What do the tomato, Jaffa cakes, and flapjacks have in common? They have all had their status for tax purposes decided by the courts.
A tax tribunal recently decided that the 36 varieties of flapjacks produced by Glanbia Milk would not be eaten for afternoon tea, were designed to be consumed on the go, were not baked, contained significant amounts of protein, were not aerated, and had a dense, chewy consistency akin to a fruit or energy bar. Compared to a “standard” flapjack, Judges Christopher Staker and Caroline Small opined, Glanbia’s version had fewer calories, about ten times less sugar, and very low levels of fat and the man on the Clapham omnibus, or their modern equivalent, perhaps a youth on an e-scooter, would immediately recognise them as a bar.
The implications for Glanbia are profound. Had the Tax tribunal found in their favour and ruled that their flapjacks were cakes, they would have been VAT-exempt. Instead, as sweets they would be subject to VAT at the going rate.
Curiously, though, flapjacks appear in the HM Revenue and Custom’s own guidance as a zero-rated food alongside bread, cakes, and marshmallow teacakes. Glanbia’s mistake, it seems, in developing their modern take on the flapjack was to move too far from the platonic ideal of a cake which involves the mixing together and baking of flour, eggs, sugar, and butter. To add further confusion, in America flapjacks are pancakes, a different kettle of fish entirely.
It all makes work for the lawyers.