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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  1. identicon
    abc gum, 22 Oct 2011 @ 7:12am

    I used to think that competition meant providing a higher quality product at a lower price than the competitor. Guess that is no longer the case, maybe it never was. Now it is all about lock-in, monopoly rents and suing everyone.

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