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 duty.
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.