Healthy Menu Choices Act, practice points

As we previously reported, the Healthy Menu Choices Act, 2015 came into force on January 1, 2017. The Act stipulates that owners of food service premises that are part of a chain with 20 or more locations in Ontario must display prescribed calorie information for every standard food and beverage item that is listed or depicted on a menu (whether printed or electronic) or in an advertisement, subject to certain exceptions. Further, the Act stipulates that a prescribed contextual statement (which outlines average calorie intake requirements) must also be included on these same menus and advertisements, subject to certain exceptions.

Over the course of the last few months, owners of food service premises have been working vigilantly to update their menus and advertisements to comply with the Act. We hope that the following points regarding the Act will be useful in this regard:

1. Food or drink items that are offered for sale for less than 90 days during the calendar year (whether such days are consecutive or not) are exempt from the purview of the Act, and therefore are not subject to the calorie disclosure requirement.
2. The definition of "standard food item" in the Act is supplemented by its Regulations, which clarify that the "standard food item" must also be a "restaurant-type food or drink item" (i.e. a food or drink item that is either served in a regulated food service premise or processed and prepared primarily in a regulated food service premise, and that is intended for immediate consumption on the premises or elsewhere without further preparation by a consumer before consumption).
3. Once it is determined that calorie disclosure requirements apply in respect of a menu or advertisement, it is important to consider all of the prescribed rules governing how the information must be displayed, as many of the rules do not always apply.
4. There is a distinction in the Act between advertisements that are "distributed or available outside the regulated food service premise" (i.e. offsite advertising) and those that are "at the regulated food premise" (i.e. in-store advertising). Most importantly, the former are exempt from the calorie disclosure and contextual statement requirements if they do not include a price or do not include a method of placing an order. Also, the contextual statement is generally not required for advertisements that are displayed at a regulated food service premise (i.e. in-store advertising).

It is important to note that particular care must be taken to assess the particulars of any given situation against the requirements of the Act, as many of its provisions are very prescriptive and have variable application. We are also aware that the Act is currently being actively enforced and, as such, continued vigilance is key.