A Pumpernickel By Any Other Name…

One of the hardest things about COVID is not being able to sit together with my friends in our office’s break room and have lunch. Sometimes we talk about movies or TV shows or interesting cases we are working on.

Being a bunch of lawyers, we’ll sometimes debate topics of critical importance, such as whether or not a hamburger is a sandwich. The consensus is that anything served between two slices of some type of bread constitutes a sandwich. After all, if you replace a beef patty with a chicken breast, you would call it a chicken sandwich.

A new topic for us to ponder is what is the substance that Subway sandwiches are served on: is it bread? If not, what is it?

Apparently, the Irish Supreme Court settled this one for us.

The issue started back when Bookfinders Ltd, Subway’s Irish franchisee, sought a refund for the years 2004 and 2005 for paying Ireland’s Value-Added Tax at a composite rate of 9.2%. The company argued that they should instead have been subjected to 0% VAT.

Ireland adopted the VAT in 1972 that taxed items that were not “staple foods,” but rather “more discretionary indulgences,” such as ice-cream, chocolate, pastries, crisps, popcorn and roasted nuts. Staple foods, including bread, tea, coffee, cocoa, milk and “preparations or extracts of meat or eggs” were not taxed.

Because Subway’s sandwiches are served on bread, Bookfinders argued they were exempt from the VAT. The court denied their refund request, however. Bookfinders appealed this decision, and their appeal was also dismissed.

So Bookfinders went to Ireland’s highest court, and the Supreme Court tossed out their case as well.

The courts all claimed Subway was not exempt from the VAT because it did not meet the law’s strict provision that the amount of sugar in bread “shall not exceed 2% of the weight of flour included in the dough.” The Supreme Court held that, “In this case, there is no dispute that the bread supplied by Subway in its heated sandwiches has a sugar content of 10% of the weight of the flour included in the dough.”

Because it has five times more sugar than is allowed, Subway’s bread technically isn’t bread. Under Irish law, the bread is considered a confectionary, like cupcakes, cookies or scones.

A spokesman for Subway, which is the biggest restaurant chain in the world, having almost 43,000 locations in 110 different countries, said “Subway’s bread is, of course, bread.”

According to Subway’s nutritional facts, the chain’s typical breads have between three to six grams of sugar per serving. One six-inch sandwich is considered a serving. Subway also touts healthier alternatives with higher dietary fiber content, such as their 9-grain wheat and 9-grain honey oat breads. These options, however, have five and six grams of sugar, respectively. Their nutritional facts only list total sugars in its breads, not how much sugar is added.

Unlike Ireland and much of Europe, the U.S.’s Food and Drug Administration does not regulate the amount of sugar in bread. In addition to making it taste better, adding sugar to bread can also help retain moisture, improve its appearance and have a softer texture.

I figure if KFC can serve a Double Down sandwich, which uses fried chicken breasts instead of buns, Subway can certainly serve a tuna salad using pastries instead of “bread.”

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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