“General Items Item No. 1. Food of a kind used for human consumption. […] Excepted items Item No. 4. Other beverages (including fruit juices and bottled waters) and syrups, concentrates, essences, powders, crystals or other products for the preparation of beverage. 4A. Sports drinks that are advertised or marketed as products designed to enhance physical performance, accelerate recovery after exercise or build bulk, and other similar drinks, including (in either case) syrups, concentrates, essences, powders, crystals or other products for the preparation of such drinks. […] Notes: 1. ‘Food’ includes drink.”
“(1) Foodstuffs (including beverages but excluding alcoholic beverages) for human and animal consumption; live animals, seeds, plants and ingredients normally intended for use in the preparation of foodstuffs; products normally used to supplement foodstuffs or as a substitute for foodstuffs;”
“[50] So far as we can discern, the legislation was exempting everyday items from tax, and preserving the tax on items of food which, broadly speaking, had previously been regarded as luxury; rather than promoting a particular drink or things to add to that drink. … [58] … Parliament has chosen to zero rate certain foods, generally because they were everyday foods, tax on which would be “particularly sensitive” for much of the population, and has chosen not to zero rate others.”
“Skinade is not intended to provide any nutritional benefit, and is instead engineered to stimulate physiological responses in the body in order to promote better skin. In addition, the label "collagen" is a very broad term (i.e. not indicating if it's been properly hydrolysed, the molecular weight, the source, the delivery mechanism, the type of collagen, the bio-availability etc.). For these reasons, we deliberately do not describe ourselves as a collagen supplement, as to do so would be misrepresenting skinade to both the medical professionals we work with and our customers.”
“In the arena of ingestible beauty products, collagen has long been recognized as the star player. Research shows that collagen is now the leading functional ingredient of beauty products in all regions of the world. Collagen peptides, in particular, have proven skin beauty benefits, contributing to a healthier, younger-looking skin and hair.”
“a multi- award winning, natural peach and mangosteen flavoured anti-ageing collagen drink containing a patent pending formulation of active ingredients that aims to boost your body’s natural production of collagen and hyaluronic acid. Skinade aims to improve the way your skin looks and feels in as little as 30 days”
“Skinade has been developed by leading UK scientists and is designed to provide a perfect ratio of liquid to active ingredients to create one of the most advanced, effective and bio-available anti-ageing skincare products on the market today. Skinade is an alternative approach to your skincare regime – a drink that promotes better looking skin from the inside out.”
“The tribunal went into this issue as to whether or not the two products in question were biscuits or not in great detail. It gave a lengthy and carefully worded decision citing a number of authorities and tried to identify what are the characteristics of biscuits and also, because of certain of the authorities to which it was referred, other products. I commend the tribunal for the care which it took over this matter, but I am bound to say that, no doubt because 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 question and one question only: was each of these products properly described as biscuits or not? If it had confined itself to that issue which is, and has to be, one of fact and degree, then the problems which subsequently arose would have been avoided.”
“[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. … [19] I cannot see anything wrong, still less anything wrong in principle, with [the tribunal’s approach]. It was not incumbent on the tribunal in making its multi-factorial assessment not only to identify each and every aspect of similarity and dissimilarity (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. All that is required is that 'the judgment must enable the appellate court to understand why the Judge reached his decision' (per Lord Phillips MR in English v Emery Reimbold & Strick Ltd[2002] EWCA Civ 605 at [19],[2002] All ER 385 at [19],[2002] 1 WLR 2409 ) and that the decision 'must contain … a summary of the Tribunal's basic factual conclusion and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts' (per Thomas Bingham MR in Meek v City of Birmingham District Council[1987] IRLR 250 ). It is quite clear how this tribunal reached its decision. In the words of Sir Thomas Bingham in Meek the parties have been told 'why they have won or lost' (see para 8). [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 excepted 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.”
“I have to consider whether an ordinary, educated Englishman, having seen and tasted the product and knowing what it is, would regard it as food. …. The capsules are of gelatins, which, if kept in the mouth long enough, dissolves; the contents include Royal Jelly and lactose; and there is somewhat unpleasant sweet flavour if one persists long enough and dissolves in the mouth the gelatins cover. Plainly the capsules are meant to be swallowed undissolved, with water. …. I find nutritive value unproven, I do not perceive a pleasant taste, and the qualities are far from food-like; and I regard a subjective belief of the consumer in goodness to be a very minor factor. The capsules do not satisfy hunger or please the palate. They do not look like food, taste like food, or fill the stomach like food; and, being swallowed normally with water, are not taken like food. In my view the capsules are clearly not food.”
