Britain’s Supreme Court of Judicature has answered a question that has long puzzled late-night dorm-room snackers: What, exactly, is a Pringle? With citations ranging from Baroness Hale of Richmond to Oliver Wendell Holmes, Lord Justice Robin Jacob concluded that, legally, it is a potato chip.
The decision is bad news for Procter & Gamble U.K., which now owes $160 million in taxes. It is good news for Her Majesty’s Revenue and Customs — and for fans of no-nonsense legal opinions. It is also a reminder, as conservatives begin attacking Judge Sonia Sotomayor for not being a “strict constructionist,” of the pointlessness of labels like that.
In Britain, most foods are exempt from the value-added tax, but potato chips — known as crisps — and “similar products made from the potato, or from potato flour,” are taxable. Procter & Gamble, in what could be considered a plea for strict construction, argued that Pringles — which are about 40 percent potato flour, but also contain corn, rice and wheat — should not be considered potato chips or “similar products.” Rather, they are “savory snacks.”
The VAT and Duties Tribunal disagreed, ruling that Pringles — which have been marketed in the United States as “potato chips” — are taxable. “There are other ingredients,” the tribunal said, but a Pringle is “made from potato flour in the sense that one cannot say that it is not made from potato flour, and the proportion of potato flour is significant being over 40 percent.”
An appeals court reversed, in a convoluted opinion that considered four interpretations of the law before ultimately rejecting three of them. In the end, it decided that Pringles are exempt from the tax, mainly because they have less potato content than a potato chip.
The Supreme Court of Judicature reversed again, in an eloquent decision. Lord Justice Jacob, in an apparent swipe at the midlevel court, insisted the question was “not one calling for or justifying overelaborate, almost mind-numbing legal analysis.”
The VAT and Duties Tribunal took an eminently practical approach, he said. It considered Pringles’ appearance, taste, ingredients, process of manufacture, marketing and packaging, and concluded that “while in many respects” they “are different from potato crisps and so they are near the borderline, they are sufficiently similar to satisfy that test.”
The tribunal was not obliged, he said, “to go on and spell out item by item how each was weighed as if it were using a real scientist’s balance.” It came down to “a matter of overall impression.”
The Supreme Court of Judicature had little patience with Procter & Gamble’s lawyerly attempts to break out of the potato chip category. The company argued that to be “made of potato” Pringles would have to be all potato, or nearly so. If so, Lord Justice Jacob noted, “a marmalade made using both oranges and grapefruit would be made of neither — a nonsense conclusion.”
He was even more dismissive of Procter & Gamble’s argument that to be taxable a product must contain enough potato to have the quality of “potatoness.” This “Aristotelian question” of whether a product has the “essence of potato,” he insisted, simply cannot be answered.
In the Pringles litigation, three levels of British courts engaged in a classic debate over line-drawing, a staple of first-year law school classes. At some point, a potato-chip-like item is so different from a potato chip that it can no longer be called one — but when? Lord Justice Jacob invoked the wisdom of Justice Holmes: “A tyro thinks to puzzle you by asking you where you are going to draw the line and an advocate of more experience will show the arbitrariness of the line proposed by putting cases very near it on one side or the other.”
In other words, sometimes you just have to call them as you see them.
Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are activists. But there is no magic right way to interpret terms like “free speech” or “due process” — or potato chip. Nor is either ideological camp wholly strict or wholly activist. Liberal judges tend to be expansive about things like equal protection, while conservatives read more into ones like “the right to bear arms.”
In the end, as Lord Justice Jacob noted, a judge can only look at the relevant factors and draw an overall impression. His common-sense approach was a rebuke not only to Procter & Gamble, but to everyone out there who insists that the only way to read laws correctly is to read them strictly.
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