TC09095 - [2024] UKFTT 00181 (TC)

In Ferrero, which concerned whether a product was a ‘biscuit’ or ‘confectionery’, at page 885, Lord Woolf MR said that the question the Tribunal should ask 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 …”

In Proctor & Gamble at [20], Jacob LJ referred to the statement in Ferrero that the relevant test was the view of the ‘ordinary man’, and continued at [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.”

At [63] of Proctor & Gamble, Toulson LJ added:

“I agree with Jacob LJ that the approach approved in Ferrero really amounted to saying no more than that it was for the tribunal to decide what was the reasonable view on the basis of all the facts known to the tribunal; and it conveys that this is not a scientific question. In determining that question I do not see that any advantage is gained by referring to the hypothetical ordinary person in the street.”

It is therefore well-established that, in determining whether an item of food is ‘confectionery’, the proper approach is to consider whether the item would reasonably be considered to be ‘confectionery’ by the informed ‘ordinary person in the street’. For these purposes, ‘informed’ means informed as to the meaning of ‘confectionery’ for VAT purposes and aware of all the relevant facts in the particular case.

In this case, we consider that the most influential factors on the ordinary person in the street when asked whether an item of food is ‘confectionery’ are likely to be:

The third factor, in our view, carries the most weight as many people will recognise something as confectionery, eg a sweet or chocolate, simply by seeing and eating it and without knowing precisely what is in it or how it was made. That is not to say that the other factors are irrelevant. As the UT in this case said at [115]:

“A consideration of whether something is confectionery will inevitably involve comparison with products which are present in items commonly accepted to be confectionery. There will no doubt be examples of confectionery which do not contain such ingredients but which are nevertheless confectionery. But that does not mean consideration of the ingredients, and the absence of traditional ones, will not add to the overall picture of the product’s classification.”

In addition, there are other factors which although of less weight may, as the UT put it in this case, colour the impression of the ordinary person in the street as to whether something is confectionery without being determinative. Those factors are:

Accordingly, we now consider the evidence in relation to the Products and how the informed ‘ordinary person in the street’ might view them.

As directed by the UT at [143] of its decision, we regard the following findings of primary facts by the FTT in the First Decision as established.