Jaffa Cakes

Jaffa Cakes are a cake introduced by McVitie and Price in the UK in 1927 and named after Jaffa oranges. In their most common form, Jaffa cakes are circular, 2+1/8 in in diameter, and have three layers: a Genoise sponge base, a layer of orange-flavoured jam, and a coating of chocolate. Each cake is 46 calories. Jaffa Cakes are also available as bars or in small packs, and in larger and smaller sizes.[1] The original Jaffa Cakes now come in packs of 10, 20, 30, or 40, having been downsized in 2017 from 12 or 24 per pack.[2]

Because McVitie's did not register the name "Jaffa Cakes" as a trademark, other biscuit manufacturers and supermarkets have made similar products under the same name.[3] The product's classification as a cake or biscuit was part of a VAT tribunal in 1991, with the court finding in McVitie's favour that Jaffa Cakes should be considered cakes and not biscuits for tax purposes.[4] In 2012 they were ranked the best selling cake or biscuit in the United Kingdom.[5]

History

Jaffa Cakes were first produced by the British biscuit company McVitie & Price in 1927.[6][7][8] McVitie & Price named them Jaffa Cakes after Jaffa oranges, a popular variety of orange in Britain at the time.[9][7] However, the jam for Jaffa Cakes was made from apricot jam and tangerine oil.[7][10] According to the chef and food author J. P. McMahon, the reference to Jaffa oranges was chosen to evoke their sweet taste and Mediterranean origin.[11] The name was not trademarked and has since become a generic term, allowing other manufacturers to create similar products under the same name.[12]

With the rationalisation of McVitie & Price's production throughout World War II, its range of biscuits fell from 370 to just 10 by 1945,[13] and Jaffa Cakes stopped being produced.[14] During this time, McVitie & Price collaborated closely with rival biscuit makers MacFarlane Lang, and the two companies merged in 1948 to form United Biscuits. During the 1950s, Jaffa Cakes were reintroduced and began to be mass produced, with more than 10,000 tins produced daily.[13]

Starting in 1967, McVitie's increased the prominence of its name on Jaffa Cakes branding to create a master brand to boost sales of its less popular biscuits. At the time, McVitie's Jaffa Cakes was one of the top six brands of biscuits in the UK.[15] In the 1970s, the company introduced a cartoon character called McV to advertise Jaffa Cakes to children.[16] It was featured in TV advertisements with other cartoon characters including munchkins[17] and in special promotions like tie-in T-shirts.[16] Other adverts at the time included one featuring Victor Spinetti as a Mexican bandit and Jaffa Cakes thief.[18][19]

Burton's Biscuits began selling a competing brand of Jaffa cakes in the early 1960s. In 1991, after the release of lemon and lime flavour Jaffa Cakes by Burton's, United Biscuits sued Burton's for "passing off" its Jaffa Cakes as McVitie's due to their similar packaging.[20] The judge dismissed survey evidence presented by McVitie's and they lost the case.[21][22] According to the ruling, the only distinctive element of their Jaffa Cakes packaging was the McVitie's logo, which Burton's had not copied.[22] In 1994, a new orange peel themed Jaffa Cakes logo was designed for McVitie's by Design Bridge.[23] The design was more distinctive compared to the previous generic typeface and allowed McVitie's to trademark the logo.[24]

Later in 1991, Inland Revenue challenged Jaffa cakes' legal status as a VAT-free cake, arguing that they were marketed as chocolate-covered biscuits and should therefore be subject to VAT. McVitie's defended Jaffa cakes' legal status as a cake in a VAT tribunal and—despite their recent legal dispute—Burton's sent their own experts to assist with the case.[25][26] The tribunal ruled that Jaffa cakes were legally cakes. During the case, McVitie's produced a 12-inch Jaffa Cake to show that a Jaffa Cake's size is irrelevant to its status as cake,[27][28][29] and famously argued that cakes harden as they go stale while biscuits go soft.[6][30] The judge also listed multiple other considerations. The case was widely covered, and mocked, in the national newspapers.[31]

McVitie's Jaffa Cakes

Classification and taxation

In the United Kingdom, value added tax (VAT) is payable on chocolate-covered biscuits, but not on cakes of any kind.[46][47] When VAT was introduced in 1973, Jaffa Cakes were treated as cakes for the purpose of VAT, but this classification was challenged by HM Customs and Excise in 1991 who argued that Jaffa Cakes should be taxed as chocolate-covered biscuits.[47]

A tribunal was held to decide how Jaffa Cakes should be legally classified for VAT. The presiding judge, Donald Potter, considered the "ordinary meaning" of the word cake, rejecting any consideration of the purpose of VAT legislation in determining what would count as a cake. The court also discounted expert evidence, as it went "beyond the capacity of an ordinary purchaser". Potter concluded that while there is no strict dividing line between cakes and biscuits in ordinary language, and while Jaffa Cakes had characteristics of both cakes and biscuits, they had "sufficient characteristics of cakes to qualify as cakes" and hence to be zero rated for VAT.[48] The ruling was based on the following criteria:[47]

According to Christopher Mark Hutton, the decision prioritised the material properties of the Jaffa Cake (its ingredients and composition) over social factors such as its packaging and marketing.[48] Ross Charnock analysed the case as focusing on stereotypical features of cakes rather than comparison to prototypical examples.[49]

The tribunal has been viewed by tax experts as an example of the complexity and market distortions arising from multiple tax levels and the use of ambiguous categories.[50][51] It has been cited as an example of expensive litigation resulting from different tax rates for similar products.[52][53] It spawned further legal disputes, in particular Marks & Spencer argued that it should be refunded VAT it paid on its chocolate teacakes.[54][30] It has also been used as an example of arbitrary distinctions in tax law and the "absurd tests" that need to be used when there is not an underlying policy purpose or principle to different tax rates.[46]

The debate over classification has aroused interest from philosophers like Tim Crane who view it as an example of how concepts relate to reality. Crane argues that the classification of Jaffa Cakes is more than a matter of definition, and relates to their essential features, which he agrees are cake-like.[55] By contrast, Cristian Constantinescu argues the question is indeterminate,[56] and Tim Juvshik states that their classification is a matter of stipulation and social convention.[57] Roy Sorensen cites the case as an example of vagueness forcing judges to answer unanswerable questions.[58] Others argue that a binary dichotomy is problematic and Jaffa Cakes are neither cake nor biscuit, but something in-between.[55][59]

The Irish Revenue Commissioners also classify Jaffa Cakes as cakes, since their moisture content is greater than 12%. As a result, they are charged the reduced rate of VAT (13.5% as of 2016).[60]

• The product's name was regarded as a minor consideration.
• The ingredients were regarded as similar to those of a cake, producing a thin cake-like mixture rather than the thick dough of a biscuit.
• The product's texture was regarded as being that of a sponge cake.
• The product hardens when stale, in the manner of a cake.
• A substantial part of a Jaffa Cake, in terms of bulk and texture, is sponge.
• In size, a Jaffa Cake is more like a biscuit than a cake.
• The product was generally displayed for sale alongside other biscuits, rather than with cakes.
• The product is presented as a snack and eaten with the fingers, like a biscuit, rather than with a fork as a cake might be. The tribunal also considered that children would eat them in a few mouthfuls, in the manner of a sweet.

Other brands

See also

• List of cakes