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Is a burrito a "sandwich"?

Bob Dobalina Nov 10, 2006 08:18 PM

There was a recent trial court decision in Massachusetts, where the judge ruled that, as a matter of law, a burrito is not a sandwich.

You can read the Boston.com article on the decision here...


The case involved a dispute between a Panera, which had exclusive rights to sell sandwiches in a mall in Massachusetts. The owner of the mall later signed a lease with the Qdoba chain, and Panera sought to enforce the exclusivity provision of their lease.

The case apparently included expert testimony from chef Chris Schlesinger, a well-regarded Boston restauranteur who recently opened the "All-Star Sandwich Bar."

Notably, there was no indication about whether the subject of wraps came up.

So I put it to you chowhounds - did the judge decide this issue correctly?

  1. j
    jlawrence01 Nov 20, 2006 01:11 AM

    >> My understanding of it is that the non compete clause can only be enforced within the mall, complex, strip mall etc.<<

    That is absolutely correct.

    1. ecustard Nov 16, 2006 02:02 PM

      Conversely, is a Panera bagel a bagel? I'd suggest not as well.

      Since I'm posting regarding bagels and others mentioned Dunkin' Donuts I'll relate a pertinent local tale. When DD began to offer bagels at their shops, one local outlet ran into a wall. Seems the local bagel shop had an exclusivity clause for bagels in the shopping center where both were located. So...long story short, no bagels at that DD though they do sell breakfast croissants w/eggs, etc.

      1 Reply
      1. re: ecustard
        byrd Nov 16, 2006 06:40 PM

        they should have advertized sugar free or savory donuts.

      2. byrd Nov 16, 2006 12:25 PM

        the Panera controversy continues is this a burrito or a sandwich:


        1. HillJ Nov 15, 2006 12:20 PM

          Who enforces an exclusive lease when a mall or city block can have multiple owners? The Panera near us is in a strip mall with a large food market and sub shop a few feet away. One traffic light further is a Baja Fresh. Do these landlords meet somewhere (say Panera for lunch) and discuss exclusive lease agreements and menus their tenants offer the public?

          How does this problem end? What are the legal miles before sandwich can be sold elsewhere? Did this just apply to sandwiches sold? No beverage, salad or soup claims?

          Sandwich or not, I'm not so sure I like Panera anymore.

          4 Replies
          1. re: HillJ
            jlawrence01 Nov 15, 2006 02:29 PM

            Exclusivity contracts occur all the time. A shopping center wants a tenant and both party sign an agreement that the landlord will not rent to another similar operator.

            No developer controls MILES of retail space. Had Panera WON the suit, the Qboda would probably have rented a space a block down teh street.

            Qboda probably has similar agreements in other developments.

            1. re: jlawrence01
              HillJ Nov 15, 2006 03:21 PM

              Thanks jlaw..What if Qboda was in the retail space first? Panera would have chosen another location? Exlusivity, a slippery slope over one menu item. Don't food service competitors nearly touch each other corner to corner? Sounds ridiculous.

              1. re: HillJ
                jlawrence01 Nov 16, 2006 01:31 PM

                Had Qboda been in the space first, you can be certain that they would have asked the landlord for a clause that would prevent say, a the landlord from renting to another Mexican joint.

                I don't know why you seem so surprised. When you are investing a $100k in a business (or 5-10x more) you want to set up conditions where you are successful. And these clauses are negotiated by BOTH parties and the landlord requests (and generally gets) consideration in the form of higher rents.

                In this case, Panera wasn't suing Qboda. They were suing the landlord on a particular clause in the contract.

                Do restaurants touch each other? Certainly. However, if I am going to invest $1M to build a Dunkin Donuts in a mall or shopping center, I don't want to have a Krispy Kreme in the immediate facility.

