VFOOD6140 - Excepted items: Confectionery: The bounds of confectionery, sweets, chocolates, chocolate biscuits, cakes and biscuits: Extension of what is confectionery by Note 5
Decided cases
A number of court cases have mainly concerned themselves with the extension of the word confectionery provided by Note 5 which states: Note (5)… for the purposes of item 2 of the excepted items “confectionery” includes chocolates, sweets and biscuits; drained, glace or crystallised fruits; and any item of sweetened prepared food which is normally eaten with the fingers.
A common misconception is that this note sets down a definition of confectionery. However, as the wording of the note states, it is an extension of what confectionery includes and not an exhaustive definition.
Normally eaten with the fingers has not generally caused much dispute. In general, it would apply to any product eaten with the fingers, whether or not from a packet, and regardless of whether, say, the product needs to be squeezed out of the packet or have the packet peeled off. The paradigm distinction is against items that genuinely require cutlery to be consumed. The Unibev Tribunal (V.18437) is one of the most detailed in discussing this point.
The term sweetened has been discussed by numerous tribunals. The leading, and most often quoted cases, are:
- W Jordans (V.3275)
- Science in Sport (V.17116)
- Organix (V.19134)
- Premier Foods (V.20072).
The focus in these was ostensibly on whether an ingredient had been added to the ingredients of a food item (commonly, a cereal bar) with the intention of making the basic ingredients sweeter than they already were. The prime example of that position was the Jordans case, where the manufacturer used honey to bind the ingredients of a cereal bar. Science in Sport, though, gave a decision that slightly countered that of Jordans by allowing zero rating for a bar that was bound with concentrated grape juice. The decision was influenced by the choice of grape juice as a less sweet alternative to other bindings, and because grape juice was less sweet than the dried fruit ingredients that made up part of the bar.
Organix was decided similarly to Science in Sport in that a cereal bar bound with fruit juice concentrates was zero-rated because it was unsweetened. The tribunal considered that the lack of added processed sugars or artificial sweeteners was important.Summary
It is important to remember that Note 5 extends the definition of what is confectionery and is not a definition. Secondly, following the decisions in the case of Premier Foods (see VFOOD6120 and VFOOD7020) and Bells of Lazonby (V.20490), it is necessary to ask whether the item involved is confectionery per se and should be classified as confectionery regardless of whether it has been sweetened or not.
The tribunal hearing the Bells of Lazonby Ltd case decided that a cereal bar which was not sweetened was an item of confectionery per se. In doing so, the tribunal relied upon the comments of Sir Andrew Morritt in his Premier Foods decision.