The Supreme Court of Ireland found Tuesday that Subway’s sandwich bread exceeds Ireland’s statutory sugar limit and therefore cannot be defined as bread.
The 51-page decision follows over a decade of litigation brought by Brookfinders Ltd., the US fast-food chain’s Irish franchisee, who argues that its bread qualified as a “staple food,” and was therefore exempt from Ireland’s Value-Added Tax (VAT). In addressing the dispute, the court wrote that “this case falls against a backdrop of a wider argument as to the proper approach to the interpretation of taxation statutes.”
Ireland’s VAT Act of 1972 differentiates between “staple foods”—bread, tea, coffee, cocoa, milk, and “preparations or extracts of meat or eggs—and more “discretionary indulgences,” such as ice cream, chocolate, pastries, chips, popcorn, and roasted nuts. Brookfinder’s original claim dates back to 2004-2005 when it paid VAT at a composite rate of 9.2 percent. It argued that its bread falls under the “staple food” category and that it should have instead been subject to the 0 percent VAT.
“The intention of the Act in making such a detailed definition is reasonably clear,” wrote the court. “It seeks to distinguish between bread as a staple food … and other baked goods made from dough, which are, or approach, confectionery or fancy baked goods.” Additionally, the VAT strictly limits the amount of sugar (and other “extra ingredients”) in bread: fat, sugar, and bread improver “shall not exceed 2% of the weight of flour included in the dough.”
Subway’s bread, the court noted, contains five times as much sugar. According to the decision, “the bread supplied by Subway … has a sugar content of 10% of the weight of the flour included in the dough, thus [exceeding] the 2% specified.”
Applying a textualist lens, the court concluded that “when the entire provision is read together… it is clear that if one ingredient exceeds the limitation, the resulting product falls outside the definition of “bread” for the purposes of the Act.”