                1. re: jlawrence01
                  HillJ Nov 19, 2006 08:41 PM

                  I guess I'm surprised if I go back to the original OP..burrito vs. sandwich. Panera does not serve burritos. Regardless of $$ investment, in most of the strip malls near me 5-7 food establishments (chain or independent) can share the same foot traffic. When a new restaurant scopes out a potential space, they most know at that time the "fine print." I'm glad the suit went nowhere. Thanks for sharing your insights.

          2. j
            jlawrence01 Nov 15, 2006 02:40 AM

            Panera spent $50k to keep competition away from one of their stores. Had they won, it certainly would be money well spent and easily recouped in a year or two.

            In the future, they'll have to include Mexican in the non-compete contract.

            1. mamamia Nov 14, 2006 09:46 PM

              Seeing that a torta is a sandwich in Mexico, a burrio is most definitely not a sandwich.

              1. TongoRad Nov 14, 2006 02:39 PM

                It just seems strange that the judge chose to take on the task of defining a 'sandwich', which in truth could be looked at very broadly (I'd still draw the line at burritos, though), rather than a 'sandwich shop', which is what the landlord agreed not to rent to. A Tex-Mex takeout place is simply not a sandwich shop, similarly a burger joint is not a sandwich shop- but a burger can more easily be defined as a sandwich than a burrito.

                1 Reply
                1. re: TongoRad
                  mclaugh Nov 14, 2006 09:20 PM

                  It's not a matter of the judge "choosing" to take on the task of defining a "sandwich," its a logical necessity that follows from the issue before the court.

                  Panera's complaint is that the landlord violated the exclusivity clause that prohibits the landlord from renting space to another sandwich shop, however, Panera did not assert that the prospective tenant is a sandwich shop; rather, Panera asserted that the product sold by the prospective tenant—in this instance, a burrito—is a sandwich.

                  Self-evidently, if a burrito is not a sandwich, then a restaurant that sells burritos cannot be a sandwich shop (providing, of course, that it does not also sell sandwiches), and renting space to a restaurant that does not sell sandwichs does not violate the exclusivity clause, therefore, Panera's complaint can be found to be valid if and only if a burrito is a sandwich. Therefore, in order to adjudicate Panera's claim the landlord violated the exculsivity clause, it was necessary for the court to determine whether or not a burrito is a sandwich, and in order to determine whether or not a burrito was a sandwich, it was necessary for the court to define what constitutes a sandwich.

                2. r
                  RiJaAr Nov 14, 2006 01:06 AM

                  a ridiculous question, if it doesn't look like a sandwich, and it doesn't taste like a sandwich, then it isn't a sandwich... doesn't a sandwich have to have something sandwiched between two other things?

                  16 Replies
                  1. re: RiJaAr
                    mclaugh Nov 14, 2006 02:37 AM

                    So are you saying an open-faced roast beef sandwich isn't a sandwich? What about that icon of Danish culture, smorrebrod?

                    1. re: mclaugh
                      byrd Nov 14, 2006 11:35 AM

                      technically and by definition "open faced ... sandwich" is not a sandwich. Whoever picked up an open faced and ate it with his hands?

                      1. re: byrd
                        Bob Dobalina Nov 14, 2006 01:36 PM

                        A-ha! So if you can pick it up and eat it with your hands, it's a sandwich? We're right back where we started with the burrito. ;)

                        1. re: Bob Dobalina
                          byrd Nov 14, 2006 02:00 PM


                          1. re: byrd
                            RiJaAr Nov 14, 2006 04:43 PM

                            yes but you can also pick up pizza and eat it with your hands, and chicken drumsticks, does this make them sandwiches?

                            1. re: RiJaAr
                              byrd Nov 14, 2006 08:34 PM

                              if the drumstick is deep fried, then there is bread surrounding it
                              i'm sure you could find several judges that would fall for that one.

                        2. re: byrd
                          mclaugh Nov 14, 2006 06:53 PM

                          So I take it you've never eaten a smorrebrod.

