Let Them Eat Really Sugary Bread

Oct. 6, 2020

When is bread not bread? When it has too much sugar, if you’re an Irish judge.

When is bread not bread?

When it has too much sugar, if you’re an Irish judge.

A tax case in Ireland turned on whether the stuff used to make Subway sandwiches qualifies as bread under that country’s laws. A Subway franchisee in Galway applied for a tax refund, saying his store’s bread should have been exempt from taxation.

The problem is that Subway bread is made from dough in which the sugar amounts to 10% of the weight of the flour. That is five times the proportion allowed under Irish tax law, which, the judge ruled, is enough to keep it from being exempt from taxation.

Subway, the world’s largest fast food chain, naturally took umbrage: “Subway's bread is, of course, bread,” it said in a statement to CNN. The Galway franchisee is considering an appeal.

Somewhere in here, there’s a joke about letting them eat cake. But instead of teasing that out, I keep thinking of another legal case: Nix v. Hedden, from 1893, in which the U.S. Supreme Court ruled that tomatoes are vegetables, not fruits.

This important legal question had to be decided because a tomato importer tried to avoid a vegetable tariff by claiming that the tomato is actually a fruit. He based his argument on botany, since tomatoes bear seeds and are the product of the plant’s ovary. Justice Horace Gray, on behalf of a unanimous court, basically said, ovary schmovary, if you eat it in a salad before supper or as a side or sauce during, it’s a veggie.

Not to be chauvinistically American, but that’s the kind of pragmatic legal thinking that the Irish tax courts could use. As long as governments use taxes and tariffs to discriminate among different kinds of foods, their citizens (and others) will try to get around them. I’m not a lawyer, but looking at usage patterns instead of technicalities like plant ovaries and sugar ratios just seems like common sense. If you eat it in a salad, it’s a vegetable, and if you put other stuff between it and sell it as a sandwich, it’s bread.

Of course, if KFC’s Double Down Sandwich ever gets involved in a tax dispute, we might have to rethink that principle.

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