Why Some 'Easy' Legal Questions Aren't Always So Easy: Is A Burrito A Sandwich?

from the enjoy-your-burrito dept

I will state, up front, that I am mostly posting this because it’s hilarious — but there is a bigger point, which we’ll get to. For reasons that aren’t entirely clear, Aaron DeOliveira sent over this story from GOOD, analyzing the question: is a burrito a sandwich? This may, at first, seem like a silly debate. But, as the article notes early on, it actually was the crux of a legal dispute not too long ago, in which Panera Bread sought to block a Qdoba Mexican Grill from opening in the same shopping center, pointing to a clause in its contract promising that it would be the only “sandwich shop” in the complex. Panera argued that a burrito — the main item Qdoba sells — is a sandwich. In the judge’s ruling (pdf), he used both the dictionary and his own experiences to claim that a sandwich should involve two pieces of bread. The burrito uses a single tortilla of course, thus, Qdoba opens, and Panera has to live with it.

From there, GOOD author Amanda Hess dives deep into the debate, and I can’t emphasize enough how worthwhile it is to read the whole thing, but here is a snippet to whet your appetite:

Can a food become a sandwich simply by calling itself a sandwich? Does an open-faced sandwich constitute a sandwich, despite the lack of sandwiching employed in its construction? If so, is bruschetta a sandwich? Buttered toast? Pizza?

What if you fold the pizza in half? Must the unifying exterior item be split in two in order to constitute a sandwich? Is a hot dog a sandwich? A submarine roll split in the middle, but with a hinge still hanging on? Is an omelete a sandwich?

A note on methodology: Is it necessary to consume the sandwich with one’s own two hands? If one were to douse a sandwich in gravy, would it neutralize the sandwich, converting it into nothing more than a bread-based entree?

If we’ll accept a hinge in a sandwich, what about a filling that’s encased on two sides? On all sides? Is a kolache a sandwich? A pasty? A corn dog? A calzone? An egg roll? A dumpling? A pop tart? Is a wrap a sandwich?

Is a burrito a sandwich?

It goes on from there, and just gets better, including conflicting governmental definitions of just what constitutes a sandwich, and even under whose regulations sandwiches fall (“a sandwich built with two slices of bread is controlled by the FDA; only an open-faced sandwich lies within the USDA’s purview”). Hess apparently reached out to notable “experts” on sandwiches — and at least one burrito expert — none of whom seem to fully agree on the sandwichness of a buritto.

As I said, it’s an amusing and absolutely worthwhile read, but it also highlights a key point: something that seems simple, when tossed out in normal conversation, can often become very complex under the law. We see this all the time with things we write about. Take, for example, copyright law. People who favor stricter copyright law, seem to think that it’s easy to extend copyright law without it negatively impacting creation or innovation. They say things like “infringement isn’t free speech” and “how can company X not know that content Y is infringing?” Yet, under the law, this is a lot more complex. Copyright claims can pull down non-infringing content, and that’s where things get tricky, and what may seem “obviously” infringing in some cases, often isn’t so obvious at all. Similarly, with stories about the Computer Fraud and Abuse Act, the law was put in place to deal with computer hacking. It was specifically about “unauthorized access.” Yet, over time it’s been twisted and changed to mean all sorts of things, including companies charging employees under the act for doing something personal on a computer — because it’s not “authorized.”

In some ways, this is a defense of the need for lawyers — even if they can be easy targets to hate. In a world where you can spend so much time arguing over the sandwichness of a burrito, there’s a need for lawyers. But, it’s more a warning about thinking that passing new laws and interpreting them is “simple,” and that the resulting laws will not be abused in dangerous ways. This is why we’re so concerned about many of the legal changes that come from certain industries, where they’re always presented in a simple and straightforward manner, without any concern for the eventual unintended (or sometimes sneakily intended) consequences.

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Comments on “Why Some 'Easy' Legal Questions Aren't Always So Easy: Is A Burrito A Sandwich?”

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out_of_the_blue says:

Until you spoiled it in the last paragraph,

“this is a defense of the need for lawyers”

I was going to sign off on a note of agreement that we need fewer legalistics weenies, but DANG, now you’re arguing /for/ lawyers! Phooey on you, then. — As I recall, you started my Monday with a piece about legalistic weenies.

What a dull week it’s been here. Don’t look for me again until Monday. — I’ve yet to empty my stomach so as to try the weekend Mutual Admiration Society meetings without risking puking on the keyboard, probably won’t…

PaulT (profile) says:

Re: Until you spoiled it in the last paragraph,

“DANG, now you’re arguing /for/ lawyers! Phooey on you, then”

Unlike the troll element around here, some people are capable of assessing independent cases on their own merits, without contradicting their previous positions.

For example, there are a great many cases where lawyers not only get in the way, but actively make things worse. This is especially true in cases involving IP and patents, since they often invent issues or create situations that seem like a protection racket (e.g. “we think you’re a pirate, pay us $3,000 or fight a $10,000+ court case). Here, the lawyers are a burden on society, if not outright evil.

