“Group 1—Food The supply of anything comprised in the general items set out below, except— (a) a supply in the course of catering; and (b) a supply of anything comprised in any of the excepted items set out below, u n less it is also comprised in any of the items overriding the exceptions set out below which relates to that excepted item. General items Item No 1 Food of a kind used for human consumption. … Excepted items Item No … 2 Confectionery, not including cakes or biscuits other than biscuits wholly or partly covered with chocolate or some product similar in taste and appearance. … Items overriding the exceptions… 2 Drained cherries. 3 Candied peels… Notes: (1) “Food” includes drink. … (5) Items 2 and 3 of the items overriding the exceptions relate to item 2 of the excepted items; and for the purposes of item 2 of the excepted items “confectionery” includes chocolates, sweets and biscuits; drained, glac é or crystallised fruits; and any item of sweetened prepared food which is normally eaten with the fingers. …”
“4.6.3 Cereal and fruit bars Standard-rated items include compressed fruit bars, consisting mainly of fruit and nuts, and also sweet tasting cereal bars, whether or not coated with chocolate, with the exception of bars which qualify as cakes … Standard rating applies to any product falling within the general definition of confectionery even when that product is intended to meet the special nutritional needs of athletes.”
“The brand was inspired by the idea that healthy foods should be equally as delicious as every other snack out there”. “Our chocolate flavour is frequently compared to Ferrero Rocher which really does put a smile on our faces.” “Nouri is a new brand of healthy all-natural balls. They are vegan, sugar- and gluten-free while tasting really indulgent.” “Nouri…can be found in the mini bars of some of the top hotels in the world, alongside other popular treats.” “In the future, our goal is to be recognised as one of the main players in the confectionary market.”
“All our truffles are vegan, sugar free and gluten free but most certainly not free from temptation. What’s truly great about them is that they are enjoyed by everyone, whether that be those who are health conscious, dairy intolerant, vegan or just simply love seriously good tasting sweet snacks.”
“ NOURI HEALTHY BALLS BRIDGING THE GAP BETWEEN HEALTH AND INDULGENCE Nouri Health is a new brand of healthy, all natural balls. Our slogan 'nourish your body, indulge your soul' pretty much sums up our company ethos which surrounds the belief that we should all be able to eat delicious and indulgent foods whilst simultaneously giving our body all the nourishment it needs. Nouri brings you health and indulgence combined! We should all be able to indulge carefree, with the knowledge that what we are putting into our bodies is good for us. This very topic was the inspiration and drive behind the creation of nouri, a new range of vegan balls made with just a handful of simple ingredients. The idea is to give people a healthier yet equally delicious alternative to the standard truffles we usually find in confectionery isles. (sic) All our products are vegan, sugar free and gluten free without the addition of any artificial sweeteners. OUR VIRTUES SUGAR FREE, GLUTEN FREE, FULL OF INDULGENCE We found that many healthy treats taste very similar (concentrated with dates and other dry fruits) and leave you searching for something more satisfying with a proper sense of indulgence. That's why we decided that our number one focus with nouri was taste and we created our sugar free, vegan, gluten free balls, that taste really indulgent (no dates or fruits taste!). Now, available in 4 distinctive flavours.”
“Having examined the authorities, the tribunal in its decision set out the principles which it said it should apply. It is in the light of the authorities that it identifies these principles. This explains why the principles are far too elaborate. However within the principles it is possible to identify the right approach. This is set out at the start of the statement of the principles in these words (at p 15): '8.36 ... The words in the statute must be given their ordinary meaning. What is relevant is the view of the ord i nary reasonable man in the street.'[1997] STC 881 at 885 That is, what is the view of the ordinary person as to the nature of the product and whether or not the product is one which falls within the relevant category which here is that of a biscuit.”
“ [20] I should say a word about the tribunal's reference to the 'reasonable man'. It may come from this court's use of him in Ferrero . The issue was whether the product concerned was 'a biscuit' within the meaning of e x cepted item 2 of Sch 8 Group 1. The tribunal had used the test of 'what view would be taken by the ordinary man in the street, who had been informed as we have been informed' (see (1995) VAT Decision 13493 at para 8.50). This court accepted that approach. [21] To my mind this approach is saying no more than 'what is the reasonable view on the basis of all the facts'—it does not matter if some of the facts would not be known to the 'man in the street.' That is why the test accepted as proper in Ferrero adds 'who had been informed as we have been informed.' The uninformed view of the man in the street is deliberately not being invoked.”
