Tuesday, June 2, 2009

Pringles Dispute Gives Lesson in Statutory Construction

In Britain, most foods are exempt from the value-added tax, but potato chips — known as crisps — and “similar products made from the potato, or from potato flour,” are taxable. Procter & Gamble, in what could be considered a plea for strict construction, argued that Pringles — which are about 40 percent potato flour, but also contain corn, rice and wheat — should not be considered potato chips or “similar products.” Rather, they are “savory snacks.”
The dispute went from an administrative tribunal to an appellate court and finally to the Supreme Court of Judicature. Adam Cohen, Editorial Observer - The Lord Justice Hath Ruled - Pringles Are Potato Chips - NYTimes.com, May 31, 2009 (print: June 1, 2009).

Adam Cohen recounts the dispute, which has some good, fun legal silliness (Procter & Gamble’s argued that to be taxable a product must contain enough potato to have the quality of "potatoness"). But he also uses it to make a point:
Conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more, while judges like Ms. Sotomayor are activists. But there is no magic right way to interpret terms like "free speech" or "due process" — or potato chip. Nor is either ideological camp wholly strict or wholly activist. Liberal judges tend to be expansive about things like equal protection, while conservatives read more into ones like "the right to bear arms."

In the end, as Lord Justice Jacob noted, a judge can only look at the relevant factors and draw an overall impression. His common-sense approach was a rebuke not only to Procter & Gamble, but to everyone out there who insists that the only way to read laws correctly is to read them strictly.

(The case is Procter & Gamble UK v Revenue and Customs Commissioners, Court of Appeal, Civil Division, [2009] All ER (D) 177 (May); [2009] EWCA Civ 407, decided 20 May 2009, available here. More comments at Law and Magic blog.)

Graphic: USDA Agricultural Research Service.

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