by Marion Nestle
Sep 13 2010

Department of Talmudic investigation: Define candy!

Caroline Scott-Thomas of poses a question to which I must confess I had never given a thought: What, exactly, is candy?

Why would anyone care?  The Streamlined Sales Tax Governing Board cares a lot (and so do candy companies).  The Streamlined Board is devoted to helping states figure out how to impose simpler and more uniform taxes.  It is asking for comments on its current definition, which says that candy is:

A preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts or other ingredients or flavorings in the form of bars, drops, or pieces. ‘Candy’ shall not include any preparation containing flour and shall require no refrigeration.

The point of this definition is to clearly distinguish candy from cookies.  Cookies contain flour.  Candies, by this definition, do not.

Here is where things get deliciously Talmudic.  The Tax Board wants to modify the definition to explain what it means by “flour”:

For purposes of the definition of candy, “flour” does not include a product that can be called “flour” under the Food and Drug Administration’s food labeling standards if the product is not grain based. If only the word “flour” is listed on the product label, it is assumed that the product contains grain based flour. However, if the word “flour” on the label is preceded by a modifier used to describe the product the “flour” was made from and the modifier is not a type of grain, then the product is not considered to contain “flour” for purposes of the definition of candy. For example, flour substitutes or products that are not made from grain but which are finely milled so that they meet the Food and Drug Administration’s definition of “flour,” such as “peanut flour” or “cocoa flour” are not “flour” for purposes of this definition.

Isn’t this fun?  Scott-Thomas points out that under this flour rule, Reese’s Peanut Butter Cups and Three Musketeers are considered candy and taxable, but Kit Kat and Milky Way, which contain flour, would be cookies and exempt.  Apparently, the Tax Board does not view this distinction as arbitrary.

If you think it is a loophole, and that Kit Kat and Milky Way are getting off tax free, or you have other thoughts about how candy tax policies should or should not work, you are welcome to submit comments by September 27.  The Streamlined Tax Board has posted instructions about how to file comments on its website.

  • Anthro

    I would like to see legislation (or “rules”) that go in the other direction; that would make sugary cereals be labeled as “candy”–and be taxed accordingly. This might make some parents think a bit before buying this junk. Same with many “juices” and anything else that is sweetened–all those “fruit” roll-ups and jellied thingies that pass for food these days.

  • Well, you *could* just describe anything with a certain percentage of sugar, or more, as being candy. There would be an awful lot of screaming from currently “non-candy” industries, but hey! Life is tough.

  • Cathy Richards

    Licorice (twizzlers, RT) isn’t candy either then. Really weird.

  • MA

    I agree with Anthro…minus the “flour” bit, that description of candy sounds a lot like many breakfast cereals aimed at children! As well as “fruit snacks” and “granola bars” and many other questionable “foods.”

  • Talmudic indeed, the attempts to define candy. Thanks so much for your post on this. I was surprised to hear you’d never considered the question of what “candy” means, since I know that so much of your work is about the perceptions of food and nutrition as shaped by the food industry. In fact the definitions and marketing of candy have been inseparable from definitions of food throughout the twentieth century.
    This is an area I have been researching, and I take the liberty of directing your attention to this interview I did with Salon Magazine around the time Washington was passing their version of the candy tax this year. You might find it of interest, especially the discussion of the way that “candy” helps bound what will count as “food.”
    “Is Candy Really a Food?”
    I have also written about changing definitions of candy vs food in a historical context, specifically a comparison between legal definitions in the 1920s and today, in a post on my blog: Defining Candy: The Candy Tax

  • Are they simply talking wheat flour or does that extend to corn flour and all of its derivatives? If you put the next post and this together, almost all products contain corn flour I imagine.

  • Yay, Red Vines (made from wheat flour and sugar and red stuff) is now not Candy anymore!!

  • Jon

    See? This is what happens when you emphasize refined grains in a diet: It becomes such a superfood that even if it’s in candy, it’s by definition not candy. I sense ideology at work.