Cakes harden when stale but biscuits go soggy
ORDINARY mortals might think the KitKat “How many fingers am I holding up?” courtroom showdown takes the biscuit.
But history tells us that manufacturers will always bite back if they think their brand’s being threatened.
Let’s be honest, most of us would stick two fingers up at the prospect of spending millions of pounds to waffle in court over a chocolate bar’s protected status.
But it seems that’s just the way the cookie crumbles in today’s ever more febrile litigious society.
Back in 1991, a court had to decide whether Jaffa Cakes were in fact cakes or biscuits in a case to decide whether VAT was due.
In the UK, VAT is payable on chocolate-covered biscuits but not on chocolate-covered cakes.
Manufacturers McVities defended the classification of Jaffa Cakes as cakes after it was suggested they were biscuits due to their shape and size.
To prove their point, McVities created a giant Jaffa Cake to demonstrate how the biscuit reacted to moisture.
Cakes are known to harden when stale, while biscuits go soggy. However, their 12 per cent moisture content has been used to define the Jaffa Cake as a biscuit in Ireland, meaning VAT is charged.
The court eventually found in favour of McVitie’s.
In a similar case, bakers Lees and Tunnock’s took on HMRC in a wrangle lasting almost 20 years over the legal status of a snowball.
It was settled in 2014 by a judge and a tax expert sitting down to a plate of cakes.
Judges Anne Scott and Peter Sheppard were asked to taste-test Jaffa cakes, Bakewell tarts and meringues before deciding.
The verdict went in favour of the two bakeries’ claim that their snowballs should be classed as cakes – and not subject to VAT.
It cost HMRC – who had classed it as a sweet and so VATrated – more than £2.8million to
refund the taxes paid by the two firms. But celebrity chef Mark Greenaway disputed the rulings and insisted snowball and Jaffa cakes were biscuits because he can dunk them in his coffee.
Mark, who runs Restaurant Mark Greenaway in Edinburgh and has starred on The Great British Menu, said: “I would expect a cake to have sponge being the predominant factor within the cake.”
The crazy rules have led to complex, and often absurd, cases with food companies challenging the tax man over flapjacks, smoothies and Pringles crisps.
In another bizarre battle, Cadbury won the exclusive right to use a particular shade of purple – known as Pantone 2865c – on all chocolate products.
Trademarking a colour might seem strange but in 2004 the company argued they had used the colour for their Dairy Milk chocolate bars since 1905.
But in 2013, Cadbury rivals Nestlé decided to challenge their purple reign and the Court of Appeal ruled in Nestle’s favour.
In 1997 supermarket giants Asda caused a flap and faced having to p-p-pick up a bill for damages after a judge ruled their Puffin brand was a copy of the famous Penguin.
Mr Justice Robert Walker found Asda guilty but allowed the chain to continue making the biscuits provided they altered packaging.
United Biscuits had sued Asda on the grounds the supermarket’s product was a copy of their 60-year-old brand.