                          1. re: byrd
                            pgym Nov 15, 2006 01:02 AM

                            My five year old's favorite food is tuna salad on a single slice of bread, which she eats open-faced and picks it up with her hands.

                            So tell me, byrd, If what she's eating is not a sandwich, what "technically and by definition" exactly is it?

                            1. re: pgym
                              byrd Nov 15, 2006 12:54 PM

                              if she picks it up and folds it, its a sandwich, if she grabs it from the corners it isn't, a sandwich is an extremely technical and complicated entity.

                              1. re: byrd
                                CindyD Nov 16, 2006 10:24 PM


                                People have been eating smøorrebrød, which food historians classify as a sandwich, without folding it since the Sixteenth century.

                                1. re: CindyD
                                  byrd Nov 16, 2006 11:18 PM

                                  i'm sure that there has been a couple of times in danish history
                                  that someone has folded his smoorrebrod.

                                  1. re: byrd
                                    pgym Nov 16, 2006 11:26 PM

                                    Yeah: the ignoramuses who don't know how they're supposed to be eaten open faced.

                            2. re: byrd
                              CindyD Nov 15, 2006 01:16 AM

                              Scandanavians have been picking up and eating open faced sandwiches (smørrebrød) since at least the sixteenth century, but they eat them with their mouths rather than with their hands. That way they get to taste them.

                              <http://www.askbjoernhansen.com/2002/1... >

                              1. re: CindyD
                                Davwud Nov 16, 2006 12:24 PM

                                Okay, so where does a smore fit in. It's chocolate and marshmallow "Sandwiched" between two crackers.


                                1. re: Davwud
                                  jfood Nov 19, 2006 11:30 PM

                                  smores fit in anywhere they want. breakfast is fine, lunch better, after dinner is perfect and right before bed is even the better best. You can me sam, joe or tom, good smores should be able to be sold anywhere, anytime

                          2. re: RiJaAr
                            Ed Dibble Nov 16, 2006 01:48 PM

                            When I lived in Ohio, I learned that a "sandwich" was meat on bread served with mashed potatoes and covered in gravy.

                            If I wanted what I had previously thought of as a "sandwich," I had to order a "cold sandwich."


                          3. r
                            raj1 Nov 13, 2006 05:23 PM

                            I think they missed the bigger issue here--is a burrito really Mexican food?

                            1. Davwud Nov 12, 2006 02:46 AM

                              To paraphrase, "I don't know the definition of a sandwich. But I know one when I see it."


                              1. byrd Nov 11, 2006 01:55 PM

                                a folded pita (i.e. gyro) is not a sandwich
                                a pita cut in 1/2 with some turkey and lettuce is a sandwich

                                1 Reply
                                1. re: byrd
                                  jfood Nov 11, 2006 08:14 PM

                                  gotta disagree on the pita-front. That's a stuffed pita not a sandwich. Is a falaffel in pita a sandwich. Tough putt on either.

                                2. jfood Nov 11, 2006 12:18 PM

                                  Shakespeare yet again is correct in the first lambs to the guillotine, but the law practice does give us pause for smiles, thank you.

                                  So now let's discuss the implications:

                                  - A slice of Chicago deep dish pizza may be considered a sandwich. It has a slice of "bread" on top and bottom and filled with meats, tomato (sauce), veggies and cheese
                                  - A triple-decker sandwich with three slices of bread no longer qualifies as a sandwich but now takes on the same constitutional rights as a burrito
                                  - Quessadilla - if the resto uses one tortilla and folds over its not a sandwich, but if it uses the two tortilla ("bread") method before grilling it seems to now be classified as a sandwich
                                  - Hot Dog - who the heck would call a hot dog on a roll a sandwich, THIS MUST HAVE BEEN THE SMOKING GUN IN THE CASE
                                  - What about the dips that are served in a "bread bowl". They have ingredients surrounded by ~270 degrees of bread, are they a sandwich?

