When legal issues threaten your small business

Say this for Kalpna Solanki: the owner of Marvin's Marvelous has dealt with every change-up and bean ball and keeps on swinging. In addition to theft and a change of products, her company, FX Foods, was the victim of a disputed call that could have thrown them right out of...

Kalpna Solanki | BCBusiness
Kalpna Solanki keeps her head in the game

Dealing with the CRA and paying unexpected fees can be particularly tough for small enterprises

Say this for Kalpna Solanki: the owner of Marvin’s Marvelous has dealt with every change-up and bean ball and keeps on swinging. In addition to theft and a change of products, her company, FX Foods, was the victim of a disputed call that could have thrown them right out of the game.

Pick up a package of Marvin’s Marvelous Naturals Pumpkin Seed Cranberry Granola and read the label: “Marvelous as a breakfast cereal with vanilla yogurt and fresh fruit.” Seems simple enough. But the wording is specific, and with good reason. An earlier version of the slogan cost FX Foods approximately $20,000 and a lot of work.

“It used to read: ‘Marvelous with vanilla yogurt and fresh fruit,'” says FX Foods owner Solanki. Then in 2012 the company was audited by the Canada Revenue Agency. “They said, ‘You don’t have the word “breakfast” on this label,'” Solanki says. “I said, ‘Well, it’s granola. That’s breakfast cereal.'”

The CRA disagreed. If it doesn’t say “breakfast,” Solanki was told, it’s a snack. And snacks, unlike breakfast, are GST (and at the time HST) eligible. Solanki was assessed back taxes of about $5,000 (her distributor Left Coast Naturals was hit harder, close to $70,000). Recalling and repackaging all her granola lines cost an estimated $10,000 to $15,000.

Protesting tax decisions is a strategy with a notoriously low success rate. But sometimes a company, or even an entire industry, reaches the conclusion that battling government regulation is worth the effort. The B.C. government’s new recycling protocol, involving a newly created entity called Multi Material BC (MMBC), has inspired that kind of response from a range of small businesses in B.C.

New provincial regulations have turned recycling over to the MMBC, which will collect fees from provincial businesses to pay for curbside recycling programs. Exemptions to the program are set at below $1 million in sales or one tonne of shipped packaging and printed paper.

Eatmore Sprouts and Greens Ltd., located in the Comox Valley, is an organic produce company that’s been owned by Carmen and Glenn Wakeling since 1996. They grow, package and ship organic produce to wholesalers in B.C. and across Western Canada. They’re not big, but they’re big enough to fall under the new MMBC. As of May 2014, companies like Eatmore must pay for the expected costs of recycling their packaging, and the mechanism created to execute the plan is causing considerable unrest in the business community.

“We’re happy to be a part of it,” Carmen says of the recycling plan. “Somebody has to take responsibility. But we’d like to see the law adjusted to consider more factors. We’re dealing with the same requirements as the multinationals, with about 1/200th of the sales.”

Regulation is a fact of business life. But when the stakes are sufficiently high small businesses can band together for lobbying purposes. A coalition of small business organizations, including the B.C. Yukon Community Newspapers Organization, the B.C. Agriculture Council and the B.C. Bottle and Recycling Depot Association, have created Rethink It B.C. to pressure the provincial government to change the law. The group claims MMBC will make small B.C. businesses uncompetitive with neighbours in Alberta and Washington State, levy onerous fees and penalties, and create a new monopoly with an inherent conflict of interest. According to the organization’s website: “The program run is by Ontario-based Canadian Stewardship Services Agency (CSSA) and governed by multinational corporations including Walmart, Procter and Gamble, Coca-Cola and Unilever. As governors of a program where they are the largest producers or importers of printed paper or packaging (PPP), companies like Walmart will be in effect governing themselves, creating a conflict of interest.”

Regardless of how the MMBC battle turns out, the Wakelings understand that prospective small business people can always expect to carry a higher relative burden than their giant competitors. “Whether it’s bar codes, food safety or recycling, it’s easier to swallow for the large producer,” Carmen points out. “Small producers have the same regulations but larger costs.”

Not all regulatory changes have added burdens to small business. They can open up new fields of opportunity. Lauren Mote and Jonathan Chovancek’s Bittered Sling product line was only made possible by regulatory changes. Until 2010, it had been illegal in B.C. to take a spirit out of the bottle, infuse it with other flavours and sell it as an “adjusted product.” When the B.C. Liquor Board finally changed those rules, it cleared the way for the couple’s move from their catering business to the sale of Bittered Sling Extracts.

As a former public health inspector, FX Foods’ Solanki does not have a problem with most government health and safety regulation. But there are still areas that irk her. “My main concern is with labelling requirements,” she says. “Imported foods don’t have the same requirements as Canadian products, and I think that’s unfair. I have no issues with the requirements—just have a level playing field.”