Are Pringles Crisps? The Court Of Appeal Decides...

On 20 May, the Court of Appeal handed down its judgment on one

of the most vexed legal questions of our time: are Pringles

crisps?

The answer, or at least as far as the Court of Appeal is

concerned, is yes. Good news for the taxman, who can continue to

charge VAT on the sale of Pringles. Bad news for those who

can't stop once they've popped.

Crisps are an exception to the general rule that VAT is not

charged on food (known as zero-rating). So it matters whether your

manufactured savoury snack product is in fact a crisp.

This is, however, not a case where Procter & Gamble, who

manufacture Pringles, would have been exposed to anything by way of

back taxes - in fact, Procter & Gamble were in line for a tax

rebate of up to £100m if HM Revenue & Customs' view

that Pringles are crisps was found to be incorrect.

The crisps category for VAT includes products that are similar

to potato crisps and made from the potato. Pringles only contain

around 40% potato. How should we decide whether that amounts to a

product made from potato and similar to crisps?

Pringles' advocate, arguing for zero-rating, claimed that

Pringles do not have the necessary quality of

"potatoness". The Court rejected this idea ("an

Aristotelian question"), and asked instead whether a

reasonable man on the street would conclude that Pringles are

similar to crisps and made from potato. Unfortunately for those who

like their savoury snacks cut into saddle shapes, the answer is

yes.

Despite detailed legal arguments about the fact that Pringles

contain ingredients other than potato, one judge thought the answer

to the crisps question was really very simple: "most children,

if asked whether jellies with raspberries in them were 'made

from' jelly, would have the good sense to say 'Yes',

despite the raspberries."

But things are never completely straightforward in the world of

VAT. The infamous Marks & Spencer chocolate teacakes litigation

(result: they're cakes not biscuits) ran for more than ten

years. So this may not be the end of the debate about crisps. This

latest decision in fact reverses a finding by the High Court (which

did not think that Pringles were crisps), and does not affect the

Pringles Dippers variety, which are not treated as crisps.

For manufacturers, it is clearly a concern that a product's

profitability can be affected by the complex VAT rules that apply

to food. For some, the actual design of their snacks might be

influenced by posing the all-important question: when...