A few years ago, I wrote about the situation that developed between 2013 and 2017 regarding the Subway sandwich shop and its houndstooth sandwiches. In 2013, an Australian teenager put a tape measure on the Subways sandwich and discovered that it was actually only 11 inches long. He posted a photo of the sandwich and the tape measure on his Facebook page, triggering a worldwide sensation.
Soon, the bar for U.S. class actions descended on Subway like grasshoppers, seeking damages under various consumer protection laws in different states. The wave of lawsuits was eventually consolidated into a single federal district court in Milwaukee, Wisconsin. (Why there? Who knows? Subway is headquartered in Milford, Connecticut. Maybe it was football season – Green Bay is right down the street and the sandwiches often have cheese on them. And we all know the state motto of Wisconsin, Eat Cheese or Die.)
It eventually turned out that the lawsuit, which became known as (deep breathing) In re Subway Footlong Sandwich Marketing and Sales Practices Litigation, was about as baseless as these lawsuits can be. Most Subway Footlong sandwiches are actually at least 12 inches long. The few that don’t only make it a fraction of an inch and – most importantly – all of the Subways dough baked in a sandwich roll weighs exactly the same weight, so the length of the roll means very little. Subway also standardizes the amount of meat and cheese, and vegetable toppings are added in front of the customer on demand, so the length of the bread literally has no effect on the amount of food each customer receives.
Nonetheless, despite proving the astonishing fact that loaves of bread vary in size, Subway and the plaintiffs’ attorneys attempted to settle the matter quickly. Individual plaintiffs would receive $ 500 and lawyers approximately $ 500,000. (Yes, that’s not a printing error.) But someone appealed the settlement, and the Federal Court of Appeal ultimately concluded that the settlement made no sense, given that Subway didn’t had clearly, in fact, done nothing wrong.
So, for only the cost of hundreds, if not thousands of hours spent first arguing the case and then fighting on the appeal, Subway ultimately withdrew from the case. Exhausted but justified, you might say.
But last month came more bad publicity for Subway from, of all places, Ireland. The Irish, like many countries in Europe, levy a VAT – that is, a value added tax, which, in short, looks like a national sales tax. A metro franchisee argued that he should not have to pay VAT on his sandwich bread, as it is a foodstuff and therefore should have been exempt from tax.
But the Irish Supreme Court ruled that Subway sandwiches weren’t exempt because they weren’t bread – because they contained more than 2 percent sugar by weight (in fact, around 10 percent) , and were therefore more analogous to confectionery like cakes or brownies than bread. .
Can’t remember when you were a kid and your mom took you to Subway to get a regular Subway bun as a special sweet treat? Or when you had a subway scroll with candles in front of you on your birthday so you could blow them out? Me neither, but the Irish High Court was stuck with definitions in the tax law, which put that 2% cap on the amount of sugar a bun could contain – or it wasn’t bread.
The distinction is a bit arbitrary and is imposed (like making drinking 21 years old and not a day earlier) for ease of application, not for logic. The sugar in a sandwich actually has important functions: it helps feed the yeast that makes the bread rise in the first place, and it also helps retain moisture, which is why this type of sandwich bread is elastic and not hard. Breads that don’t use sugar, like baguettes, are more of a weapon than food.
Perhaps the funniest thing about the Supreme Court ruling has nothing to do with the ruling itself. The original 51-page opinion (which can be found online) is captioned with an image of a harp (Ireland’s national symbol, which was also featured on its coins before switching to the euro). Immediately beneath the harp is a legend, An Chirt Uachtarach.
In case your Google Translate is not practical, it means the Supreme Court in Irish Gaelic. And just below it is written The Supreme Court in English. No one ever said the Irish don’t have a sense of humor.
Fortunately, not all opinion is written in Gaelic. But since it is tax law, it always seems to be.
Frank Zotter, Jr. is an attorney for Ukiah.
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