Constructing the Sandwich

By Alexander Park

Introduction

What is a sandwich? Most people never stop to ask themselves this question. After all, the answer seems almost too obvious—two slices of bread with meat, cheese, or some sort of filling between the two slices of bread. In recent years, this question has been in the popular media’s spotlight. One question, in particular, is whether a hot dog is a sandwich. Merriam-Webster kicked off this modern debate by declaring that a hot dog is a sandwich.^[1] Merriam-Webster defines a “sandwich” to be “two or more slices of bread or a split roll having a filling in between” or “one slice of bread covered with food.”^[2] Justice Ruth Bader Ginsburg even weighed-in on the topic, stating that under Stephen Colbert’s definition of a “sandwich,” a hot dog is indeed a sandwich.^[3]

The curiosity does not stop at just hot dogs. Many have wondered whether two slices of pizza stacked together, a bread bowl, a Hot Pocket, or a wrap qualify as sandwiches.^[4] While this debate is humorous and genuinely piques the interests of foodies, the simple question of what defines a sandwich has made its way into a legal context. The lack of a precise definition for a “sandwich” is particularly important in the context of restrictive covenants, for example, exclusivity clauses and non-compete agreements.^[5] Food retailers may include such restrictive covenants on their leases; limiting the types of food establishments that can be built and operated in their vicinity. In fact, that was the issue in White City Shopping Ctr., LP v. PR Restaurants, LLC, where the decision hinged upon the definition of a sandwich.^[6]

Is the Burrito a Sandwich?

In White City Shopping Ctr., LP v. PR Restaurants, LLC, PR Restaurants (“PR”), the operator of twenty-two Panera Bread (“Panera”) restaurants, sought a preliminary injunction against White City Shopping Center (“White City”).^[7] PR alleged that White City violated the exclusivity clause of their commercial lease by entering into discussions with Chair 5 Restaurants (“Chair 5”) to lease a commercial space for a Qdoba restaurant.^[8] PR’s lease stated, in relevant part, “[l]andlord agrees not to enter into a lease, occupancy agreement or license affecting space in the Shopping Center . . . for a bakery or restaurant reasonably expected to have annual sales of sandwiches greater than ten percent (10%) of its total sales . . . .”^[9] The lease did not define “sandwiches,” and thus, the court was left to decide whether White City violated the lease by entering discussions with Qdoba; purveyor of Mexican-style food products, such as burritos, quesadillas, and tacos.

Ambiguity Exists in the Legal Definition

In the court’s view, “sandwiches” is not an ambiguous term.^[10] It relied on a dictionary definition, “‘two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them,’” as well as, “common sense” to find that the type of food made by Qdoba is not a “sandwich.”^[11]

However, there does seem to be some ambiguity as to what the exact definition of a sandwich is. In a memorandum to support PR’s request for injunctive relief, “sandwich” was defined as, “‘food consisting of filling placed upon one slice or between two or more slices of a variety of bread or something that takes the place of bread (as a cracker, cookie, or cake).’”^[12] Further, the attorneys argued that based upon that definition, tacos, burritos, and quesadillas, “are all sandwiches because they are all food that consists of bread folded around fillings.”^[13] Yet, as noted by Marjorie Florestal, the above-mentioned definitions—one adopted by the court and the other offered by PR—are actually the two definitions proffered by New Webster Third International Dictionary.^[14]

Thus, as can be seen from these two definitions, there remains ambiguity that has yet to be resolved. Questions—such as; whether two pieces of bread are required, what type of filling has to be between the bread or on top of the bread, and even how much filling is needed—still exist when comparing the two definitions.

Other Legal Definitions Do Not Resolve the Ambiguity

The United States Department of Agriculture’s (“USDA”) “Food Standards and Labeling Policy Book,” provides some guidance on what should and should not be considered a “sandwich.”^[15] It states, “[t]ypical ‘close-faced’ sandwiches consist[] of two slices of bread or the top and bottom section of sliced bun that enclose meat or poultry.”^[16] It also distinguishes between closed and open-faced sandwiches, indicating that both are considered “sandwiches.”^[17] Further, it also describes burritos and fajitas as “sandwich-like,”^[18] hamburgers and frankfurters as “sandwich type[s],”^[19] and strombolis as not a “traditional sandwich.”^[20]Thus, food items that are more difficult to characterize as sandwiches are labeled as “sandwich-like” or “sandwich type,” indicating that although similar to a sandwich, they are not actually “sandwiches.”

Two states, California and New York, also provide some insight into what constitutes a “sandwich.” California labels hot dogs and hamburgers as sandwiches.^[21] By using the conjunctive word “and” in “hot dog and hamburger sandwiches,” it is presumed that the term “sandwiches” applies to both hamburgers and hot dogs.^[22] New York provides an expansive definition of sandwiches along with examples.^[23] It defines sandwiches to “include cold and hot sandwiches of every kind that are prepared and ready to be eaten, whether made on bread, on bagels, on rolls, in pitas, in wraps, or otherwise, and regardless of the filling or number of layers.”^[24] It also lists examples; including common sandwiches, such as BLTs, cold cuts, and grilled cheeses; as well as some foods that are not necessarily “common sense” sandwiches, such as burritos, gyros, wraps, and pita sandwiches.^[25] Both states, in comparison to the USDA, appear to use a broader definition when defining a “sandwich.”

Sandwich Defined: A Proposal

Currently, a uniform definition of a “sandwich” does not exist. There is a lack of consensus on whether something as popular as the hot dog should be characterized as a sandwich, let alone less common food items like the gyro or wraps. Thus, to aid in resolving ambiguities in the current legal definitions of a “sandwich,” a new framework should be proposed. By combining similarities between the existing legal definitions with “common sense,” or more traditional notions of what qualifies as a “sandwich,” the following guiding principles may be of assistance. A sandwich must consist of: 1) one slice of bread with filling placed upon it; or 2) two or more separate slices of bread with filling between the two pieces; additionally, 3) single or multiple pieces of bread cannot be rolled together, like a burrito, wrap, or taco; and 4) the filling cannot be placed inside the pocket of bread, like a pita. Under this framework, burritos, hot dogs, gyros, wraps, and tacos would not qualify as a “sandwich,” but an open-face sandwich, closed-face sandwich, or burger would qualify as a “sandwich.”

Although it may be “common sense” that a burrito is not a sandwich, one could not state that with certainty in a court of law. This proposed definition will allow courts to adhere to a uniform standard when issues arise in the context of food retailers and their restrictive covenants.

Conclusion

The proposed framework seeks to alleviate the ambiguities surrounding the current legal definitions of a “sandwich.” The ambiguity has not been resolved since the court’s decision in White City Shopping Ctr., LP v. PR Restaurants, LLC.^[26] This is evidenced by the relatively recent media fascination with whether a hot dog is a sandwich, and debaters coming down on both sides of the argument.^[27] While, at times, this is a rather harmless question, at other times, a precise definition is needed to resolve legal disputes, particularly in the case of restrictive covenants.