Ice magic: a tribunal has ruled the Snowball is officially a biscuit. Photo: Corbis
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Felicity Cloake: Let the Gingerbread Man go naked . . . and save us some tax

A court has ruled that the Snowball is a cake, not a biscuit, and is exempt from tax. It’s not the first snack to wriggle out of extra charges. 

Stop the presses! Hold the front page! On 27 June, Scotland’s first-tier tax tribunal ruled that the Snowball, that gloriously gooey, chocolate-coated, coconut-dusted marshmallow confection, is officially a cake, rather than a biscuit.

This may seem a trivial matter, especially if you live south of the border, where the Snowball’s coconut-free cousin the teacake is the better known, but I can assure you it is not. Cakes, unlike chocolate biscuits, are exempt from VAT, which means that the decision was worth £2.8m in back tax for the two Lanarkshire bakers that brought the appeal. A sweet victory indeed.

It was the little details of the judging process I particularly enjoyed: as well as the usual legal pleas, the judges were presented with a plate “comprising a number of confections including one each of a Jaffa Cake, Mr Kipling Bakewell tart, Waitrose meringue, a tea cake manufactured by each appellant, a Lees Snowball and a mini jam Snowcake”.

These were apparently tasted “in moderation”, leaving the pair with tellingly “sticky fingers” of the sort one might end up with when eating “a cake such as a vanilla slice”.

The Snowballs were found to have other significant cake-like characteristics – including an inherent unsuitability for consumption on the hoof. The tribunal was in agreement that “most people would prefer to be sitting when eating a Snowball and possibly, or preferably . . . with a plate, a napkin or a piece of paper or even just a bare table so that the pieces of coconut which fly off do not create a great deal of mess”.

You may recall McVitie’s won similar recognition for its Jaffa Cakes in 1991 by baking a giant 12-inch version to prove its point, while M&S spent 13 years fighting for its chocolate teacakes to be recognised as cakes, rather than the chocolate biscuits the taxman claimed them to be. (A few grams of chocolate can make a good deal of difference: a gingerbread man can have chocolate chip eyes and still retain his zero rating, but if he sports fancy chocolate buttons, he’ll be taxed for his vanity.)

Why cakes and plain biscuits (and, oddly, chocolate body paint) should still be regarded as essential foodstuffs in the face of a swelling obesity crisis is a mystery, but it’s not the only absurdity of the 41-year-old value added tax. Frozen foods are exempt unless they’re designed to be eaten in a frozen state – which makes a baked Alaska tax-free, while the poor old Arctic roll is not.

Potato-based savoury snacks are taxed while tortilla chips, vegetable crisps and Twiglets are zero-rated. (I use the phrase potato-based advisedly: Pringles, which are less than 50 per cent potato, lost their appeal; they are, for tax purposes anyway, officially potato crisps.)

Tapioca-based prawn crackers are considered an essential foodstuff but those made from other cereals are a luxury – though if they’re served in a restaurant they’ll be taxed regardless of what they’re made from. If you get them with your takeaway, however, they’ll almost certainly arrive cold, meaning you don’t have to pay tax on them, which seems fair.

And on the subject of takeaways, who can forget 2012’s Pastygate affair, when outraged sausage-roll lovers forced the Chancellor to back away from his attempts to simplify their taxation?

Admittedly, we’re not the only country whose tax system invites mockery; more than one US state taxes pumpkins differently depending on whether they’re destined to become a dessert or a decoration, which may finally explain the curious American taste for pumpkin pie.

But much as I love the Snowball and its squidgy, sticky, debatably cakey cousins, I’m not sure they deserve a tax break. Let us all eat cake – but let us pay for it, too.

Next week: John Burnside on nature

Felicity Cloake is the New Statesman’s food columnist. Her latest book is The A-Z of Eating: a Flavour Map for Adventurous Cooks.

This article first appeared in the 08 July 2014 issue of the New Statesman, The end of the red-top era?

