Ontario Passes Making Healthier Choices Act, 2015

The Ontario Legislature passed, on May 26, the Making Healthier Choices Act, 2015 (formerly Bill 45), which makes amendments to the Smoke-Free Ontario Act and implements two new acts, the Healthy Menu Choices Act, 2015 and the Electronic Cigarettes Act, 2015. The Act has not, as of this writing, received Royal Assent.

The Healthy Menu Choices Act requires restaurants that have 20 or more locations in Ontario (including franchisees, etc and based on similar menu choices and names) to display “the number of calories for every standard food item” on the menu, or on a label or tag attached to the item. “Combo” meals at chain restaurants must also show the total calories for the “Combo”. Fines for breach of the Act by a corporation can be steep; up to $5,000 per day for each day the calories aren’t posted, and up to $10,000 a day for subsequent offences. The penalties are explicitly extended to directors and officers of the company. The Healthy Menu Choices Act doesn’t come into force until January 2, 2017.

The Electronic Cigarettes Act, 2015 is designed to capture e-cigarettes under all the same restrictions as tobacco cigarettes, including age restrictions (19 plus) and making e-cigarettes subject to the same smoking bans and promotion restrictions as ordinary tobacco products. It does not prohibit the sale of e-cigarettes. The Act will come into force on a date yet to be proclaimed. With this Act, Ontario joins Nova Scotia in addressing e-cigarettes at the provincial level.

At the federal level, Health Canada is working on a new regulatory framework for e-cigarettes, with a policy or plan to possibly be revealed later this year, following prompting from the House of Commons Standing Committee on Health in March (the report of the standing committee requires a response from Health Canada by July 8, 2015). Currently, the fact that e-cigarettes are unapproved medical devices (and a public warning by Health Canada not to use them issued in 2009) has not materially restricted importation, sale and use of the devices.

Finally, amendments to the Smoke-Free Ontario Act include tweaks to increase penalties and to ban flavoured tobacco products. Particular flavours may be exempted by yet-to-be-promulgated regulations, and we may expect that menthol will make the exemption list.