Keeping those New Year's resolutions just got a little easier in Ontario
February 2, 2017

by: Andrea Kroetch

The Ontario Healthy Menu Choices Act and its Regulations, which became effective January 1, 2017, aims to allow Ontarians to make informed food and beverage choices when eating in a restaurant or purchasing take-away meals. 

Under the new Act and its Regulations, owners and operators of regulated food service premises are required to display calorie information for every standard food and beverage item on their menus and on display tags/labels or signs where standard food items are put on display or are self-serve and as well, a contextual statement regarding average daily calorie needs to help consumers put the calorie information into context (e.g. “Adults and youth (ages 13 and older) need an average of 2,000 calories a day, and children (ages 4 to 12) need an average of 1,500 calories a day. However, individual needs vary.”). 

A regulated food service premise is defined in the Act as a food service premise which is part of a food-service chain (i.e. 20 or more locations in Ontario with the same or substantially the same name and standard food items) or a cafeteria style food service premise which is open to the public and owned or operated by a person that owns or operates 20 or more cafeterias in Ontario.  This definition therefore includes restaurants, fast food outlets, coffee shops, bakeries, movie theatres, and supermarkets and convenience stores that serve hot food.  Exempted from the new rules are food service premises which operate for less than 60 days in a calendar year or to food service premises located in public or private schools, correctional institutions or childcare centers.  This means that food service vendors at weekend farmer’s markets, for example, would likely be exempt from having to comply with the new Act and Regulations provided that they operate for less than 60 days in a calendar year.

Under the Act and Regulations, regulated food service premises are required to display calorie content for all restaurant-type standard food items, which are defined as food or drink items that are (a) either served in a food service premise regulated by the Act and Regulations or processed and prepared primarily in the regulated food service premise, (b) are intended for immediate consumption, (c) do not require further preparation by a consumer before consumption, and (d) are sold or offered for sale in servings that are standardized for portion and content.  Calories must also be displayed for alcoholic beverages listed on a menu, label or tag.

Notably, calorie content is not required for food and beverage items which: are offered for sale for less than 90 days per calendar year (consecutively or non-consecutively); are self-serve condiments that are available free of charge and not listed on the menu; are prepared specifically for inpatients of a public hospital, private hospital, psychiatric facility, long-term card home or retirement home; or are “special-order items” prepared on an exceptional basis in response to a specific customer request, which represents a deviation from the food service premises’ usual preparation of the standard food item.  With respect to this latter exemption, it should be noted that standard food items which are necessarily prepared “made-to order” (e.g. a sandwich where the user chooses the toppings) do not fall within the exemptions.

The Act and Regulations also prescribe the manner in which calorie information should be displayed.  In general, calories for standard food items are required to be displayed adjacent to the name or price of the standard food item to which it refers, in the same font and format as, and at least the same size and prominence as, the name or price of the standard food item to which it refers and in a manner which is unobstructed and readily legible to an individual reading the menu, label or tag.  As well, the calorie information must be distinguished from other numbers on the menu or display label or tag by using the term ‘‘Calories’’ or ‘‘Cals’’.  However, the prescribed manner for displaying calorie information can vary in specific situations, such as where a standard food item is: a self-serve item; an item intended to be shared among customers; available in a number of flavours, varieties or sizes; offered for sale with the option of adding various toppings, etc.; or intended to be sold in combination with other sides and/or beverages.

Regarding enforcement, the Act provides for inspectors to be appointed to monitor compliance and sets out powers for these inspectors and also provides for fines for failure to comply.  Every individual who contravenes the Act may be liable for a fine of CDN$500 for every day not in compliance for a first offence and $1,000 for a second or further offence. For a corporation, the fines are up to $5,000 a day for a first offence and up to $10,000 for each subsequent offence.  

Currently, the province of Ontario is the only Canadian province that has put in place such labelling laws, though British Columbia has had a voluntary nutrition information system in place since 2011.  This is in contrast to the United States, where many of its large cities and some states have required calorie counts on menus for many years, including New York City, California, Seattle, Oregon, Maine and Philadelphia.  As well, in 2010, the United States federal government passed a law requiring calories to be displayed on vending machines and on menus of any restaurants with more than 20 locations nationwide by December 2016.  Whether a similar federal legislation will be enacted in Canada has yet to be seen, though the current Canadian federal government recently announced its intention to overhaul Canada's healthy eating guidelines and to introduce new rules for marketing and labelling certain foods aimed at children, which suggests that an interest on the part of the federal government in providing tools for Canadians to make more informed, healthy food choices in the future.

For further information, please contact a member of our firm’s Marketing & Advertising group.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.

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