November 13, 2006

Pushing Forward Sandwich Law

Tales of Massachusetts

I don’t know about other states, but here in Massachusetts we like to give back to society. For example, Massachusetts is on the cutting edge of sandwich rights. Here in the Bay State, our activist judges are activizing 24/7 to bring you the best law possible. In under 30 minutes. Or your next law is free.

Most recently, we have an example of sandwich law coming out of Shrewsbury, MA. A judge has ruled that a burrito is not a sandwich.

Panera has a clause in its lease that prevents the White City Shopping Center in Shrewsbury from renting to another sandwich shop. Panera tried to invoke that clause to stop the opening of an Qdoba Mexican Grill.
But Superior Court Judge Jeffrey Locke cited Webster’s Dictionary as well as testimony from a chef and a former high-ranking federal agriculture official in ruling that Qdoba’s burritos and other offerings are not sandwiches.

Massachusetts is the perfect place to decide this, because we even have a town called Sandwich. But that’s not where this case is being decided, which is unfortunate, because the story would be that much more amusing.

Sneaky Panera! I agree with the judge’s ruling. A burrito is not a sandwich. It has some sandwich-esque qualities, but it is not a sandwich. It’s actually more like a hot wrap. And there is a difference. I ordered a turkey club last week at a local cafe and I did not read the fine print that the cold items on the menu were not sandwiches, but rather were wraps. And so I ended up having to eat a wrap when I got it back to the office. And it made me ill, because I was expecting one thing and ate another. (I guess my digestive system likes advance notice)

How Will This Ruling Affect You?

  • For one thing, if you are a Panera store with a “no other sandwich shops” clause in your lease, this will not block a Mexican restaurant from moving in on you. I mean, duh, it’s not a sandwich shop, it’s a Mexican restaurant.
  • If you are a Mexican restaurant, you’re good to go.
  • If you ask someone for a sandwich and they give you a burrito, you are now legally allowed to throw that burrito back at them and call them a filthy guest worker for not knowing the difference. This is America. Sandwiches have slices of bread.

Some small consolation for Panera: your French Onion Soup is amazing, and you have better wifi access than Qdoba Mexican Grill. At Qdoba, the internet is in Mexican, and that’s just not right.

Posted by James at November 13, 2006 7:47 AM
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Yes, I read about this yesterday. I'm wondering about a gyros — now, there aren't two slices of anything there, and is a pita "bread" any more than a tortilla is, hm? And what if I take real, American bread, but I only take one slice and fold it over. Does that count?

Actually, what I found more interesting than the argument about whether or not an aardvark is a zebra is the fact that crating that situation in the first place is even allowed. It seems that the lease itself ought to be invalidated as being anti-competitive.

Posted by: Barry Leiba at November 13, 2006 8:58 AM

True - that clause is anti-competitive. I'm no lawyer (I'm no doctor, either, no matter what my URL says) so I don't know if it's illegal to have such restrictions in your lease.

I may be wrong, but it may be that Panera wants the flexibility to escape the lease agreement if the mall brings in other sandwich shops. It seems to me that the lease can only really say what happens to that particular agreement. But I may be wrong about that.

And even if I'm right, it is still anti-competitive. This is where a lawyer comes in handy. Can somebody recruit one for my readership? I have a lawyer gap problem. ANd if they're suing to stop Qdoba from coming in, that would seem to go against my theory.

Along the lines of your point, it seemed to me that the judge only had to rule that Qdoba wasn't a sandwich shop, unless they've already previously defined sandwich shop as a place that sells at least one kind of sandwich.

A hamburger is a sandwich under the two-slices rule (unless a bun is not a slice - aha!). How about a hot dog? Does it become a sandwich if you split the bun completely, and not before? Definitions are fun. But I think that when it comes right down to it, people don't think of a hamburger, a wrap, a hot dog, a burrito, a taco, or a Yorkshire pudding as a sandwich.

Posted by: James at November 13, 2006 9:20 AM

From the Boston Globe story:

Among [the experts called to testify] was Cambridge chef Chris Schlesinger, who said in an affidavit, "I know of no chef or culinary historian who would call a burrito a sandwich. Indeed, the notion would be absurd to any credible chef or culinary historian."

Judith Quick, a former division deputy director at the Department of Agriculture, said in her affidavit, "The USDA views a sandwich as a separate and distinct food product from a burrito or taco."

Note Qdoba is owned by Jack in the Box. Who knew those were still around? Oddly enough, there was a Jack in the Box right across from the White City shopping plaza where this food fight happened.

Chris Schesinger, the well-known chef, has opened a sandwich shop that focuses on building excellent sandwiches. The irony of having him testify in this case is that the staff wear T-shirts with a "no wrap" symbol on the back.

I went there a couple of weeks ago, just after they had opened, and I had the Rachel.

From the menu:
House Roasted Turkey Breast, Vermont Cheddar Cheese, Cider Slaw, and Russian Dressing on Sourdough $8.75

One of, if not "the," tastiest sandwich I've eaten in years. One may express surprise at &8.75 for a sandwich, but think of it this way: it was filled with pemium quality ingredients and was so large, I barely ate any dinner!

If you find yourself in Inman Sq., do stop in:

Posted by: Patti M. at November 13, 2006 9:35 AM

It is my understanding that this sort of non-compete agreement is a common concession the building owner will make to the lessee in order to get the to sign what is typically a long-term business lease on the property.

