Canada: Now In Force: Ontario's Healthy Menu Choices Act, 2015

Ontario's Healthy Menu Choices Act, 2015 (the "Act") and its regulation (the "Regulation") came into force on January 1, 2017. Food service premises with at least 20 locations in Ontario must now comply with the Act's food labelling requirements, focused on displaying calorie information for most food and drink items offered for sale. A copy of the Act and the Regulation may be found here.

What businesses are regulated under the Act?

Many restaurant chains, grocery and convenience stores and other businesses in Ontario fall under the definition of a "regulated food service premise" under the Act. A "regulated food service premise" is a "food service premise" (a food premise that prepares food for immediate consumption or sold or served in a form that will permit immediate consumption on the premises or elsewhere) that is either:

  1. part of a "chain of food service premises", meaning it is one of 20 or more locations in Ontario operating under the same or substantially the same name, regardless of ownership, offering the same or substantially the same "standard food items"; or
  2. any other food service premise provided for in the Regulations. The Regulations set out that cafeteria-style food service premises selling food to the general public that are owned or operated by a person that owns or operates 20 or more cafeteria-style food service premises in Ontario are regulated food service premises.

Regulated food service premises that operate for less than 60 days a year or are located in a school, correctional institution, or child care centre are exempt from the display requirements under the Act.

What food and drink items are subject to the new labelling requirements?

Regulated food service premises are required to display the number of calories for every variety, flavour and size of "standard food item". A standard food item is a restaurant-type food or drink item offered for sale in servings that are standardized for portion and content, served or processed and primarily prepared in a regulated food service premise, and that is intended for immediate consumption on the premises or elsewhere without further preparation by a consumer.

The following food and drink items offered for sale at regulated food service premises are exempt from the display requirements applicable to standard food items: (i) self-serve condiments available free of charge and not listed on menus, (ii) food and drink items offered for sale for less than 90 days a year, (iii) food and drink items prepared on an exceptional basis in response to a specific customer request that deviates from the offered standard food item, and (iv) food and drink items prepared specifically for inpatients of a hospital or psychiatric facility or for residents of a long-term care or retirement home. Certain standalone food items offered in grocery and convenience stores, such as deli meats, cheeses, olives, antipasti and prepared fruits and vegetables are exempt from the Act's display requirements. The requirement to display calorie information does not apply to standard food items that are alcoholic beverages, if language prescribed in Section 7 of the Regulation is displayed setting out the approximate caloric amounts of standardized serving sizes of certain standard alcoholic beverages.

How must information about standard food items be displayed?

  • Where and What to Display: Calorie information must be displayed (i) on each menu on which the standard food item is listed and (ii) if the standard food item is on display (excluding alcoholic beverages and standard food items in vending machines), on a label or tag identifying such item. "Menu" is broadly defined and includes paper and electronic menus, menu boards and drive-through menus. Online menus, advertisements and promotional flyers are exempt from the Act's display requirements if they (i) do not list prices for standard food items or (ii) do not list standard food items that can be ordered for delivery or takeaway and do not provide a method to place such an order. In addition to displaying calorie information, a regulated food service premise must display on every menu one of the following contextual statements (or French equivalent):

    1. "The average adult requires approximately 2,000 to 2,400 calories per day; however, individual calorie needs may vary."

      or
    2. "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."
    As of January 1, 2018, only the second contextual statement noted above may be used. Additional signage requirements to display the contextual statement apply when an individual ordering food or drink or serving himself or herself cannot readily see a menu containing the contextual statement.
  • How to Display: Section 6 and 9 of the Regulation set out how calorie information and the contextual statement must be displayed, including the placement, content and format of such information. The Regulation also provides specific rules for displaying calorie information for optional standard supplementary items (toppings, sauces, dressings or condiments), standard food items intended to be shared among customers and combination meals. Section 8 of the Regulation sets out the signage requirements for food or drink items that customers serve for themselves.

Determining Number of Calories

The Regulation requires that the number of calories in each standard food item be determined by laboratory testing or a nutrient analysis method. In either case, the owner/operator of the regulated food service premise must reasonably believe that the method will accurately estimate the number of calories in the standard food item.

Consequences of Non-Compliance

Under the Act, inspectors have broad rights to inspect regulated food service premises or any business premises of a company that owns, operates, franchises or licenses such premises. The following fines may be imposed for contravening any provision of the Act or the Regulation:

  • For Individuals: Fines of up to $500 for each day of non-compliance for a first offence and up to $1,000 for each day of non-compliance for a second or subsequent offence.
  • For Corporations: Fines of up to $5,000 for each day of non-compliance for a first offence and up to $10,000 for each day of non-compliance for a second or subsequent offence.

A director or officer of a corporation that owns or operates a regulated food service premise has a duty to take all reasonable care to ensure compliance with the Act and the Regulation and is subject to the penalties noted above for individuals if such director or officer fails to satisfy this duty.

Implications for Franchisors

The labelling requirements imposed under the Act and the Regulation are the obligations of the person who "owns or operates a regulated food service premise", which means a person who has responsibility for and control over the activities carried on at such premise, and may include a franchisor, a licensor, a person who owns or operates a regulated food service premise through a subsidiary and a manager of a regulated food service premise, but does not include an employee who is not a manager. In light of such new potential liability for franchisors of franchise systems with 20 or more locations in Ontario, prudent franchisors should ensure franchisees are operating in compliance with the Act and the Regulation and evaluate their operational involvement at the regulated premise to determine if any changes may be made to mitigate their potential liability as an owner/operator of such premises. Guidance on the applicability of the Act to franchisors may come, as the Lieutenant Governor in Council may make further regulations to clarify the meaning of "a person who owns or operates a regulated food service premise".

Other Food Labelling Reforms

Food labelling reform is also occurring at the federal level, led by the Canadian Food Inspection Agency ("CFIA") with its Food Labelling Modernization Initiative as well as by Health Canada as part of its Healthy Eating Strategy. Our latest reviews of such federal initiatives may be found here and here. CFIA's online questionnaire is available for completion until February 28, 2017 and Health Canada is accepting comments regarding its front-of-package labelling proposals until January 13, 2017.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2017

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Sean Brandreth
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.