Christine Jackson, Lindsay Rauccio, Sarah McLeod, Nicole Kutlesa
Oct 27, 2015
The anticipated draft regulations under the newly passed Healthy Menu Choices Act (the Act) were released last month by the Ontario government. The draft regulations will support the implementation of the Act which will require restaurant chains and other food service providers with 20 or more locations operating under the same (or substantially the same) name in Ontario to make changes to the information they display on menus regarding standard food and drink items.
The draft regulations are aimed at clarifying the requirements for caloric posting, including providing guidance on where caloric information must be posted, what constitutes a standard food item, certain prescribed statements that must be posted and possible exemptions. The draft regulations are based on consultations the Ministry of Health and Long-Term Care undertook with key partners in the summer of 2015. The Ministry also sought additional public comments on the draft regulations that were due by October 26, 2015.
Overview of the Legislation
The Act received Royal Assent on May 28, 2015, but will not come into force until January 1, 2017. Once in force, the Act will require restaurant chains and other food service providers with 20 or more locations in Ontario operating under the same (or substantially the same) name to display the number of calories of all standard food or drink items on their menus. This includes not only quick-service restaurants, but also convenience stores, grocery stores and other businesses that sell meals prepared for immediate consumption, either on the premises or elsewhere.
The Act will require the display of the number of calories of each variety, flavour and size of food and drink items that are offered with standardized portions and content. The calorie content and prescribed information must be displayed on one or more signs, on each menu where the standard food item is listed and, if the standard food item is on display, on the food’s label or tag.
We previously wrote about the requirements and potential impacts of the Act in an Osler Update in December 2014 and again in May 2015.
Specific Application to Franchisors
Franchisors should be aware that the Act defines a person who owns or operates a regulated food service premise as a “person who has responsibility for and control over the activities carried on at the regulated food service 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 works at a regulated food service premise but is not a manager.” While the draft regulations provide guidance on the obligations restaurant chains and other food service providers will have under the Act, they do not address the issue of franchisor liability for compliance by their franchisees. Accordingly, as addressed in our previous Osler Updates, it remains too early to know with certainty how the Act will be applied to franchisors. However, it appears that a franchisor’s exposure to liability for compliance with the Act will likely be tied to the level of control (if any) it has over the activities carried on at the regulated food service premise.
Further Guidance on What Constitutes a “Standard Food Item”
Caloric content must be posted for all “standard food items,” which is defined in the Act as a food or drink that is sold or offered for sale in servings that are standardized for portion and content. The draft regulations further require that the standard food item must be a “restaurant-type food or drink item,” which is defined as a food or drink item that is either served in a regulated food service premise or processed and prepared primarily in a food service premise, and is intended for immediate consumption without further preparation by a consumer.
While the definition of “standard food item” remains fairly broad, the draft regulations provide for certain exemptions from what constitutes a “standard food item.” In particular, the following food or drink items are exempt from the definition of “standard food item”:
- food or drink items offered for sale for less than 90 days per calendar year (consecutively or non-consecutively)
- self-serve condiments that are available free of charge and are not listed on the menu
- food or drink items that are prepared specifically for inpatients of a hospital, private hospital or psychiatric facility, or residents of a long-term care home or retirement home
- 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 by the food service premise
Additional Clarity on Where Caloric Information Must be Posted
The Act requires the caloric content of each standard food item to be posted on all menus. The definition of “menu” is broad and includes drive-through menus, online menus, advertisements and promotional flyers. The draft regulations clarify the definition of “menu” by exempting online menus, menu applications, advertisements and promotional flyers if they do not list prices for standard food items, or if they do not list standard food items available for delivery or takeout.
The draft regulations also specify how calorie information is to be displayed on menus, including requirements for where calories are displayed and the size, format and prominence of the display. The draft regulations give additional guidance for standard food items that are intended to be shared among customers, that are available in a number of flavours, varieties or sizes, or that are offered with the option of adding standard supplementary items such as toppings. Specific instructions are also given for food service premises that offer food or drink items that customers serve for themselves and for food service premises that serve alcohol.
The draft regulations require that the number of calories in a standard food item be determined by either (a) testing in a laboratory or (b) a nutrient analysis method. The person who owns or operates the regulated food service premise must reasonably believe that the method will accurately estimate the number of calories in the standard food item. As noted above, under the Act the person who owns or operates the regulated food service premise may include a franchisor.
Requirement to Post Contextual Statement
In addition to the posting of certain caloric and other information, the draft regulations require that restaurant chains and other food service premises post one or more signs at every regulated food service premise that contain the following information: “The average adult requires approximately 2,000 to 2,400 calories per day; however, individual needs may vary.” Where the standard food items are targeted at children, the following alternative information may appear in place of the above statement: “The average child aged 4 to 9 years old requires approximately 1,200 to 2,000 calories per day, and the average child aged 10 to 13 years old requires approximately 1,500 to 2,600 calories per day; however, individual needs may vary.”
At least one sign must be posted so that it is readily visible by, and legible to, every individual in the regulated food service premises where customers order food and drink. Restaurant chains and other food service premises can be exempted from this requirement if the contextual statement appears on every menu in the premise and is on every page of the menu, in close proximity to the standard food items listed, and in at least the same size and prominence as the name or price of the menu items.
The draft regulations provide for certain exemptions to the application of Section 2 (Information to be Displayed) of the Act. In particular, restaurant chains and food service premises may be exempt from the obligations imposed by the Act if they operate for less than 60 days in a calendar year, or if they are located in a school, private school, correctional institution or childcare centre.
The Act will have a significant impact on a number of food service providers, including fast food restaurants, convenience stores, grocery stores, bakeries and coffee shops as well as entertainment venues like movie theatres, amusement parks and bowling alleys. Food service providers and franchisors should take action now to review their systems and develop an action plan for compliance with the Act and the draft regulations.