On February 24, 2014, the Ontario government introduced Bill
162, Making Healthier Choices Act, 2014 (Act). This
follows an announcement in October 2013 that the Ontario government
would begin consultations regarding legislation requiring
restaurants to include calories and other nutritional information
on their menus. If passed, the Act would require restaurant chains
and other food service providers with 20 or more locations in
Ontario to display the number of calories of all food and drinks
next to where the items are listed on menus or displays.
Interestingly, the Food and Drug Administration (FDA) in the
United States has also recently proposed changes to regulations
under the Nutrition Labeling and Education Act that would
require changes to nutrition labels to place calories in larger and
bolder type and update serving size requirements to match the
portions that individuals typically consume. The proposed changes
by the FDA would also require the inclusion of "added
sugars" on the label, update the recommended daily values for
various nutrients, and add potassium and vitamin D to the nutrients
listed on the labels.
APPLICATION OF MAKING HEALTHIER CHOICES ACT
The Act would apply to all premises where meals are prepared in
order to permit immediate consumption either on the premises or
elsewhere. This would include not only restaurants and fast-food
outlets but also grocery and convenience store chains having 20 or
more locations in Ontario. The Act would apply to each variety,
flavour, and size of food and drink items that are offered with
standardized portions and content. Under section 2 of the Act,
information on the number of calories and any other nutritional
information that might be set out in regulations would be required
to be displayed on each menu on which the item is listed and on a
label identifying the food item where it is put on display.
Although the Act appears primarily intended to apply to
restaurants, any grocery or convenience stores selling food for
immediate consumption will also fall under the Act. Therefore, it
is not clear to what extent the Act would also apply to other food
items that are not sold for immediate consumption at these grocery
stores, such as packaged goods already having nutritional
information on their labels. The Act would allow the government to
exempt food or drink items in regulations made under the Act, and
it is expected that certain exemptions will be set out in the
regulations in order to address this potential overlap.
PENALTIES FOR NON-COMPLIANCE
Under section 4 of the Act, failure to comply with any provision
of the Act would result in a penalty for individuals of up to C$500
for each day in which there is non-compliance for a first offence,
and up to C$1000 per day for a subsequent offence. For
corporations, the fine for a first offence would be up to C$5000
for each day on which there is non-compliance, and up to C$10,000
per day for any subsequent offence. The Act would also place a duty
on directors and officers to take all reasonable care to ensure the
Act is complied with, and the penalty set out for individuals would
apply to any director or officer who fails to comply with this
The Act reflects a growing trend in food regulations requiring
the production of increasingly detailed nutritional information on
food, including the recent proposed changes to nutritional labels
by the FDA noted above. If passed, the Act would have important
implications for both food service providers and consumers in
Ontario. While it remains to be seen whether or not the Act will
become law in Ontario, the fact that it is proposed highlights a
heightened focus by regulators and consumers on the nature and
level of nutritional information disclosure that should be provided
with food. We will continue to monitor the Act as it progresses
through the provincial legislative process.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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