A few years ago, I wrote about the situation that developed between 2013 and 2017 involving Subway sandwich shop and its “footlong” sandwiches. In 2013, an Australian teenager put a measuring tape to Subway’s “foot long” sandwich and found that it was, in fact, only 11 inches long. He posted a photo of the sandwich and tape measure on his Facebook page, beginning a worldwide sensation.
Soon, the American class-action bar descended upon Subway like locusts, seeking damages under various consumer protection laws in different states. The flurry of lawsuits were eventually consolidated in a single federal district court in Milwaukee, Wisconsin. (Why there? Who knows? Subway itself is headquartered in Milford, Connecticut. Perhaps it was football season — Green Bay is just down the road, and 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 breath) “In re Subway Footlong Sandwich Marketing and Sales Practices Litigation,” was about as meritless as these lawsuits can be. Most Subway Footlong sandwiches are, in fact, at least 12 inches long. The few that fall short do so by only a fraction of an inch, and — most importantly — all of Subway’s dough baked into a sandwich roll weighs exactly the same, so the length of the roll means very little. Subway also standardizes the amount of meat and cheese, and the vegetable toppings are added in front of the customer on request, so the length of the bread had literally no effect how much food each customer received.
Nevertheless, despite having proven the astonishing fact that bread loaves vary in size, both Subway and the plaintiffs’ lawyers tried to settle the case quickly. The individual plaintiffs would get $500, and the lawyers about $500,000. (Yes, that’s not a misprint.) But someone appealed the settlement, and the federal appeals court eventually concluded that the settlement was meaningless, given that Subway clearly had, in fact, done nothing wrong.
So, for only the cost of hundreds if not thousands of hours spent first litigating the case and then fighting on through the appeal, Subway eventually got out of the case. Exhausted but vindicated, one might say.
But just last month came more bad publicity for Subway from, of all places, Ireland. The Irish, like many countries in Europe, collect a “VAT” — meaning a “value added tax,” which in shorthand is something like a national sales tax. A subway franchisee argued that it shouldn’t have to pay the VAT on its sandwich bread, because it is a foodstuff, and therefore should have been tax-exempt.
But the Irish Supreme Court decided that Subway sandwiches were not exempt because they were not “bread” — because they had more than 2 percent sugar by weight (in fact, around 10 percent), and therefore were more analogous to confectionaries like cake or brownies than bread.
Don’t you remember when you were a child and your mother took you to Subway to get a plain Subway bread roll as a special sugary treat? Or when you had a Subway roll with candles on it put before you on your birthday so that you could blow them out? Me neither, but the Irish High Court was stuck with the definitions in the tax law, which put that 2% cap on how much sugar could be in a bread roll — or else it wasn’t “bread.”
The distinction is kind of arbitrary, and is imposed (like making the drinking age 21 and not a day earlier) for ease of enforcement, not logic. The sugar in a sandwich roll actually has some important functions: it helps to feed the yeast that makes the bread rise in the first place, and it also helps retain moisture, which is why this kind of sandwich bread is springy and not hard. Breads that don’t use sugar, like baguettes, are more like a weapon than food.
Possibly the most amusing thing about the Supreme Court’s decision, though, has nothing to do with the ruling itself. The original 51-page opinion (which can be found online) is captioned with a picture of a harp (Ireland’s national symbol, which also used to appear on its coins before they switched to Euros). Immediately below the harp is a caption, “An Chúirt Uachtarach.”
In case your Google Translate isn’t handy, that means, “The Supreme Court” in Irish Gaelic. And immediately below that, it says “The Supreme Court” in English. No one ever said that the Irish didn’t have a sense of humor.
Thankfully, the entire opinion isn’t written in Gaelic. But because it’s about tax law, it still seems that way.
Frank Zotter, Jr. is a Ukiah attorney.