By Eric Mayzel and Noah Leszcz
On January 1, 2017, Ontario’s menu labelling legislation, the Healthy Menu Choices Act, 2015 (the “Act”) came into force. The Act requires that foodservice businesses with 20 or more locations operating in the province under the same name, or a substantially similar name, display calorie information for standard food and drink items, as well as a prescribed statement regarding recommended daily caloric intake.
The Act has broad application, and failure to comply can result in significant fines. Owners and operators of foodservice premises operating in Ontario should remain informed of the requirements of the Act and ensure that they are in compliance.
Who does the Act apply to?
The Act applies to any foodservice premise that prepares food for immediate consumption, either on the premises or elsewhere, and that meets one of the two following requirements: (1) it is part of a chain of 20 or more locations in Ontario that operate under the same or a substantially similar name and that offer the same or substantially similar standard food items (regardless of who owns the locations); or (2) it is a cafeteria-style foodservice provider that sells food to the general public, and that is owned or operated by a person that owns or operates 20 or more such businesses in Ontario.
Certain types of food premises are exempt from the requirement to display caloric information, including premises that operate for less than 60 days in a calendar year, or that are located in a school, private school, correctional institution, or child care centre.
Based on the broad definition above, the Act potentially applies to a wide range of foodservice providers, including not only restaurant chains, but also grocery and convenience stores, bakeries and coffee shops, movie theatres, and other businesses that prepare food for immediate consumption on or off-site.
What items are subject to the Act?
The Act requires that caloric content be displayed for every “standard food item” — a restaurant-type food or drink item that meets the following three criteria: (1) it is sold in servings that are standardized for portion and content; (2) it is served or processed and prepared primarily in a foodservice premises that is regulated by the Act; and (3) it is intended to be consumed immediately, on the premises or elsewhere, with no further preparation by the customer.
Certain food and drink items are exempt from the Act. The exempt items include: (1) items offered for sale less than 90 days per calendar year; (2) self-serve condiments that are available free of charge and not listed on a menu; (3) items prepared specifically for inpatients of a hospital or residents of a long-term care home; and (4) items prepared on an exceptional basis in response to a specific customer request, and which deviate from the foodservice provider’s standard offerings.
Additional items are exempt from the display requirements under the Act, including standard food items in a vending machine and certain items sold at grocery and convenience stores, such as deli meats, cheeses, olives, antipasti, prepared fruits and vegetables, and flavoured breads, buns and rolls. The Act also provides potential exemptions for alcoholic beverages, which are described later in this article.
How must caloric information be posted?
Food items listed on menus: The caloric content of each standard food item must be posted directly on each menu on which it is listed. The term “menu” is broadly defined, and includes paper menus, electronic menus, menu boards, and drive-through menus, among other things. Online menus, promotional flyers, and advertisements may be exempt if they do not list the prices for standard food items or if they do not list the standard food items that may be ordered for delivery or takeaway.
Food items on display: Where standard food items are put on display at the regulated food service premises, the caloric content must be posted on a label or tag identifying the item. However, that requirement does not apply to alcoholic beverages that are on display, standard food items that are labelled with a prescribed nutritional facts table, or standard food items available in a vending machine.
Display format for menus, labels and tags: The Act and its Regulations contain detailed requirements for how caloric information is to be displayed. For example, the information must be next to, and in the same font and at least the same size as, the name or price of the standard food item to which it refers. The Act contains specific display requirements for items that are available in several flavours, varieties or sizes, as well as for combination meals, items intended to be shared, and optional toppings, sauces, dressings, and condiments.
Signage for self-serve food items: For self-serve food items, such as buffets or soda dispensers, a regulated food service premises must publicly post one or more signs setting out the number of calories per serving and the relevant serving size. Each sign must be in close proximity to the self-serve item, include the name of the item, and be positioned in a way that an individual could reasonably be expected to associate the caloric information with the item, among other requirements.
Alcoholic beverages: Alcoholic beverages are exempt from the display requirements of the Act as long as a specific chart setting out the approximate caloric content of standard alcoholic beverages is listed on a menu, label or tag, in a prescribed format. A copy of the chart, and the specific formatting and placement requirements, are set out in the Regulations to the Act.
Requirement to post a contextual statement
In addition to posting itemized caloric information, regulated foodservice premises must also clearly and openly post one of the following two contextual statements:
“The average adult requires approximately 2,000 to 2,400 calories per day; however, individual calorie needs may vary.”
“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 statement may be used. The statement must be contained in menus in a prescribed format, and may also be required to be posted on signage in certain circumstances. French versions of the contextual statements are provided in the Regulations to the Act.
Consequences of non-compliance
Inspectors appointed under the Act may inspect a regulated foodservice premises or a business premises of a company that owns, operates, franchises, or licenses one or more regulated foodservice premises. Non-compliance may result in a fine being assessed against the owner or operator of the regulated foodservice premises. For corporations, fines are fixed at up to $5,000 for each day on which there is non-compliance and $10,000 per day for any second or subsequent offence. For individuals, fines are fixed at up to $500 for each day of non-compliance, and $1,000 per day for a second or subsequent offence.
A director or officer of a corporation that owns or operates a regulated foodservice premises is required to take all reasonable measures to ensure compliance and is subject to the fines described above for any violation of that duty.
The Act also raises potential implications for franchisors. It applies to any person who owns or operates a regulated foodservice, which is defined to mean a “person who has responsibility for and control over the activities carried on at a regulated foodservice premise, and may include a franchisor…” Franchisors of restaurant or foodservice systems operating in Ontario are encouraged to speak with counsel regarding the application of the Act and the prospect of franchisor liability.
Similar food labelling initiatives
Ontario is the first province to introduce mandatory legislation of this sort. However, in 2011, British Columbia implemented the Informed Dining Program, which is a voluntary program aimed at providing consumers with increased nutritional information in foodservice establishments, particularly with respect to the caloric and sodium content of each menu item. At the federal level, the Canadian Food Inspection Agency is in the midst of a food labeling modernization initiative, suggesting that menu labelling and food labelling reform will remain an important issue in the years to come.
About the authors:
Eric and Noah are franchise lawyers at Cassels Brock and Blackwell LLP, a Canadian law firm of more than 200 lawyers and a national leader in franchise law. This article does not constitute legal advice. For further guidance please contact Eric (firstname.lastname@example.org) or Noah (email@example.com).