Happy National “Sandwich” Day!

Today, November 3, 2020, is (among other things) “National Sandwich Day.” Popularized in 18th century England by the 4th Earl of Sandwich, the sandwich has become a staple of the American lunch and an integral part of American pop culture.

You may be wondering why I put the word “sandwich” in quotation marks in the title of this post. The deceptively-simple question “is ___ a sandwich?” will yield surprisingly diverse answers (depending on who you ask) and may even result in an argument.

Much has been written on this topic. For example, is a hot dog a sandwich? Some say no. Is a burrito a sandwich? One court says no; New York tax guidance says yes. Is pizza a sandwich? Uhhhhhh … yes?

That said, since this is a law blog (and not a history blog or a food blog), I’ll briefly summarize some examples of how the topic has arisen in the legal context. The (legal) question of “what is a sandwich” has been addressed in some interesting places, ranging from legal scholarship, to court decision(s), to federal and state laws (including tax guidance).

In one law review article – Marjorie Florestal, Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts, 14 MICH.J. RACE& L. 1 (2008) – the author, a law professor, explores the issue and its contours primarily through the discussion of a 2006 Massachusetts court decision, White City Shopping Center v. PR Restaurants, No. 2006196313, 2006 WL 3292641 (Mass. Cmmw. Oct. 31, 2006), which held (on the specific facts of that case) that a burrito was not a sandwich. See also Alexander Park, “Constructing the Sandwich” (Minnesota Law Review, Feb. 22, 2019) (discussing, inter alia, the White City decision).

The decision of White City Shopping Center v. PR Restaurants, No. 2006196313, 2006 WL 3292641 (Mass. Cmmw. Oct. 31, 2006) arose from a commercial lease dispute. Without getting too deep into the weeds, the landlord shopping center entered into a lease with the tenant (Panera), which (among other things and paraphrasing) prohibited the landlord from entering into a lease with “a bakery or restaurant reasonably expected to have annual sales of sandwiches” exceeding a certain amount.

The landlord entered into a lease with the franchisee of Qdoba, a Mexican-style restaurant chain that sells burritos, quesadillas, and tacos. Panera asserted that tacos, burritos, and quesadillas fell within meaning of “sandwiches” and therefore the landlord was prohibited from leasing to the Mexican restaurant under the lease.

Tenant Panera loses. Why? Here is the meat (heh) of the decision, discussed in the context of the “likelihood of success on the merits”:

Given that the term “sandwiches” is not ambiguous and the Lease does not provide a definition of it, this court applies the ordinary meaning of the word. The New Webster Third International Dictionary describes a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Merriam-Webster, 2002. Under this definition and as dictated by common sense, this court finds that the term “sandwich” is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans. As such, there is no viable legal basis for barring White City from leasing to Chair 5. Further, PR has not proffered any evidence that the parties intended the term “sandwiches” to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did not include a definition of “sandwiches” in the lease nor communicate clearly to White City during lease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches the same. Another factor weighing against PR’s favor is that it was aware that Mexican-style restaurants near the Shopping Center existed which sold burritos, tacos, and quesadillas prior to the execution of the Lease yet, PR made no attempt to define, discuss, and clarify the parties’ understanding of the term “sandwiches.” Accordingly, based on the record before the court, PR has not shown a likelihood of success on the merits.

Further down in the decision, as to the “balance of the harms” factor, the court explained:

Even though PR vigorously argues for a broad definition of “sandwiches” under Section 4.07 to include food products sold by Qdoba, this argument does not change the fact that burritos, quesadillas, and tacos are not commonly understood to mean “sandwiches.” Because PR failed to use more specific language or definitions for “sandwiches” in the Lease, it is bound to the language and the common meaning attributable to “sandwiches” that the parties agreed upon when the Lease was drafted.

Now, to be clear, the White City decision does not resolve, once and for all, the issue of whether a burrito is a “sandwich,” since the court rendered its decision in the context of (1) a specific factual dispute, (2) between two specific parties, (3) involving specific contractual language, (4) under the law of a specific jurisdiction. Nevertheless, the decision continues to be an interesting curiosity.

Federal law is likely to confuse, rather than clarify, the issue. See Laura McCready, “All Sandwiches Should be Regulated by the USDA” (2008) (noting the difference between open-faced and closed-faced sandwiches in terms of whether they are regulated by the U.S. Department of Agriculture or the U.S. Food and Drug Administration); “Ham and Cheese, But Hold the Bureaucracy“, by Bill Adair, Tampa Bay Times (Dec. 21, 2007) (citing then-Senator Hillary Clinton’s observation in a speech that “[a] ham and cheese sandwich on one slice of bread is the responsibility of the U.S. Department of Agriculture, which inspects manufacturers daily. But a ham and cheese sandwich on two slices of bread is the responsibility of the Food and Drug Administration, which inspects manufacturers about once every five years.”).

New York’s Tax Bulletin No. TB-ST-835 states, inter alia, that “[s]andwiches include cold and hot sandwiches of every kind that are prepared and ready to be eaten, whether made on bread, on bagels, on rolls, in pitas, in wraps, or otherwise, and regardless of the filling or number of layers” and that “[a] sandwich can be as simple as a buttered bagel or roll, or as elaborate as a six-foot, toasted submarine sandwich.” Notably, it includes “burritos” on the list of “examples of taxable sandwiches.”

So there you have it. Maybe the answer to the question of “is ___ a sandwich” is, simply, “I know it when I see it.”

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