“Collagen as a component of the connective tissues of meat is digested in the human alimentary tract and provides nutriment. The collagen is subjected by the manufacturers to various processes but the collagen casings are not synthetic or artificial because they are manufactured from the same chemical substance as traditional intestinal casings made from the gut of animals. These sausage casings are therefore manufactured products prepared by various chemical and physical treatments including the addition of permitted additive (E-460) designed to modify the texture. It is itself an edible substance and plays an important function in the functioning of the bowel. The collagen casings are used solely for the purpose of covering sausages, 75% of which are so treated in the United Kingdom market.”
“All in all the Tribunal cannot overlook the purpose for which Ortisan fruit cubes are sold and bought. Its intended effect is on the customer's bowel movements. The Tribunal has seen the cubes and tasted them and, putting itself in the position of the broad-minded VAT payer with the benefit of the same evidence as was present to it, the Tribunal has concluded that the Ortisan fruit cubes are not food of the kind used for human consumption. They are more a remedial preparation as opposed to a food.”
“The question I ask myself is whether an ordinary educated Englishman (or if one prefers, as in Brewhurst, a broad-minded VAT payer who has heard the evidence and tasted the product) would regard it as food. Applying this test as a matter of impression, I do not think that the tablets would be described as food…. I believe that an ordinary person would regard chlorella tablets in a similar way to vitamin tablets, no doubt good for you but not themselves food. I have been troubled about the logic that the Commissioners would regard the identical product in its natural form as food, but this follows from the form of the product being a relevant factor. If I am right, it would not be the only product to have a different VAT categorisation in different forms.”
“However, looking at the matter as a whole, we cannot find that the Algae fall within the zero-rating provisions. While sharing the reservations expressed in it, we adopt the reasoning in the extract from the Nature's Balance Ltd case quoted above. Even if the ordinary educated Englishman or broad-minded VAT payer had been instructed as Mr Perry would wish him to be instructed, we do not think that he would accept the Algae as food in the way in which he would accept sausage casings as food. A Californian Court might reach a different conclusion today. A UK Tribunal (not to mention Sainsburys) might reach a different conclusion in 50 or 100 years' time. Sitting here today, we must apply the natural and ordinary meaning of words as they are used here and now: on that basis, the appeal must fail.”
“The central question for us is whether a substance of a kind used for human consumption which is food for VAT proposes if sold in the ordinary course of a food retail sales business loses that character where, as here, it is sold by the practitioner who has "prescribed" it to his or her "patient" for its medicinal or therapeutic qualities. That one substance can be a food when supplied in one manifestation but not food when supplied in another is well established.”
“There is nothing in the wording of Group 1 of Schedule 8 that expressly or by implication requires a substance of a kind used for human consumption to be classified or excluded from being classified as food by reason of the means of supply or the purpose for which the supply is made. This in our view is hardly surprising; a purposive test would lead to distortions and inconsistencies of which the present would be an example were we to follow the argument advanced by the Commissioners. The proper approach, in our view, is to determine whether as a matter of ordinary usage of the English language the substance is food. Approached that way the answer must be that it is.”
“We consider this case to be very finely balanced. The factors which weighed most heavily with us were the presentation of the product and its nutritional value and each pointed us in a different direction. However we believe that if we had to choose one single determinative factor it would have to be the nutritional value of the product and on balance therefore we believe the product to be a food. We have to say that had the product not had such a high nutritional value we would probably have come to a different conclusion. We come back to Mr Smith's evidence that, increasingly, medical research is being used to promote the benefits of certain foods and the general public are being educated that certain foods are beneficial to certain medical conditions. It may well be that the broad minded VAT payer would have been attracted to the product for its therapeutic qualities but we believe that once he had taken it, and being aware of its nutritive qualities, he would feel that what he had taken was a food.”
“[58] In all cases involving classifications for VAT purposes there needs to be a multifactorial assessment. The way the product is marketed and sold is (as Ms Vicary accepts) a potentially relevant factor in every case. In some cases it may carry little weight, and in others it may carry great, or even dominant, weight as in Fluff and Kinnerton. The lack of clear distinction between "classification" cases and "dual use” cases is illustrated by the facts of this case: the items that make up the JCPs (i.e. fruit juices or smoothies) may be used as a beverage (for example for the reasons outlined in the Bioconcepts case) or they may be used as a meal replacement. While this is a classification issue, this involves a dual use in a similar way that the same underlying product (chocolate) could be eaten as a snack or as an ingredient in some other food.”
