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New York law thinks a burrito is a sandwich

This is a burrito. In the state of New York, this is considered a sandwich.
This is a burrito. In the state of New York, this is considered a sandwich.
Boston Globe via Getty Images

On this holy day, National Sandwich Day, it's important to remember that New York City has a sandwich tax. That fact alone would be bad enough. But a look into the actual text of the sandwich tax law reveals a much deeper problem: New York defines "sandwich" in an absurd manner, one that includes everything from hoagies to burritos.

Here are the basics of the New York's dodgy definition of "sandwiches," and what, if anything, it means for you.

What is a sandwich?

For most practical Americans, a sandwich is a food object where one or more ingredients (usually vegetable, protein, or cheese, but sometimes ice cream) are placed in between pieces of bread or bread-like object (e.g. cookie).

Sandwiches predate Jesus. The first sandwich was reportedly created by Rabbi Hillel (around 110 B.C.) and consisted of herbs, apples, and nuts stuffed between two matzos. Centuries later, John Montagu a.ka. the fourth Earl of Sandwich, glamorized the art of putting two pieces of beef in between two slices of toasted bread. Sandwiches, according to PBS, first appeared in American cookbooks in 1816, and are now a fundamental staple of the American diet.

Now, some sandwiches are the kind you eat efficiently at your desk, the kind that don't ask for attention. Others are a feast themselves. They are given names better suited for a construction worker and feature Wagnerian blocks of steak and slabs of cheese — perfect for dulling the sting of this morning's hangover. And some are fancy, dressed with quivering dollops of delicate aiolis and scored with good mustard. In Maine, you'll find the lobster roll — possibly the best sandwich to ever feature a sea creature.

In New York, like most states, sandwiches are taxed. But as Reddit and WNYC's Noah Veltman pointed out, New York's definition is a bit odd.

What is New York's definition of a sandwich?

Blasphemy.  To give you a sense of how broad New York's definition of "sandwich" is, we've put together an interactive flowchart:

According to New York's Tax Bulletin ST-835, standard sandwiches like BLTs, chicken salad, and Italian hoagies are all subject to sales tax. That is fine. Those are classic sandwiches, usually delicious ones at that.

The bulletin goes into some deep cuts too, like croissant sandwiches (a.k.a. aggressive ways to start the morning) and the Reuben, a solid, sturdy standby.

The tax code takes a semi-controversial stand and includes open-faced sandwiches in the category. Mind you, open-faced sandwiches are only sandwiches in name and are, at their core, pizzas that didn't try hard enough.

But then things go wrong, so very quickly. Hot dogs and gyros are tossed into the sandwich category with no second thoughts as are wraps. But the most egregious transgression is the theory that burritos are sandwiches:

Screen_shot_2014-07-08_at_10.00.51_am

What the f—?

Right? Burritos are not sandwiches. Sure, they share some of the same elements and appeal — you can put a lot of different ingredients and items in both — but the same could be said of sushi rolls. And sushi rolls aren't considered sandwiches (though the state of New York might try to make that claim). In fact, burritos have more in common (the rice) with sushi rolls than they do with sandwiches.

The most definitive ruling on burritos v. sandwiches came in 2006, when a Massachusetts judge by the name of Jeffrey Locke ruled that burritos were not sandwiches. Locke presided over a complaint by Panera Bread that a Qdoba restaurant was encroaching on its turf and that the company's landlord promised not to lease out to a sandwich competitor.  Locke's main argument is that sandwiches are defined by their two pieces of bread (or bread-like object), and that burritos and their kin are assembled with one tortilla.

"As dictated by common sense, this court finds the term 'sandwich' is not commonly understood to include burritos, tacos, and quesadillas, which are are typically made with a single tortilla stuffed with choice filling of meat, rice, and beans," Locke wrote.

Kerry J. Byrne, a food and drinks writer for the Boston Herald since 1998, provided a an expert affidavit for the complaint. "I know of no one in the culinary industry who would consider a burrito to be a sandwich," Byrne said. "To put it anecdotally, nobody would say that they are going to the burrito shop to get a sandwich."

