Tacos and Burritos Ruled as Sandwiches in Indiana

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Indiana Judge Rules Tacos and Burritos are “Sandwiches”

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Tuesday, May 28, 2024

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Earlier this month, Judge Bobay of Allen County Superior Court in Indiana has ruled that tacos and burritos are technically Mexican-style “sandwiches” as part of his ruling in a zoning case.
The case stems from a neighborhood association agreement which stipulated that only establishments that do not have a drive-thru, outdoor seating, or alcoholic beverages, and that specifically serve “made-to-order” or “Subway-style” sandwiches, could operate in a particular strip mall. The plaintiff intended to open a restaurant that served tacos, burritos, and other made-to-order Mexican items, but the commission determined the restaurant proposal did not meet the sandwich-related criteria. The judge wrote that the “Court agrees with Quintana that tacos and burritos are Mexican-style sandwiches, and the original Written Commitment does not restrict potential restaurants to only American cuisine-style sandwiches.”
The question of what foods are considered “open-face sandwiches” or “closed-face sandwiches” adds to the debate further because the answer impacts which federal agency has jurisdiction over the product. Closed-face sandwiches are under FDA labeling jurisdiction and do not require USDA FSIS label approval, although the meat in the closed-face sandwich must be from a USDA inspected facility. USDA defines closed face sandwiches as ”ready-to-serve, hand-held products consisting of a meat or poultry filling between two slices of bread, a biscuit, or a bun.” On the other hand, USDA regulates “open-face sandwiches,” where the product includes at least 50% cooked meat, and “dinners containing a sandwich type product” (e.g., hamburgers).
The culinary question of what foods are considered sandwiches has been a popular debate throughout media and industry. The National Hot Dog and Sausage Council has even weighed in, declaring that hot dogs are not in fact sandwiches. New York law considers burritos to be a sandwich for taxing purposes, though USDA does not. One court, in White City Shopping Ctr., LP v. PR Restaurants, LLC, held that Mexican products like burritos, quesadillas, and tacos, do not fit the definition of a sandwich.