Hi, my name is Noah, and I have a weird obses­sion with gov­ern­ment mem­os. [They’re] my favorite lit­er­ary genre. I love read­ing them because the world is an unclas­si­fi­able place, but the peo­ple that write these mem­os have to try to clas­si­fy it any­way, and the results get weird. You get these clas­si­fi­ca­tion odd­i­ties, these reg­u­la­to­ry platypuses. 

A Venn diagram showing a beaver playing a guitar at left, a duck playing a keyboard at right, with a platypus playing a keytar in the overlap.

Tenso Graphics, Math”

This comes up espe­cial­ly often in tax pol­i­cy. You’ll get a case like a state where a Snickers bar is tax­able, but a Kit Kat bar is tax-free because a Snickers counts as can­dy, but a Kit Kat bar has flour in it, so it counts as a baked good instead.

In California, there was a case in 1950 with the Board of Equalization that’s maybe the least appe­tiz­ing court doc­u­ment you’ll ever read. It’s about whether a sausage cas­ing should be con­sid­ered a food or a con­tain­er. Don’t think about it too much.

Here’s anoth­er one. If your child is kid­napped, can you still claim them as a depen­dent on your Federal tax return? It was some­one’s job to fig­ure this out, and Publication 501 of the IRS has an entire sec­tion on it, with a three-part test that you have to meet.

But my favorite gov­ern­ment memo of all time is from the state of Wisconsin. It’s about ice cream cake, and whether it is a cake or ice cream. This memo is 1,500 words long. It con­tains ten dif­fer­ent hypo­thet­i­cal ice cream cake sce­nar­ios that it walks you through.

I recent­ly learned that in my new home state of New York, there’s a spe­cial tax cat­e­go­ry for sand­wich­es. This meant, of course, that some­where there was a memo defin­ing the offi­cial New York def­i­n­i­tion of a sand­wich, so I had to find it. I found it. It’s Tax Bulletin 835, I think. It has a long list of exam­ples, things like BLTs and club sand­wich­es and pani­nis, but also some ques­tion­able inclu­sions like gyros and hot dogs and but­tered bagels. It includes open-faced sand­wich­es, which strikes me as real­ly dan­ger­ous­ly broad. Like we’re just going to call any piece of bread with stuff on top of it a sand­wich? Should we be con­sid­er­ing a slice of piz­za an open-faced grilled cheese? It seems like a dan­ger­ous path. 

But this was not the most trou­bling. The most trou­bling thing in there is that bur­ri­tos are on the list. And I know in my heart that bur­ri­tos do not belong on this list. But I had trou­ble artic­u­lat­ing why, and it led me to a lot of soul-searching about what is the essence of sand­wich­ness? What is it that real­ly defines a sand­wich? Is it stacked lay­ers? Is it about it being open rather than enclosed? Does it need to involve two slices of bread? For that mat­ter, does it need to involve bread at all? If you want to get Talmudic about it, there’s the hil­lel sand­wich that’s eat­en on Passover, which uses mat­zo. There’s the ice cream sand­wich. Is that a sand­wich in name only? I don’t know if KFC still makes it, but there’s also the Double Down, which strikes me as very sandwich-like.

So I’ve spent a lot of time late­ly think­ing about sand­wich hypo­thet­i­cals in case that was­n’t clear. But for the bur­ri­to issue we actu­al­ly don’t have to be hypo­thet­i­cal. There is some case law on this, from right here in Massachussetts. In 2006, a Panera Bread signed a lease in a shop­ping cen­ter in Shrewsbury, with a clause that basi­cal­ly said no com­pet­ing sand­wich shop would be allowed into the mall while they were there. A Qdoba Mexican Grill moved in, and Panera sued their land­lord and argued that they sold sand­wich­es. The Superior Court judge ruled emphat­i­cal­ly that a bur­ri­to is not a sandwich.

What I want to draw your atten­tion to is that the defense case includ­ed tes­ti­mo­ny from three expert wit­ness­es. There were three sand­wich experts, like the Boston chef who said, I know of no chef or culi­nary his­to­ri­an who would call a bur­ri­to a sand­wich. Indeed, the notion would be absurd.” There was a food writer for the Boston Herald who said, Nobody would say that they are going to the bur­ri­to shop to get a sand­wich, or con­verse­ly, that they are going to the sand­wich shop to get a bur­ri­to.” I hap­pen to agree. The star wit­ness was the for­mer Deputy Director of the Food Standards and Labeling Division of the USDA, who point­ed out that while the USDA reg­u­lates bur­ri­tos, it does­n’t even have juris­dic­tion over sandwiches.

Ordinary closed sand­wich­es are exempt from USDA reg­u­la­tion. When a meat or poul­try fill­ing is placed with­in oth­er bread-type com­po­nents, e.g. tor­tilla, the USDA asserts its reg­u­la­to­ry author­i­ty over these products. 

So there are actu­al­ly two sep­a­rate reg­u­la­to­ry frame­works. The FDA han­dles sand­wich­es. So it seems like there’s an emerg­ing expert con­sen­sus, and that New York may be out of step with it. I’ve filed a Freedom of Information request with the New York State Department of Taxation and Finance, and I hope to get some more clar­i­ty on this, but it’s still pending. 

So in the mean­time I will leave you with an argu­ment that I find odd­ly per­sua­sive, which is the tor­ta defense. The tor­ta defense states that if a bur­ri­to were a sand­wich, it would be a tor­ta. And a bur­ri­to is not a tor­ta. Ergo, a bur­ri­to can­not be a sandwich.


Help Support Open Transcripts

If you found this useful or interesting, please consider supporting the project monthly at Patreon or once via Cash App, or even just sharing the link. Thanks.