Even if you are a  burrito-is-a sandwich truther, the firmest piece of evidence you have may be flimsy. The USDA inspection guidelines do state that burritos are a "Mexican style sandwich-like product." But saying something is X-like, is not really definitive.

"I think you could call the burrito the original wrap, since that inspired the craze, so I guess the question would be do you think of a wrap as a sandwich?" Graham Bartlett, a spokesman for the D.C. Mexican restaurant El Centro told me. Bartlett is being kind.

He explained that there are actually Mexican sandwiches called tortas. "You will usually find [tortas] served on telera, which is Spanish for tile, and as such resembles a tile. Another popular bread is the bolillo, which is a more torpedo shaped bun that is crispy, light, and airy," Bartlett said.

With the existence of tortas and the different types of breads, it's clear that the burrito is it's own unique food object.

Why would New York do this?

Money. There’s no such thing as "tax-free." As far as the State is concerned, everything is subject to taxation until and unless it grants an exemption. And New York isn't the only one with broad laws, NPR explained.

Legislators at both the state and federal level have long used exemptions to play out some kinds of social-steering (e.g. the tax breaks married couples get or cigarette taxes). Sometimes, entire classes of goods are exempted because they’re considered essential staples to sustaining life and shouldn’t be any more expensive than they need to be (e.g. food and clothes).

But even within those categories, legislators have added exceptions to the exceptions, in order to prevent the initial exemption from swallowing the basic rule that "everything is taxable." The sandwich rule is one of those exceptions to the grocery exception. (Another, more significant rule that New Yorkers might be familiar with is the clothing/footwear sales tax that kicks in on items over $110.)

"A broad definition of sandwich means more sales tax, and that means more money to the state," a tax lawyer based in New York City told me. She wanted to remain anonymous because of the sensitivity of the subject.

This sandwich law is also one part of a larger conversation over the taxation of food and what we should and shouldn't tax. Some legislators and advocates feel like taxing certain foods is a burden on the poor (much of the debate over taxing fast food and sodas revolves around this).

In New York, the food we consider groceries are tax exempt. Canned goods, meats, vegetables, and anything someone has to prepare at home (or wherever they cook) are usually free from tax.

One way the state differentiates groceries from non-groceries foods is by determining if the food in question is either heated/cooked in the store or otherwise sold in a way that is different from the way it came into the store. Another way is by asking whether the food is eaten on the premises or consumed at home (i.e. groceries are consumed at home and not taxed). New York's tax website even has examples of what is and isn't taxed:

Example: A customer comes into your deli and orders a sandwich to go. In addition to the sandwich, the customer purchases a bottle of soda and a bag of pretzels. In this sale, the sandwich and the soda would both be subject to sales tax. You do not have to collect sales tax on the bag of pretzels because it is sold in the same form, condition, quantity, and packaging as it would normally be sold at a grocery store.


Because sandwiches can hit that grey area of heated/unheated and prepared/unprepared, broad tax laws where burritos are considered sandwiches are created.

"It's [the law] trying to stress the point that all sandwiches are generally subject to sales tax. That's the message you want to get across," a spokesperson from the Department of Taxation and Finance told Gothamist. "So if you're running a bodega in the Bronx or a grocery store in Queens or a small gas station in Buffalo, you have an understanding of what the law covers."

These tax codes aren't perfect and create strange situations where there's more of an incentive to buy Doritos, Twinkies, or Lunchables than there is to buy a freshly-prepared sandwich — an issue that's worth a separate story on its own.

I don't have to believe in this tax law definition, right?

Right. There are a lot of people living in this country who don't like taxes and big government but still pay them. Ergo, you paying a sandwich tax on a burrito doesn't mean you necessarily believe it is a sandwich.

And even if New York became cognizant of this egregious error and were to strike burritos from the sandwich tax, burritos most likely fall into other tax exceptions too.

Last question: What should I have for lunch?

Tacos. Always tacos.

Update: If you want to learn more about New York's bizarre sandwich law, in a weird twist of fate NPR's Planet Money has an excellent podcast out on the topic this week; I've been working on this piece for a few weeks, so the timing is purely coincidental. Great minds think alike!

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