VFOOD6260 - Excepted items: Confectionery: The bounds of confectionery, sweets, chocolates, chocolate biscuits, cakes and biscuits: The borderline between cakes and biscuits

The significance of the borderline between cakes and biscuits is that a cake is zero-rated even if it is covered in chocolate, whereas a biscuit is standard-rated if wholly or partly covered in chocolate or some product similar in taste and appearance. As set out in the paragraphs above, there is no generally accepted definition of either cake or biscuit, but the distinction is usually clear in practice.

The leading case on the borderline is that concerning Jaffa cakes: United Biscuits (LON/91/0160). Customs and Excise had accepted since the start of VAT that Jaffa cakes were zero-rated as cakes, but always had misgivings about whether this was correct. Following a review, the department reversed its view of the liability. Jaffa cakes were then ruled to be biscuits partly covered in chocolate and standard-rated: United Biscuits (as McVities, one of the largest manufacturers of Jaffa cakes) appealed against this decision. The Tribunal listed the factors it considered in coming to a decision as follows.

• The product’s name was a minor consideration.
• Ingredients: Cake can be made of widely differing ingredients, but Jaffa cakes were made of an egg, flour, and sugar mixture which was aerated on cooking and was the same as a traditional sponge cake. It was a thin batter rather than the thicker dough expected for a biscuit texture.
• Cake would be expected to be soft and friable; biscuit would be expected to be crisp and able to be snapped. Jaffa cakes had the texture of sponge cake.
• Size: Jaffa cakes were in size more like biscuits than cakes.
• Packaging: Jaffa cakes were sold in packages more similar to biscuits than cakes.
• Marketing: Jaffa cakes were generally displayed for sale with biscuits rather than cakes.
• On going stale, a Jaffa cake goes hard like a cake rather than soft like a biscuit.
• Jaffa cakes are presented as a snack, eaten with the fingers, whereas a cake may be more often expected to be eaten with a fork. They also appeal to children, who could eat one in a few mouthfuls rather like a sweet.
• The sponge part of a Jaffa cake is a substantial part of the product in terms of bulk and texture when eaten.

Taking all these factors into account, Jaffa cakes had characteristics of both cakes and biscuits, but the tribunal thought they had enough characteristics of cakes to be accepted as such, and they were therefore zero-rated.

An earlier case, that of Adams Foods Ltd (MAN/83/0062) which concerned Chocolate Dundees, a traditional type of shortcake with a chocolate base and individually wrapped for sale, came to the opposite conclusion. The decision contains a useful, if technical, table of comparative differences between cakes and biscuits, provided by an expert witness, and the tribunal was unable to see any factors supporting a view of the product as cake. It was ruled to be a biscuit partly covered in chocolate and accordingly standard-rated.