Posted by: Jim at November 13, 2006 9:54 AM

I too read this with some amusement but think the "two slice rule" is silly.

What about grinder/subs! I mean Subway, Blimpie's, D'Angelo's are all sandwich shops!
A pocket is a pocket, a wrap is a wrap, maybe a sandwich has to use a leavened bread (like bulkie rolls, stick bread etc.)

I agree with the decision but not how the judge arrived at it!

Posted by: Lefty at November 13, 2006 11:49 AM

Tacos and burritos should be safe, but I'm not so sure about quesadillas... two "slices," pressed in a sandwich press... awfully suspicious to me...

Posted by: mjfrombuffalo at November 13, 2006 1:57 PM

I actually do think of a burrito as a sandwich (if it's small enough to pick up and eat, and not overstuffed and smothered in sauce), but I also think Panera ought to suck it.

Posted by: Julie at November 13, 2006 3:41 PM

Julie, if you run for office, you've got my vote.

Posted by: Patti M. at November 13, 2006 3:53 PM

Panera should also try to outlaw pharmacies like CVS that sell Hot Pockets in their frozen sections. And what about ice cream sandwiches? Somebody think of the children...

Posted by: Mike at November 13, 2006 3:54 PM

Nobody's mentioned open-face sandwiches. Oh, the humanity!

I wonder if Panera would argue that a sushi place sold sandwiches? A hand roll isn't too far, structurally and in concept from a wrap. The starch is in the rice instead of the outer wrap, and the seaweed acts as the greens, instead of lettuce.

Posted by: James at November 13, 2006 4:17 PM

Nobody can say we don't tackle the big questions here at AFoL.

Posted by: James at November 13, 2006 4:18 PM

And don't forget the Fall River fave! The Chow Mein Sandwich! It's like an open-faced, it's got a bun, you practically have to eat it with a fork, and we STILL call it a sandwich!

Posted by: Lefty at November 13, 2006 5:26 PM

Oooh, so much to respond to!

  1. When I worked at McDonalds, when I was in high school (time frame: the signs still said "[n] million sold", and "n" was still, as I, in its teens), we most definitely called what we sold "sandwiches". Of course, we also called the store a "restaurant", so take that with 1200 mg of salt.
  2. Along the line of the All Star Sandwich Bar, if you're in the vicinity of Gaithersburg, MD, where I used to live, do check out Roy's Place. Around 200 sandwiches, with funny names and sometimes odd combinations of ingredients. Tasty.
  3. A proper quesadilla shouldn't have two tortillas, but one, folded.
  4. It is an oddity of our judicial system that generally (there are exceptions) a judge can only rule on what's brought before the court. If Qdoba (how is that pronounced?) had countersued on the basis that the lease is anticompetitive and, thus, illegal, then the judge could rule on that. Since they didn't, he couldn't. I wish that weren't the case, but I guess it's to try to prevent judicial excesses (let's not bring up the "activist judges" phrase, oh, no, let's not).

Posted by: Barry Leiba at November 13, 2006 10:27 PM

I've never been to Qdoba, but now I feel I have to take a field trip. I had a chance a couple of weeks ago (they're at the Pru) but I was trying to watch students and the line at Qdoba was too long.

I think it's pronounced "Kuh-doh'-buh."

I've never had a quesadilla, proper or otherwise. I've only had a chimichanga as of about a year ago. But I prefer carne asada. You will not be quizzed on this.

I worked at McDonalds, too. So do at least two occasional readers of this blog that I know of (because I worked with them). Yep - we certainly called them sandwiches. Thanks for reminding me.

But please shoot me if I ever consider McDonalds a sandwich shop.

And remember to clean as you go!

Posted by: James at November 13, 2006 10:52 PM

Ah, the storied chow mein sandwich. I've heard so much about this, I feel I must try it. Bob, next time we're visiting your parents, take me to the China Diner and I'll get one!

Posted by: Patti M. at November 14, 2006 8:37 AM

Qdoba is nothing special. They're fine but fast food Mexican restaurants are becoming rather commonplace around here.

Posted by: Mike at November 14, 2006 10:06 AM

Sorry, the China Dinah (aka The China Royal)is long gone. Too bad where else could you get fine (hah) chineese food AND a roast turkey dinner with double fries and extra gravy at the same restaurant? At 1 in the morning? Hah nowhere that's where.

I'm sure you can get a chicken chow mein sandwich elswhere though. Is Mark-you's still around?

Posted by: B.O.B. (bob) at November 14, 2006 10:41 AM

AKA the Poison Pagoda. I miss it. There are a couple of places in Taunton that still serve the chow mein sandwich. You wouldn't go to Taunton just for that, but if you happen to find yourself on I-495 in the near future, you might want to hit the Broadway exit and check out China Garden. Fall River style chow mein, with or without the sandwich bun. Delicious!

Posted by: Julie at November 14, 2006 2:16 PM

My Mom and I have always liked simple chow mein sandwiches made with these Hoo-Mee mixes. It's just noodles and gravy and you can add your own vegees.

Posted by: Mike at November 14, 2006 2:47 PM

I like those too! But I especially like the sandwiches at China Garden because they come with these extra-crunchy (and no doubt bad-for-you) fries.

Posted by: julie at November 14, 2006 3:14 PM

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