However, their basic function is a necessary one, and the need to have experts to interpret the law is a necessary part of life in a civilised society. That a question of “what is a sandwich” requires legal intervention is sad, but in this case the lawyers are the “good guys”, acting as an intermediary between two parties to interpret their rights under the law. Without their involvement, any conclusion would be non-binding, inapplicable to future similar cases and able to be reversed at the whim of the mall owners and/or manager at any time. With the lawyers, any conclusion is not only binding, but also applicable to similar situation in the mall 6 blocks over…

You see? No contradiction. The fact that lawyers are necessary in this case does not absolve their peers of actions that either actively damage or inhibit society. The fact that it’s possible for Mike to have both ideas simultaneously does not make him a hypocrite or flip-flopper, merely a person who is capable of assessing cases independently and coming up with different conclusions based on the facts at hand. If only the trolls here – who seem incapable of realising, for example, that I can be both a critic of the entertainment industry *and* a paying customer – would be capable of such things…

Overcast (profile) says:

It’s called a ‘burrito’…

If it was a sandwich, they would call them sandwiches. But the real question here is – can’t Panera deal with any competition? Makes you wonder why..

If one was to take their advertising as being true (as in the case of almost all restaurants) they typically claim to be the ‘best’ food out there. If they themselves believe that, why fear competition?

teka (profile) says:

Re: Re:

Any restaurant, especially large (trying to be higher end?) chains will attempt these deals when getting leases.

They can commit to the large spaces and long-term rents that a property owner wants to get nailed down, the deal sweetened in return to keep them there.. and then the lawyers come together to bolt together something mutually workable with as many billable hours as possible.

side note, this can end up backfiring on the property owner. Talked to a property manager who had a Panera in the strip mall he managed. When lease renewal came around they pressured hm to drop the (significant) charges for outdoor seating, else they would move to a new center across the road. A smaller mom and pop shop would lack the ready cash to make a move like that, since “tear out this store and build a new one” is probably a rounding error to Panera.

Jeffrey Nonken (profile) says:

There’s this place in Rancho Cordova called Ike’s Deli and Bakery, and they serve sandwiches.

They bake this really nice pocket bread, cut it in half, and stuff the rest of the materials inside.

I just realized — THESE ARE NOT SANDWICHES. They are NOT meat and/or vegetables between two slices of bread. There are no bread slices here! They are pocket meals!

I’m gonna sue.

Sam (profile) says:

There was a similar case in the UK a few years back over whether a Jaffa Cake (a British snack consisting of a sponge layer, an orange flavouring, and a chocolate coating) is, in fact, a cake or a biscuit. This is due to some subtlety of VAT rules wherein a chocolate-covered cake is a foodstuff and thus does not pay VAT, but a chocolate-covered biscuit is ruled a luxury item and does.

It was successfully argued that it is, in fact, a cake, and thus VAT exempt, on grounds including a) a biscuit goes soft when it gets stale, while a cake goes hard: a Jaffa Cake goes hard, and is thus a cake; b) the presentation of a 12″ Jaffa Cake in court (I can’t find any sources for whether the judge sampled it, or merely observed); and c) a number of other vastly less interesting details.

freak (profile) says:

Re: Re:

When I was assistant-managing a fast food restaurant, (Yes, I have gone through a lot of jobs. Students are fired at the drop of a hat around here, usually because of reasoning like: “Well, he’s not planning to be around in 5 years anyways, [other employee] might”. What can I say? It’s true), only half of our items had tax on them. Anything that was classified as a baked good, and that we did nothing extra to, had no taxes. Include butter with your croissant? Taxes. Cut your doughnut in half for two children? Taxes.

Food laws can be a bit bizarre sometimes.

Anonymous Coward says:

This is what happens when you try to fix something that you don’t understand, you end up making a mess of it.

The laws should be simple, they should not try to regulate or solve every little problem inside society, it is a blunt instrument with poor visibility over the consequences and the future.

All laws should expire at some point, and should be the last resort.

People today keep making laws that they don’t understand how they will work and they couldn’t possibly know and then when something goes wrong they try to amend it to make it more sound and end up creating more layers of uncertainty.

I think ants have it right, every worker knows what to do, they have simple rules that govern everything and they are able to function without any government body, and some people say it is impossible, well nature has proven that self governing societies don’t really need a central government just a set of simple rules to fallow, not this messy convoluted jumble of rules we have now that not even educated people in the art can agree on.

Frost (profile) says:

A much better question

Who. The. Fuck. Gives. A. Fuck.

This! This, right here, is a great indictment of our entire way of life. We’re literally wasting time arguing about the name of some lunch snack from a legal point of view, as if that had any kind of real world significance. Make the fricking food and give it to people who are hungry, that’s as hard as it has to be.

Then your fellow citizens who make clothes or shoes turn around and give you enough of those for your needs. Well, until such a time as food, clothes and shoes can be fully automated, which we could do now if we really tried to.

