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A color photograph of a white building with a neon sign that reads "Mexican Food" on the roof, next to a neon sombrero.
Sombrero Taco Shop, San Diego, California. John Margolies, photographer. 1979. Library of Congress, Prints and Photographs Division. https://hdl.loc.gov/loc.pnp/mrg.07097

As a Matter of Law, Is a Taco a Sandwich?

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We love writing about legal food fights on In Custodia Legis, as demonstrated by some of our earlier posts on topics such as Subway’s freshly baked cakes in Ireland, laws impacting Swedish cinnamon buns, and what qualifies as “gruyere” cheese in America. Today, we are bringing you more stories about litigation involving food.

On May 13, 2024, a judge in the Allen Superior Court in Indiana issued an order concluding that tacos and burritos are sandwiches in the eyes of the law. (Order at 10.) The case, Quintana v. Fort Wayne Plan Commission, arose from a zoning dispute involving a commercial developer named Quintana who wanted to open a Mexican restaurant on his property. Years earlier, in an effort to use his property for commercial purposes, Quintana, a homeowners association, and the local plan commission agreed in writing to several zoning restrictions. Relevant to the case, Quintana was restricted from having restaurants on the property, with one exception, allowing:

A sandwich bar-style restaurant whose primary business is to sell “made-to-order” or “subway-style” sandwiches (which by way of example includes, but is not limited to, “Subway” or “Jimmy John’s”, but expressly excludes traditional fast food restaurants such as “McDonalds”, “Arbys” and “Wendys”), provided that any such restaurant shall not have outdoor seating or drive through service. For the avoidance of doubt, the sale of alcoholic beverages is expressly prohibited upon the Real Estate.

In 2022, Quintana wanted to lease a space on his property to open a Mexican restaurant called Famous Taco. Concerned that operating this restaurant would violate the restrictions summarized above, he and the homeowners association amended their earlier agreement, adding language providing that Quintana “‘may operate a Famous Taco on the Real Estate subject to the conditions originally set out[.]” (Order at 3.) Quintana then presented this amendment and his plans for Famous Taco to the plan commission, which needed to give final approval for these modifications. The plan commission denied Quintana’s amendment, and Quintana appealed to the Allen Superior Court.

In its denial, the plan commission noted that the proposed amendment violated the earlier agreement’s prohibition against opening restaurants on the property. (Order at 5-7.) The Superior Court affirmed the plan commission’s decision rejecting Quintana’s amendment. (Order at 8-10.) The court further concluded, however, that the Famous Taco restaurant could properly operate on the premises under the earlier agreement because it would serve sandwiches. According to the court:

The proposed Famous Taco restaurant falls within the scope of the general use approved in the original Written Commitment. The proposed Famous Taco restaurant would serve made-to-order tacos, burritos, and other Mexican-style food, and would not have outdoor seating, drive-through service, or serve alcohol. The Court agrees with Quintana that tacos and burritos are Mexican-style sandwiches, and the original Written Commitment does not restrict potential restaurants to only American cuisine-style sandwiches. The original Written Commitment would also permit a restaurant that serves made-to-order Greek gyros, Indian naan wraps, or Vietnamese banh mi if these restaurants complied with the other enumerated conditions.

Graphic advertisement for tomatoes, with a giant tomato in the center, being climbed on by several men. The text around the tomato reads "Githens & Rexsamer Ripe Red Tomatoes For Sale Here."
Ripe red tomatoes for sale here. Samuel Loag, publisher. 1869. Library of Congress Prints and Photographs Division, http://hdl.loc.gov/loc.pnp/pga.11532

It is not unusual for a court to define and categorize foods. In Nix v. Hedden, the U.S. Supreme Court had to determine whether tomatoes “are to be classed as ‘vegetables’ or as ‘fruit,’ within the meaning of the Tariff Act of 1883.” The Court acknowledged that tomatoes are technically fruits, but held that they were considered vegetables under the act based on their common usage.

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

Nix v. Hedden, 149 U.S. 304, 307 (1893).

In Martinelli v. Department of Revenue, the Washington State Court of Appeals considered whether Martinelli’s sparkling apple juice should be considered a soda or fruit juice by the state for tax purposes. Martinelli argued in part that its product was more akin to a juice because, unlike most sodas, it contained no syrup. The Court of Appeals disagreed, holding that Martinelli’s products are subject to the same tax requirements as traditional sodas. The court’s opinion relied on the definitions in Washington’s “soda tax” statute, defining carbonated beverages as “any nonalcoholic liquid intended for human consumption which contains carbon dioxide, whether carbonation is obtained by natural or artificial means.” RCW 82.64.010(1).

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Comments (2)

  1. Only in the DC area do sandwich joints quote court opinions: the Space Bar in Falls Church, VA put up a sign that a taco is not a sandwich unless it’s their new taco-inspired grilled cheee sandwich.

  2. Technology has globalized the world, redefining things (e.g., communication, trade, tax law, etc.), so why not redefine “sandwich” in a globalized/international way?

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