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I worked as a teacher – so I can tell you how regressive grammar schools are

The grammars and "comprehensives" of Kent make for an unequal system. So why does Theresa May consider the county a model for the future?

In 1959 my parents moved me from a Roman Catholic primary school to the junior branch of King Henry VIII, Coventry’s most high-profile grammar. The head teacher berated my mother for betraying the one true faith, but although she was born in Galway, my mum was as relaxed about her religion as she was about her native roots. Any strong feelings about the English Reformation had disappeared around the same time as her Irish accent. Her voice gave no clue to where she was from and – as a result of a wartime commission – the same was true of my father. Together, Mrs and Mr Smith embodied postwar Britain’s first-generation upwardly mobile middle class.

Their aspiration and ambition were so strong that my mother saw no problem in paying for me to attend a Protestant school. Why, you may ask, did my dad, a middle manager and by no means well off, agree to pay the fees? Quite simply, my parents were keen that I pass the eleven-plus.

King Henry VIII School benefited from the direct grant scheme, introduced after the Education Act 1944. In Coventry, the two direct grant schools were centuries old and were paid a fee by the government to educate the fifth or so of boys who passed the eleven-plus. When secondary education in Coventry became comprehensive in the mid-1970s, King Henry VIII went fully independent; today, it charges fees of more than £10,000 per year.

A few years ago, I returned to my old school for a memorial service. As I left, I saw a small group of smartly dressed men in their late seventies. They had strong Coventry accents and intended to “go down the club” after the service. It occurred to me that they represented the small number of working-class lads who, in the years immediately after the Second World War, were lucky enough to pass the eleven-plus and (no doubt with their parents making huge sacrifices) attend “the grammar”. But by the time I moved up to King Henry VIII’s senior school in 1963 there appeared to be no one in my A-stream class from a working-class background.

From the early 1950s, many of the newly affluent middle classes used their financial power to give their children an advantage in terms of selection. My parents paid for a privileged education that placed top importance on preparation for the eleven-plus. In my class, only one boy failed the life-determining test. Today, no less than 13 per cent of entrants to the 163 grammar schools still in the state system are privately educated. No wonder preparatory schools have responded enthusiastically to Theresa May’s plans to reverse the educational orthodoxy of the past five decades.

Nowhere has the rebranding of secondary moderns as “comprehensives” been more shameless than in Kent, where the Conservative-controlled council has zealously protected educational selection. Each secondary modern in east Kent, where I taught in the 1970s, has since been named and renamed in a fruitless attempt to convince students that failing to secure a place at grammar school makes no difference to their educational experience and prospects. That is a hard message to sell to the two-thirds of ten-year-olds who fail the Kent test.

Investment and academy status have transformed the teaching environment, which a generation ago was disgraceful (I recall the lower school of a secondary modern in Canterbury as almost literally Edwardian). Ofsted inspections confirm that teachers in non-grammar schools do an amazing job, against all the odds. Nevertheless, selection reinforces social deprivation and limited aspiration in the poorest parts of the south-east of England, notably Thanet and the north Kent coastline.

A third of children in Thanet live in poverty. According to local sources (including a cross-party report of Kent councillors in 2014), disadvantaged children make up less than 9 per cent of pupils in grammar schools but 30 per cent at secondary moderns. University admissions tutors confirm the low number of applications from areas such as Thanet relative to the UK average. Though many of Kent’s secondary moderns exceed expectations, the county has the most underperforming schools in the UK.

When I began my teaching career, I was appallingly ignorant of the harsh realities of a secondary education for children who are told at the age of 11 that they are failures. Spending the years from seven to 17 at King Henry VIII School had cocooned me. More than 40 years later, I can see how little has changed in Kent – and yet, perversely, the Prime Minister perceives the county’s education system as a model for the future.

This article first appeared in the 22 September 2016 issue of the New Statesman, The New Times