6359
. (a) There are exempted from the taxes imposed by this part
the gross receipts from the sale of, and the storage, use, or other
consumption in this state of, food products for human consumption.
(b) For the purposes of this section, "food products" include all
of the following:
(1) Cereals and cereal products, oleomargarine, meat and meat
products, fish and fish products, eggs and egg products, vegetables
and vegetable products, fruit and fruit products, spices and salt,
sugar and sugar products, candy, gum, confectionery, coffee and
coffee substitutes, tea, and cocoa and cocoa products.
(2) Milk and milk products, milkshakes, malted milks, and any
other similar type beverages that are composed at least in part of
milk or a milk product and that require the use of milk or a milk
product in their preparation.
(3) All fruit juices, vegetable juices, and other beverages,
whether liquid or frozen, including bottled water, but excluding
spirituous, malt, or vinous liquors or carbonated beverages.
(c) For purposes of this section, "food products" do not include
medicines and preparations in liquid, powdered, granular, tablet,
capsule, lozenge, and pill form sold as dietary supplements or
adjuncts.
(d) None of the exemptions in this section apply to any of the
following:
(1) When the food products are served as meals on or off the
premises of the retailer.
(2) When the food products are furnished, prepared, or served for
consumption at tables, chairs, or counters or from trays, glasses,
dishes, or other tableware whether provided by the retailer or by a
person with whom the retailer contracts to furnish, prepare, or serve
food products to others.
(3) When the food products are ordinarily sold for immediate
consumption on or near a location at which parking facilities are
provided primarily for the use of patrons in consuming the products
purchased at the location, even though those products are sold on a
"take out" or "to go" order and are actually packaged or wrapped and
taken from the premises of the retailer.
(4) When the food products are sold for consumption within a
place, the entrance to which is subject to an admission charge,
except for national and state parks and monuments, marinas,
campgrounds, and recreational vehicle parks.
(5) When the food products are sold through a vending machine.
(6) When the food products sold are furnished in a form suitable
for consumption on the seller's premises, and both of the following
apply:
(A) Over 80 percent of the seller's gross receipts are from the
sale of food products.
(B) Over 80 percent of the seller's retail sales of food products
are sales subject to tax pursuant to paragraph (1), (2), (3), or (7).
(7) When the food products are sold as hot prepared food products.
(e) "Hot prepared food products," for the purposes of paragraph
(7) of subdivision (d), include a combination of hot and cold food
items or components where a single price has been established for the
combination and the food products are sold in combination, such as a
hot meal, a hot specialty dish or serving, a hot sandwich, or a hot
pizza, including any cold components or side items. Paragraph (7) of
subdivision (d) does not apply to a sale for a separate price of
bakery goods or beverages (other than bouillon, consommé, or soup),
or where the food product is purchased cold or frozen; "hot prepared
food products" means those products, items, or components that have
been prepared for sale in a heated condition and that are sold at any
temperature that is higher than the air temperature of the room or
place where they are sold.
(f) Notwithstanding paragraph (6) of subdivision (d), if the
seller elects to separately account for sales of food products
specified in subdivision (b), then the gross receipts from the sale
of those food products shall be exempt under subdivision (a),
provided that the separate accounting is fully documented in the
seller's records. However, if the seller's records do not reflect the
separate accounting of the gross receipts from sales of nontaxable
food products, the seller's election under this subdivision shall be
revoked.