Do you like crisps or chips? Your answer will depend on whether you are English or American, but they are, basically, the same thing: Crisps in England are chips (potato chips) in the U.S; Chips in the U.K. are large french fries, although I will probably be crucified for even including English chips and French fries in the same sentence.
“No profit grows”, Shakespeare once wrote, “where no pleasure is taken”. And so, in the tedious march of life, we find joy in small things: The rising of the sun; a fine glass of wine; and the greasy snap of a well-dressed potato crisp/chip.
But not so fast. Life affords no simple pleasures, and even that delectable crunch comes with a weighty debate: How much potato doth a true crisp/chip contain?
This, and several other probing questions of the crisp/chip aficionado, was immortalized by a British tax appeals court recently, which ruled that Walkers Sensations Poppadoms, the fluffy, non-crisp-appearing potato medallions, are, in fact, the same as potato crisps/chips.
Thus, we add to the hallowed roster of existential food debates, the moral implications of which far surpass their subjects’ consumable utility. Among them: Is a Jaffa Cake a cake, or a biscuit? Does a Chicago-style pie count as pizza? Is a hot dog a sandwich?
The legal ruling means Walkers, the company that makes poppadoms, and dozens of other snack foods, will have to pay the same value-added tax on its poppadoms as it does on its various crisps/chips. More important, a trial judge has recorded the sort of dictate that is sure to disproportionately irritate the masses.
“Food is probably one of the most visceral, powerful ways of expressing cultural identity,” said Dr. Ty Matejowsky, a professor of anthropology at the University of Central Florida. As such, he said, the court ruling was unlikely to change anyone’s crisp/chip opinion.
The label of Walkers crisps bears distinct similarities to the American Lays potato chip brand. Not surprising because they’re all owned by Pepsico, which kept the Walkers brand name in Britain and Ireland. The label’s different, but they’re effectively the same chip/crisp.
A poppadom, an anglicized version of the Indian “papadum,” is a flat, crunchy, circular flatbread typically made with flour. Traditionally, they’re about the size of a dinner plate. Walkers, though, freelanced the design into a smaller form, closer to the size of a potato chip, which they introduced with the help of an entertainer, a Sikh Elvis impersonator.
The Walker’s dispute bears an uncanny resemblance to the great Pringles decision of 2008, when a British high court judge ruled the ubiquitous canned/tinned snacks also counted as crisps, despite tax-related arguments to the contrary.
At its colloquial heart, the debate is about whether poppadoms are a food or a snack. For the law’s purposes, “food” requires preparation and is intended to be eaten as part of something bigger. “Snacks” are efficient packages that can be enjoyed on their own. Like, say, a bag of potato chips.
I am reminded of a conversation I had many years ago with the chief salesman of Guiness for the Caribbean. He said the company policy was that Guiness is not a drink, it is a food. Makes me wonder now if that policy was also British tax related?
It may sound like a trivial distinction, but when it comes to British tax law, it’s no small claim. Where most food items are tax-exempt, the current Value Added Tax (VAT) rate for snacks like crisps is 20 percent, putting the potential stakes of Walkers’ poppadom play in the multimillions.
“It’s a lot of money for the government,” said Dr. Catherine Clarke, a senior law lecturer at the University of Exeter. “It’s all really silly. But that’s where we are.”
The ruling is the latest in a years-long journey for Walkers, which has claimed since 2021 that its Sensations Poppadoms are not the same as their potato crisp cousins, and hence should be tax-exempt like most other foods.
There are plenty of reasons, Walker’s lawyers said, that a poppadom isn’t a crisp/chip. To start, they are meant to be eaten with other things like chutney or dips — or, one might say, prepared. And, any “ordinary person on the street” would know they weren’t the same thing. Perhaps most critically, Walkers argued, the sorts of potato starch and granules used to make the poppadom shouldn’t count as potato ingredients, by purist standards.
Unfortunately for Walkers, the tribunal was unmoved by the company’s case. The poppadoms may not contain as much potato as a traditional crisp, the judge said, but the proper ratio of potato-to-poppadom-to-chip is in the eye of the beholder. “The products,” the judge wrote, “obviously contain potato.”
It’s a narrow ruling — no thanks to Walkers, whose lawyers nearly brought the proverbial “poppadoms ship” down with them. Plenty of non-potato poppadoms, the company argued, were VAT-exempt in the U.K.
“The fact that a poppadom made to a traditional recipe from flour without potato is zero-rated for VAT purposes does not mean that a poppadom made to a traditional recipe which includes potato must also be zero-rated”. The judge said, “The former is not excluded because it is a ‘poppadom’ but, instead, because it contains no potato.”
Walkers, which did not respond to a request for comment on the verdict, has eight weeks to appeal. Until then, the law has spoken. Spiritually, it might be a poppadom. But legally — at least for now — it’s a crisp/chip.
You might think that British courts are learning from their American counterparts by encouraging the litigation of everything, trivial or otherwise. However, if there are millions of pounds involved it might be understandable.
At least it’s fun to report!