                                  All the silliness leads to more silliness

                                  1. m
                                    mclaugh Nov 10, 2006 10:20 PM

                                    Dear Panera Bread,

                                    We'll remember this when your lease comes up for renewal.

                                    Your Landlords.

                                    Translation: you're screwed.

                                    1. HillJ Nov 10, 2006 09:33 PM

                                      I can just see the prices at eating at Panera rising as a result. When I want a burrito I don't think of Panera...when I want a sandwich I can go to Panera, the deli, the grocery store, etc...what a ridiculous debate.

                                      1. g
                                        Grubbjunkie Nov 10, 2006 09:21 PM

                                        I tend to agree with the decision but ugh, I hate it when people blame the lawyers for stuff like this. Instead of trying to compete fairly with the burrito place, Panera rolled the dice on a lawsuit. Chances are good Panera has a similar restriction in most of its 31 leases, and decided to take a shot. If they won it could have had a much broader impact.

                                        If there's a lawyer to blame at all it's the one who drafted the restriction and failed to specify what "sandwich" means.

                                        2 Replies
                                        1. re: Grubbjunkie
                                          DanaB Nov 10, 2006 09:41 PM

                                          I think I can poke fun at the lawyers, seeing as I'm speaking from 10 years experience practicing business litigation. Certainly Panera was advised by lawyers before embarking upon this suit. Heck, they may have even had success with this argument in other jurisdictions. In my experience it takes a lawyer to come up with the creative argument that a thing is not what it is, as the lay person would say, practically, of course a burrito is not a sandwich (look at the polls on the Boston.com). But maybe the lawyers in your life differ.

                                          1. re: DanaB
                                            Terrieltr Nov 17, 2006 06:00 PM

                                            As one of my law profs said "The question is no 'Can they sue you?' Of course they can sue you! The REAL question is 'Can they sue you and not get tossed out of court?'"

                                        2. Bob W Nov 10, 2006 09:13 PM

                                          There was a much closer (and funnier) case down in Providence earlier this year involving another mall exclusivity clause -- this one dealing with boiled rice.

                                          The judge heard TEN DAYS of testimony and even toured the kitchens of the restaurants involved.


                                          1. m
                                            ML8000 Nov 10, 2006 08:49 PM

                                            I'd say the judge did right. Otherwise you could argue that pizza is really an open face tomato and cheese sandwich.

                                            1. DanaB Nov 10, 2006 08:49 PM

                                              Clearly a burrito is not a sandwich. A sandwich is by definition a filling "sandwiched" between pieces of bread. A burrito is a filling wrapped in a tortilla.

                                              Now if they were arguing whether a torta was a sandwich, or whether falafel in pita was a sandwich, I'd think it would have been a closer call, but as it stands, the Judge's decision was right on.

                                              Leave it to the lawyers to try to argue that a burrito is a sandwich. That's like trying to argue that a taco is a sandwich or a slice of pizza is a sandwich. Sheesh!

                                              The link in the article on "is it a sandwich" called "related: you decide" is hilarious!

                                              1 Reply
                                              1. re: DanaB
                                                Striver Nov 13, 2006 07:10 PM

                                                But what is a croque monsieur - or a "hot pocket"? That is, if you seal the edges of the bread, does the sandwich cease to exist and something else emerge? Similarly, does battering and frying the sandwich change its platonic essence to another category of being?

                                                Oh well. I'm always happy to see our courts are occupied with issues of critical importance to the vital domain of culinary cladistics.

                                              2. Infomaniac Nov 10, 2006 08:26 PM

                                                The decision is a coin toss, but either way it's no skin off my apple.

                                                1. b
                                                  Bostonbob3 Nov 10, 2006 08:25 PM

                                                  If the judge was Solomon, he would have cut the sandwich (or burrito) in half.

                                                  1 Reply
                                                  1. re: Bostonbob3
                                                    Non Cognomina Nov 19, 2006 05:07 AM


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