“107. Ms Linklater suggested that we should concentrate on the nature of the product itself and not on the packaging and marketing. We have taken into account the nature of the product. We acknowledge that bicarbonate of soda can be purchased as a bulk chemical and that the product itself might have several uses. However, in a case where a product might have various uses, it seems to us that the intended use of the product - as determined from the form of the packaging and the manner in which it is to be sold - is part of the facts and circumstances surrounding the supply that we should take into account in determining its classification. Those circumstances demonstrate to us that in this case the bicarbonate of soda was being supplied as a baking ingredient. Although it is clearly possible that the product could be purchased by any given ultimate consumer for other uses, the objective facts surrounding this supply suggest that the typical consumer would purchase the product for baking. 108. Ms Linklater stated that there was no authority for the proposition that the classification of a product for VAT purposes can change depending on its intended use. The implication was that the classification of a supply cannot depend upon its intended use. We disagree with that conclusion. We acknowledge that legal certainty demands that the classification of a supply cannot turn on the subjective intentions of a particular consumer of the supply. However, in considering whether this particular supply meets the criteria for the classification in question, we are required to form “the reasonable view on the basis of all the facts”
“ [25] … it should be observed that, as the Advocate General essentially observes in points 18, 19 and 27 of his Opinion, all products containing nutrients which serve as building blocks, generate energy and regulate its functions, which are necessary to keep the human body alive and enable it to function and develop, and which are consumed for the purposes of providing it with those nutrients, are in principle ‘foodstuffs for human consumption’. [26] Since that nutritional role is a decisive factor for a product to be classed as a ‘foodstuff for human consumption’, according to the usual meaning of those words in everyday language, the question whether that product has health benefits, its ingestion entails a certain pleasure for the consumer or its use is part of a certain social context, is irrelevant. Consequently, the circumstance that consumption of that product has positive effects on the libido of the person ingesting it is irrelevant in that respect.”
“38. It is well established that zero-rating provisions must be interpreted strictly because they constitute exemptions to the general principle that all supplies of goods and services for consideration by a taxable person should be subject to VAT. They should not, however, be interpreted so strictly as to deprive the exemption of its intended effect. As stated by Lord Kitchin in SAE Education at para 42: "In accordance with well-established principles, the terms used in articles 131 to 133 to specify exemptions from VAT must be construed strictly. Nevertheless, they must also be construed in a manner which is consistent with the objectives which underpin them and not in such a way as to deprive them of their intended effects." See also Werner Haderer v Finanzamt WilmersdorfCase C-445/05 ,[2008] STC 2171 , para 18. 39. The need for strict interpretation is particularly marked where, as in this case, it does not involve mandated EU exemptions, but rather national law exceptions tolerated by EU law within the constraints of the EU standstill provision. As explained by the Advocate General in Talacre Beach, national exceptions must be “interpreted narrowly” (para 17) and, because they are not directed at the same objectives as EU mandated exemptions, “it is necessary to take particular care that the exceptions are not extended” (para 42). The need for a strict interpretation was endorsed by the CJEU (para 23).”
“Under those circumstances, any product intended for human consumption which provides the human body with the nutrients necessary to keep the human body alive and enable it to function and develop comes within the scope of the category set out in point 1 of Annex III to the VAT Directive, even if the consumption of that product also aims to produce other effects. By contrast, a product which does not contain nutrients or contains a negligible amount thereof, the consumption of which serves solely to produce effects other than those necessary to keep the human body alive and enable it to function and develop, cannot fall within the scope of that category.”
“The question of a word's meaning is normally to be answered directly, not by rushing to dictionaries, or by searching the Internet for substitute words and expressions, or by the use of a non-statutory checklist; or by recourse to Hansard, or by working through a range of hypothetical situations. In the case of an ordinary word, where the legislature has chosen not to give it any special meaning, it is inappropriate for the courts to define it and lay down its meaning as a rule of construction. For example it has been said that a word like necessarily is a 'linguistically irreducible' word which judges should not replace with a synonym or paraphrase. As Lord Bingham put it in Jennings v Crown Prosecution Service: ''There is a real danger in judicial exegesis of an expression with a plain English meaning, since the exegesis may be substituted for the language of the legislation.''”
“[17] It seems to me that the meaning of the words must take colour from the context in which they are used and, in particular, what is at issue here is the supply of animal feeding stuffs. It seems to me whether or not an edible substance is animal feeding stuffs is in large part answered by the way in which it is sold or supplied. I put it to Mr Storey that if his approach is right a straw boater, which of course is edible, would itself be animal feeding stuffs and therefore the supply of boaters would be zero rated under this legislation. He accepts that that is the inevitable conclusion of his submission. I do not accept that is the right approach to these words: it is not what the words mean. It seems to me that what counts is whether what is being supplied can properly be described as animal feeding stuffs. In deciding that one must look not just at the nature of the material but the way in which it is supplied. These maggots are not supplied as a foodstuff for fish; that is to say, for the purpose of feeding and growing fish. These maggots are sold for use in enticing fish towards hooks. [18] In my view, on any reasonable basis, the supply of packets of maggots, in the way in which it is done by the appellant, is not the supply of animal feedstuffs at all. In my view the conclusion arrived at by the Tribunal is right. This does not come within General Items (2) and therefore the supply of these goods is not zero rated.”
“For the purposes of this Regulation, ‘food’ (or ‘foodstuff’) means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans.”