The Ontario Government has recently released draft regulations for its new legislation that mandates providing caloric content on menus, the Healthy Menu Choices Act, and is seeking public input. 

On May 26, 2015, the Ontario government passed the Making Healthier Choices Act. This legislation created theHealthy Menu Choices Act (the Act), which will require regulated food service premises with 20 or more locations in Ontario that are selling prepared ready-to-eat food to post itemized caloric content on menus. The Act will come into force on January 1, 2017. Cassels Brock has addressed this new legislation and its potential impact on restaurant and food service franchisors in previous newsletters.

Last week, the Ontario Government released draft regulations to support the implementation of the menu labelling legislation. The draft regulations were based on government consultations with Ontario stakeholders that took place in the summer of 2015.

While the regulations provide specific detail on exactly what obligations restaurants and other food providers will have under this new legislative regime, they do not currently address the issue of franchisor liability for compliance by their franchisees, again, as addressed in our previous newsletters. The Ontario Government has advised that it is seeking additional input from the public on the draft regulations. Comments are due by October 26, 2015.

The key highlights of the regulations are as follow:

Who Is Subject To The Legislation?

Regulated food service premises (RFSPs) are subject to the Act. An RFSP is defined as any food premise where meals or meal portions are prepared for immediate consumption or sold or served in a form that will permit immediate consumption on the premises or elsewhere.

Standard Food Item

According to the Act, all “standard food items” are subject to the requirement to post caloric content. The Act defines standard food item as a food or drink item that is sold or offered for sale in servings that are standardized for portion and content. The regulations add that the food or drink item must be a “restaurant-type food or drink item.” The regulations state that this means a food or drink item that is either served in a RFSP or processed and prepared primarily in a RFSP, and that is intended for immediate consumption on the premises or elsewhere without further preparation by a consumer before consumption.

Calorie Posting

The caloric content of each standard food item must be posted on all menus. The term "menu" is defined broadly in the Act and includes a paper menu, an electronic menu, a menu board, a drive-through menu, an online menu or a menu application, an advertisement and a promotional flyer.

However, online menus and menu applications, advertisements and promotional flyers are exempt from this definition if they do not list prices for standard food items or if they do not list standard food items that are available for delivery or takeout.

The caloric content of the menu items must be displayed in accordance with specific requirements set out in the draft regulation concerning their placement, format, legibility, and must also take into account serving sizes, flavours, supplementary items (toppings), as well as other factors.

Contextual Statement

Every RFSP must post at least one sign that contains the following information: “The average adult requires approximately 2,000 to 2,400 calories per day; however, individual needs may vary.”

Where the RFSP sells or offers for sale standard food items that are targeted at children, a modified contextual statement must be used.

The signs must be posted so that at least one sign is readily visible by, and legible to, every individual who is in a place in the RFSP where customers order food or drink. However, a RFSP may be exempt from this obligation if the contextual statement appears on every menu in the premise, according to the stipulated rules, including the requirement to have the statement in the same font and size as the menu items, and that it appear on every page of a multi-page menu.

Exemptions

The following RFSPs are exempt from any requirement imposed by the Act:

  1. Food service premises that operate for less than 60 days in a calendar year.
  2. Food service premises that are located in a school or private school.
  3. Food service premises that are located in a correctional institution.
  4. Food service premises that are located in a childcare centre.

The following food or drink items are exempt from the definition of “standard food items,” and as such, are not subject to the caloric content requirement:

  1. Food or drink items offered for sale by the RFSP for less than 90 days per calendar year, whether consecutively or non-consecutively.
  2. Self-serve condiments that are available free of charge and that are not listed on the menu of the RFSP.
  3. Food or drink items that are prepared specifically for, a) inpatients of a hospital or psychiatric facility or b) residents of a long-term care home or a retirement home.
  4. Food or drink items that are prepared on an exceptional basis, in response to a specific customer request, and that deviate from the standard food items offered.

The regulations also address issues concerning signage where premises serve alcohol and signage where customers serve themselves food and beverages.