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I heard, a short while ago, that Nestle may make a similar representation over the VAT status of the Kit Kat.
I would imagine that fresh biscuits have alot less moisture in them than fresh cake, so if the biscuit is dryer than the environment it will absorb moisture from it, causing it to go soft. But a cake is probably more moist than the environment, so it will lose moisture when it equalizes with the environment and go hard.Is a hard cake harder than a soft biscuit?
Must say that I haven't really noticed this.That just shows my lack of biscuit/cake consuming 
You should cross an adult cake with an adult biscuit, could be onto a new hybrid that doesn't go off.
MS has hit the nail right on the head. The low moisture content of a biscuit means it will absorb moisture from the air, while the high moisture content of the cake means it will loose moisture.McVities, manufacturers of the Jaffa Cake, had a prolonged argument with HM Customs on the cake/biscuit affair.McVities insisted that the Jaffa Cake is a cake and, therefore, not subject to VAT. HMC argued that the Jaffa Cake was a chocolate coated biscuit, therefore is subject to VAT.Cakes are deemed to be a necessity, so they are free of VAT.Biscuits are also deemed a necessity, so they too are VAT free, but chocolate coated biscuits are deemed to be a luxury, therefore they are subject to VAT.After much wrangling in the UK courts, the matter was taken to the European courts. McVities took along a 12" Jaffa Cake and convinced the courts that it was a cake. The standard Jaffa Cake was thus adjudged to be a smaller version of this cake and should indeed be classified as a cake.The criteria used in this judgement was McVities' claim that a biscuit would go soft when stale, while a cake would go hard. Jaffa Cakes go hard when stale.I heard, a short while ago, that Nestle may make a similar representation over the VAT status of the Kit Kat.