Items benefiting from the relief: What is food?: Food of a kind used for human consumption: What is
There is no definition of the term food in VAT law. In such circumstances it is a general legal principle that the word is interpreted according to its normal and everyday meaning.
This principle was illustrated in the House of Lords case of Brutus v Cozens (1972 All ER 1297) involved construing the word insulting in relation to a public order offence. In his judgement, Lord Reid said:
… the meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word being used in an unusual sense. It (the word) appears to me to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved… no doubt a statute may contain a definition - which incidentally often creates more problems than it solves - but the purpose of a definition is to limit or modify the ordinary meaning of a word and the court is not entitled to do that.
In the early tribunal case of Marfleet Refining Co Ltd (LEE/73/0033), which considered whether cod liver oil products were eligible for zero-rating as food, the tribunal established that this general principle applied to the word food in the zero rate schedule, finding that the word was being there used in its everyday meaning. It therefore became the job of the tribunal to decide (in the words of Judge Medd in the case of Ayurveda Ltd (LON/88/1372X)) whether, in the whole circumstances of the case, the word “food” as a matter of ordinary usage of the English language covers … the product in the light of the facts that have been proved. That case also provided guidance on determining this ordinary and everyday meaning of food, the tribunal seeing it as dependent on how an ordinary Englishman, having seen and tasted the product and knowing what we know about it would … regard it.
Subsequent tribunals have broadly followed this line. In MacPhie & Co (Glenbervie) Ltd (EDN/91/0047) the tribunal held that food should be interpreted in line with how… the ordinary man would view this product, duly instructed as to its contents and method of use. This approach (also used in the case of Devro Ltd (EDN/91/0259), heard by the same Chairman) was accepted as valid by the Court of Session at appeal.
However, in the case of Brewhurst Health Food Supplies (LON/91/2488X) the tribunal did query whether the ordinary Englishman would be the best guide to borderline problems, given the difficulty of some of the questions raised, and opted instead for a broad-minded VAT payer.