Are people really THAT brainwashed that this doesn’t strike you as a ludicrous waste of time and effort?

95% of our laws are a pointless waste of life and only exist because of us using a money-based approach and clinging to the idea of ownership of anything. Even most crime that occurs occurs because of monetary gain.

Frankly, the whole discussion about what to call a burrito is making me sick. It’s no wonder we’re destroying the planet – a billion people are starving yet in the industrialized world we have hordes of people spending their days bickering about bullshit like this. It’s utterly sickening and not a little depressing.

Cobarde An?nimo says:

El Sandwicho

I like eating certain snacks I refer to as Mexican Sandwiches. It’s all the same ingredients as a regular sandwich, but wrapped in a tortilla because I ran out of bread. Some people might be inclined to call it a wrap. I guess it depends on whether I just fold the tortilla in half, or if I roll it up like a burrito (tastes the same either way). Good tip; flour tortillas for deli meats, corn tortillas for PB&J. Now I’m confused as to what to call it…

Danny (profile) says:

Panara's doesn't have a chicken leg to stand on

This case is Panara v White City Shopping Center. Here is a pdf of the stores there: http://www.chartweb.com/sc/SHR/Flyer.pdf

There is a Friendly’s; they sell many kinds of sandwiches–I am partial to their patty melt. There is a Five Guys Burgers & Fries; burgers are meat in between buns. There is an IHOP; leaving aside their pigs in a blanket, they offer a full sandwich menu. There is a KFC, which offers a tasty–tho not too healthy–chicken sandwich. And there is a Dunkin Donuts, which offers several breakfast sandwiches and paninis.

So, what’s the beef with the Qdoba?

Actually, what this case really proves is that Panara paid good money for not very good lawyering. If they wanted a non-compete in their lease, they had to spell out very carefully what the boundaries of non-compete were. They didn’t do that.

btr1701 (profile) says:


> It goes on from there, and just gets better, including conflicting
> governmental definitions of just what constitutes a sandwich,
> and even under whose regulations sandwiches fall (“a sandwich
> built with two slices of bread is controlled by the FDA; only an
> open-faced sandwich lies within the USDA’s purview”).

The real story here is that the federal frakkin’ government is regulating sandwiches in the first place. How the hell did sandwiches become a federal issue and where in the Constitution is the federal government expressly given the power to regulate them?

Yes, yes, I know the Supreme Court has ‘interpreted’ the Commerce Clause to the point where it strains credulity, and thereby given its blessing to this sort of nonsense, but I can’t imagine anyone could read the Constitution objectively and honestly come away with the notion that the government it describes has the authority to regulate the sandwich-making of the citizenry.

The Founders would weep if they could see what has become of the system they created.

Anonymous Coward says:

Re: Amazing

Should we do away with all standards for food handling? You must live on a farm and grow/handle/cook all of your own food, handling everything from field to table personally. In our modern society many of us cannot live that way and count on others to help provide our food. Even with all of the regulation that we do have people get sick all the time. Here is a recent example:

Food safety matters, love it or hate it.

Beta (profile) says:

any way you slice it

I have no sympathy for anyone in this case but the judge. Panera and the shopping center took some vague, imprecisely defined commonplace ideas (“This is a sandwich.”, “That restaurant sells food too much like ours.”) and built a contract around them. Now a borderline case (which they could easily have foreseen) throws them right into court.

I hope they’ve both learned from their mistake, but I doubt it. They’ll both try for “clearer” (i.e. more complicated) language in the future contracts, which will increase the billable hours involved and do absolutely nothing to solve the underlying problem.

SkullCowboy (profile) says:


“In a world where you can spend so much time arguing over the sandwichness of a burrito, there’s a need for lawyers.”

I submit that needing a lawyer to determine if a burrito is a sandwich is a direct result of politicians (who mostly used to be lawyers) writing laws in such a way as to REQUIRE a lawyer to to determine if a burrito is a sandwich, hence insuring their continued existence.

Do away with the lawyers. Eventually we won’t need them anymore…

TimothyAWiseman (profile) says:

Its not just legal

This does not just happen in the legal areas, but when you try to precisely define any term with some actual consequences assigned to the outcome of that definition. This is a common theme in science and mathematics as well as law and philosophy. In philosophy and logic it is related to “The Problem of Vagueness”. And it is one of the major issues addressed in Lakatos’ treatise “Proofs and Refutations.”

Most terms used in every day language are not well defined. But for most uses, people don’t care. Context and knoweldge of the speaker will often provide further clarification beyond the mere definition, and beyond that we normally just don’t care. We are highly tolerant of vagueness in normal communications and normally don’t inquire too deeply into it.

It just so happens that contracts and related legal areas are becoming increasing prevalent in the life of an average person. They have become for most people the one area where vagueness is often not well tolerated, and it can be surprising to see how hard it is to define a term and how high the stakes can be in an area where vagueness is not tolerated and nuanced implications can matter significantly.

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