that employers recognize that during menstruation, some women do not feel comfortable around other people, or that they are capable of putting forth their best efforts at work. For some women, menstruation also brings on painful cramping, preventing them from carrying out their jobs.

Under Indonesian law, every female employee of both private and state companies has the right to take two days of menstruation leave each month. In July of 1995, 6,000 of the 13,000 employees of Great River Industries Company, a publicly listed company which is co-owned by President Suharto's eldest daughter, Siti Hardijanti Indra Rukmana, and one of Indonesia's foremost textile exporters, went on strike. The workers demanded, along with wage increases and better employment conditions, menstrual leave, which they are entitled to under the Indonesian Labor Law. Other Indonesian labor strikers made similar demands. On Nov. 14, 1997, Indon Cigarette, Indonesia's largest cigarette maker, agreed that women would be paid for menstrual leave and made other concessions to end a strike. Female workers in attendance at a conference to discuss manpower legislation in 1997 said that some employers had threatened to fire workers who insisted on taking their menstruation leave and that others "would excuse women who were having their period, but they must still turn up for work" ("Manpower"). The spokesman for an Indonesian garment company, however, argued that "workers had abused menstrual leave, which was why they now had to be tested [to assure that they were menstruating at the time of leave]" (Ford).

While in Western countries do not support menstrual leave, and even call it a "bizzare" idea, as a Los Angeles Times article did, menstrual leave appears to be considered the norm in a number of Asian countries:

China has special regulations under its labor laws for menstruating women; during menstruation female workers are not to be assigned "work at high altitudes, low temperatures, or in cold water, etc." (Labour Law Survey). Many companies also have their own regulations that allow two days of menstruation leave, but often require a urine test to prove that they are, indeed menstruating.

In 1987, the Philippine Movement of Women Workers "said they will petition the Labor Department for at least two-day leaves with pay 'when the menstrual pain occurs at the onset of the monthly period'" (from Reuters).

A 1989 Japanese survey "showed 95.5% or 987 unions gave menstrual leave to their female workers" ("Wage Gaps").

In Korea, the paid one-day menstrual leave was changed to an unpaid day of leave in 1994.

Sources:

"China Labour Law Survey (as reported on Asia Women Workers Newsletter January 1997)." http://www.citinv.it/associazioni/CNMS/archivio/paesi/chinlabour_law.html

Ford, Maggie. "Workers Complain About Conditions in Minister's Factory." Business Times (Singapore) 17 June, 1993.

"Manpower Bill Unclear on Women's Leave Rights." Jakarta Post 11 August 1997.

from Reuters. "Filipino Women Workers Demand Menstrual Leaves." Los Angeles Times 17 March 1987.

"Strike continues at plant owned by Suharto's daughter." Asian Economic News 24 July 1995.

"Wage Gaps Still Exist Between Males, Females." Japan Economic Newswire 19 March 1989.

. battling over TSS research .

As of March, 1984, approximately 200 TSS cases were settled or were pending against the Procter & Gamble Company. Another 200 lawsuits were also filed against other tampon makers such as Kimberly-Clark Corp., Playtex International Inc., Johnson & Johnson Products Co. Inc. and Tampax Inc. As of March, 1984, only 7 of those cases had ever gone to trial and many were won by the tampon makers.

Merlin Bergdoll (professor at the University of Wisconsin's Food Research Institute in Madison), whose work is funded by Procter & Gamble and by other tampon makers, has been instrumental in isolating the toxin believed to cause TSS (toxic shock syndrome). Bergdoll also found that Procter & Gamble's Rely Super and Regular tampons surpassed other brands in encouraging production of the TSS related toxin. Until they discovered the existence of Bergdoll's research, attorneys based their cases primarily on statistical studies connecting tampons and TSS conducted by the Centers for Disease Control in Atlanta in 1980. This, of course, meant that they were using old information that was tenuously supported at best. However, since the revelation of Bergdoll's studies, lawyers who have sought to use the studies in their cases have faced resistance from Procter & Gamble when they attempted to access the information. Procter & Gamble has sought to prevent the information from becoming public; lawyers have charged Procter & Gamble with "suppressing important data that may enhance medical understanding of TSS" (Wenske, "Secrets"). Lawyers who have been able to obtain the data through discovery motions have been issued protective orders from the courts to prevent them from sharing the information. Those orders have been imposed in at least 50 cases.

In response to the article by Paul Wenske referred to above, Procter & Gamble wrote a letter to The National Law Journal. In it, they asserted that "at no time has Procter & Gamble or any of its scientists attempted to inhibit Dr. Bergdoll or any other independent scientist from publishing any TSS research data...has never sought to prevent the discovery of such data in the litigation on a work product basis" (McHenry). The Procter & Gamble letter also mentioned that Dr. Bergdoll's findings "were the subject of a front page Wall Street Journal article in 1981 and discussed in open court in two Rely trials in early 1982" (McHenry).

On May 4, 1984, U.S. District Judge James H. Meredith ruled that Bergdoll's research is "still 'preliminary' and would be 'misleading to the jury' if introduced in court" (Wenske, "Judge"). Judge Meredith made the ruling in the case of Rogers v. Procter & Gamble, 83-0487-C (C).

Sources:

McHenry, Powell. "P&G Denies Improprieties in Defending Suits." The National Law Journal 30 April, 1984.

Wenske, Paul. "Judge Seals Data on TSS Research." The National Law Journal 4 June 1984.

Wenske, Paul. "The Secrets of TSS; Strongest Link Yet to Tampons." The National Law Journal 5 March 1984.

. Dioxin in Tampons .

The presence of dioxin, a chemical found to potentially cause cancer and/or birth defects, has been discovered in tampons. On June 10, 1992, U.S. Congressional Representative Ted Weiss called attention to an FDA scientist's report that strongly suggested that the risk of exposure to dioxin from tampons was quite high. In 1989, the scientist reported that the "most effective risk management strategy would be to ensure that tampons and menstrual pads for good measure contained no dioxin" ("Politics").

In 1995, California Assembly Member Liz Figueroa introduced Bill A.B. 1963 to require the California State Department of Health Services to "require that a warning be placed in a prominent location on the outside of the package of sanitary pads or tampons with a printed box surrounding it" ("Politics"). The American Forest and Paper Association and Procter & Gamble raised opposition to Bill A.B. 1963, arguing that "the sponsor has not presented a definitive study showing either the presence of dioxin residue in sanitary products, or the direct health consequences of the amount of residue present"("Politics").

On July 11, 1996, U.S. Congressional Representative Carolyn Maloney sponsored the "Women's Health and Dioxin Act of 1996." The Bill "requires the National Institute of Health to 'Provide research to determine the extent to which the presence of dioxin in tampons poses any health risks to women,' specifically 'including risks relating to cervical cancer" ("Politics").

For more information on dioxins and their effects on the menstrual cycle, see: Endometriosis & Dioxins on the medical portion of this site.

Source:

"The Politics of Tampons." http://www.web.net/terrafemme/uspoltam.htm