When it comes to selling food, regulations aren’t such a bad thing

OPINION: Small-business owners love to complain about red tape — but some rules are in place for a reason, writes Corey Mintz
By Corey Mintz - Published on May 23, 2018
According to Canada’s Food and Drugs Act, jams must be “45 per cent of the named fruit, and 66 per cent water soluble solids as estimated by the refractometer.” (iStock/travenian)

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My friend, a film critic, argues that at the height of Oliver Stone’s powers in the early 1990s, the director could convince audiences of anything. Stone was so passionate about his wild JFK and Nixon conspiracies that they seemed iron-clad until audiences reached the lobby.

It’s the same talking to small-business owners in Ontario, who often seem willing to believe in vast conspiracies involving multiple levels of government bent on stopping honest people from making a living.

And it’s easy to understand why: those of us who are not lawyers are blissfully ignorant of our governments’ labyrinthine laws and regulations. It’s only when we meet resistance — usually during an attempt to start a business, throw a party, or raise funds for charity — that we bump up against these rules. So, naturally, in that context, they seem designed to obstruct us.

I am often the recipient of complaints about such regulations.

Sometimes the criticism is fair. As when the family butcher shop Macelleria Atlas was retroactively informed that it was no longer allowed to make salami and prosciutto as it had done for 50 years. Or when Toronto tried to raise licensing fees for patios by 1,000 per cent.

Other times, people just want to complain. A few weeks ago, I spoke to an entrepreneur upset that fees were going up for Special Occasion Permits from the AGCO. He regularly organizes craft beer and cider events around the province and was angry that SOPs were going from $75 for up to three days to $150 a day, making the fee for a three-day event $450. But after talking for 20 minutes, he admitted that the increase didn’t really make any difference to events he threw with 10,000 people in attendance. Moreover, the province had also eliminated a levy charge of 16 per cent, so he was saving far more than he was being dinged. He was just upset by the lack of consultation, the government’s opaque decision-making process. He’d only wanted someone to complain to.

Right after that, I had a similar conversation with a pastry chef.

In 2011, Camilla Wynne started a small company in Montreal, making high-quality jams, jellies, marmalades, chutney, and pickles in small batches. By 2016, Preservation Society had four employees, operating out of a kitchen shared with two other businesses. When Wynne moved to Hamilton, she expected to maintain sales through a loyal clientele in Quebec.

“About a year after starting my company, I called the government to ask whether I needed any additional licensing to sell products to other provinces, but the person I spoke to seemed mystified, so I carried on without.”

That was probably Wynne’s second mistake. The first was assuming that she could sell food across provincial borders without encountering additional levels of regulation.

Selling between provinces requires meeting federal standards, which include full nutritional information on labels — something that’s cost-prohibitive for Wynne’s small operation.

“Our labelling laws treat big business the exact same way as small business. In the USA, there's the Small Business Nutrition Labeling Exemption, but here, if you make 12 jars of limited-edition rhubarb-kumquat jam and sell it to my friend's pastry shop in Montreal, I'm supposed to be having a nutrition label made and printed,” Wynne says. “It's very possible it might put me out of business to have to rebrand, redesign, and reprint labels.”

While the United States undoubtedly produces many fine jams, they also have notoriously lax banking regulations that helped caused the 2008 global recession, not to mention gun laws that make them the world capital for mass shootings. I wouldn’t trade that for a jar of artisanal rhubarb-kumquat jam (though that does sound delicious). And even the exemption for small businesses that Wynne quotes is super-sized. It defines a “small business” as one with as many as 100 full-time employees.

It may seem to some Canadians that we are one big country and that there should be no regulations, taxes, or tariffs interfering with the unrestricted flow of goods between provinces. But if not for our separate sets of rules, what distinguishes one province from the other, besides the weather?

This question was recently asked and answered by the Supreme Court of Canada.

In 2012, Gerard Comeau was stopped by the RCMP while trying to bring 14 cases of beer from Quebec (where alcohol is cheaper) to his home in New Brunswick. The New Brunswick Liquor Control Act prohibits residents from having more than 12 pints of beer not purchased through a liquor store in the province.

Comeau was fined, but he fought the case in court, arguing that it was his constitutional right as a Canadian to shop wherever he wanted. And, initially, a New Brunswick judge dismissed the charges, stating in his decision that Canada’s founders intended there to be free trade between provinces. But in April, the Supreme Court overruled that decision unanimously, finding that the Constitution protects the right of provinces to restrict the purchase and transportation of alcohol across borders.

Similarly, if a small business wants to produce and sell food within a city or province, it has to adhere only to the laws of that jurisdiction. But once you want to sell interprovincially, opening up your business to a larger market, you are subject to federal laws. And the Food and Drugs Act is not ambiguous about jams, jellies, marmalades, or pickles (although it doesn’t mention chutneys). Specifically, jams must be “45 per cent of the named fruit, and 66 per cent water soluble solids as estimated by the refractometer. They may contain pectin, a pH adjusting agent, an antifoaming agent and they may not contain apple or rhubarb.”

Wynne takes issue with our government’s interpretation of the word “jam.”

“Because my jams are made with lots of fruit, they mostly don't meet the concentration of sugar to be legally called jam. In Canada, jam is legally 66 brix minimum. All else is ‘spread,’ which is unregulated as far as I know. But, personally, I want to eat jam, not spread — just jam that tastes like fruit more than sugar.”

While I was excited to learn the word “brix” (which turns out to describe the sugar content of a liquid solution), and although I also prefer the word “jam” to “spread,” I’m glad federal laws are not intended to suit any one person’s preference.

Wynne can still sell her jams. She just has to call them spreads, and to provide nutritional information, if she’s going to ship them across provincial borders.

The bigger the market, the more rules there are. Makers of foods, whether small-batch jams or mass-produced candy bars, are subject to regulations.

(It’s true that I have argued in favour of allowing Indigenous chefs the right to serve hunted meats in restaurants, but historical injustice informs my opinion in that case.)

I am, as a writer, a sucker for David vs. Goliath stories. But being the underdog doesn’t automatically make you right. Nor is the size of your opponent evidence of a conspiracy against your business.

The government of Canada is no more trying to tell us what to do in our own kitchens than in our bedrooms. You can cook whatever you want at home. But you can’t start shipping goods across the country without encountering a law or two. If you want to be treated like a home cook, stay at home.

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