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.