With Wimbledon in full swing, Obiter’s mind turned naturally to the food synonymous with this annual sporting event.

Marks & Spencer has launched a limited-edition strawberries and cream sandwich. It may sound a little strange, Obiter did have to take a moment, but apparently the sandwich, on sweetened bread, is very popular in Japan. It recently went viral on social media site TikTok, according to someone much younger than Obiter and more abreast of these viral phenomena.

Traditional sandwiches – think your egg mayo, BLT and tuna – are zero-rated for VAT but M&S’s new sweet sandwich could make it liable for the standard 20% VAT.

M&S strawberry sandwich

M&S’ strawberries and cream sandwich has gone viral on TikTok

Source: M&S

It would not be too unusual according to VAT experts who have already spoken about the potential legal issue. In 1991, McVities and HMRC fought in the VAT tribunal over Jaffa Cakes (cake or biscuit). The court decided it was not a biscuit which impacted the VAT rate, as cakes are not taxed.

Let us not forget the Court of Appeal ruling earlier this year over ‘Mega Marshmallows’. The court remitted the case back to the First-tier Tribunal after it said the FTT had not determined if the larger marshmallows were ‘sweetened prepared food which is normally eaten with the fingers’. If it is, then it is considered confectionary and subject to standard-rate VAT. 

So, what of the new M&S sandwich? Will it be regarded as a staple food and exempt from VAT, or will the standard rate apply? Time will tell. Obiter will be watching the court lists even more closely than usual – in between Wimbledon that is.

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