“Furthermore, with reference to United Biscuits (UK) Ltd (No.2) (LON/91/160), we have had regard to the characteristics of the product (Jaffa Cakes) that were taken into account there. We think, however, that we should avoid treating the particular way in which that the Tribunal in that case chose to describe each aspect of a Jaffa Cake as if it were a description of principles to be applied in each and every case. It was the Tribunal's choice of description based on the product involved and the question that the Tribunal has to answer by reference to that product. Thus in any particular case a Tribunal may choose to focus upon and mention particular aspects of the product - its ingredients, texture, size, packaging and marketing - but we do not think that the choice of description in one case should be treated as decisive in another. Cakes and biscuits come in a wide variety of ingredients, textures, sizes and packaging and may be marketed in a number of different ways. The final decision in any particular case is likely to be a matter of impression based on any number of different combinations of those aspects (and possibly others) rather than just seeing how many ticks there are on the list in comparison to the number of ticks on the particular list compiled by another Tribunal in another case. ”
“ [14] Before going further, I have this general observation. This sort of question—a matter of classification—is not one calling for or justifying over-elaborate, almost mind-numbing, legal analysis. It is a short practical question calling for a short practical answer. The tribunal did just that. [15] In so stating I am saying no more than was said by Lord Woolf MR in Customs and Excise Comrs v Ferr e ro UK Ltd[1997] STC 881 at 884 : 'I commend the tribunal for the care which it took over this matter, but I am bound to say that, no doubt b e cause of the submissions which were made to it by the parties, the treatment of the issue which was before it, was far more elaborate than was necessary. I do urge tribunals, when considering issues of this sort, not to be misled by authorities which are no more than authorities of fact into elevating issues of fact into questions of principle when it is not appropriate to do so on an inquiry such as this. The tribunal had to answer one que s tion and one question only: was each of these products properly described as biscuits or not? … [19] I cannot see anything wrong, still less anything wrong in principle, with this. It was not incumbent on the tribunal in making its multi-factorial assessment not only to identify each and every aspect of similarity and di s similarity (as this tribunal so meticulously did) but to go on and spell out item by item how each was weighed as if it were using a real scientist's balance. In the end it was a matter of overall impression.”
“In paras 26, 27 and 29, the tribunal clearly directed themselves that for an item to be classified as confectionery for the purposes of excepted Item 2 and Note 5, its production must have involved (a) a process which can be recognised as cooking and (b) the addition to the primary ingredient of an extra element as sweetness. In my judgment, neither of those elements is a necessary condition for a product to be classified as confectionery. I accept the production of confectionery must involve some process applied to the ingredients in their natural state for that is necessarily implicit in the word. I do not consider that such process can only be one capable of being described as cooking. Any process of mixing or compounding is, in principle, sufficient. Similarly, I accept in its ordinary usage, confectionery is limited to products which can be described as sweet but I cannot see why such sweetness may not be inherent in the principal ingredient in its natural state but must be added by some further sweetener with which it is mixed or compounded. So far as I know, a stick of barley sugar does not involve any addition of further sweetness over and above its principal ingredient yet no one would doubt that it should be categorised as confectionery. It appears that in paras 26, 27 and 29, the tribunal erred in law in considering those two elements were essential to the categorisation of these fruit bars as confectionery.”
“36. … the principle of fiscal neutrality must be interpreted as meaning that a difference in treatment for the purposes of VAT of two supplies of services which are identical or similar from the point of view of the consumer and meet the same needs of the consumer is sufficient to establish an infringement of that principle. Such an infringement thus does not require in addition that the actual existence of competition between the services in question or distortion of competition because of such difference in treatment be established.”
“The Torq Bars' main competitors are the High 5 Energy Bar and Science in Sport GO-Bar, Powerbar Performance Bars and Maxim Energy Bars. Mr Hart said that the SiS GO-Bar and the High 5 Energy bar were zero-rated. In this respect we saw invoices showing that those products had been supplied at the zero-rate. Miss Taylor on behalf of the Commissioners objected to this evidence on the basis that it was not evidence of the VAT classification of these products. We accept that the invoices do not mean that these products were correctly supplied at that rate, save that the SiS GO-Bar has been subject to a previous decision of this Tribunal, to which we shall come.”