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Food Regulatory Changes

28-May-2010 [218]

• History of 2006 regulations

In this document there is:

1. A timeline of events related to the 2006 exemptions to Reg.562. 2. A summary and definitions of (non-)potentially hazardous foods. 3. A summary of Hansard quotes 4. The (very brief) beginning of research into statistics around reported food illnesses or other complaints connected to farmers’ markets and community food events.

1. Timeline:

June 2005: Farmers’ Markets Food Safety Working Group formed, including representatives from FMO, members of the the Association of Supervisors of Public Health Inspectors (ASPHIO), the Canadian Institute of Public Health Inspectors (CIPHI) and officials from OMAFRA and MOHLTC.

January 2006: 10 Recommendations from Working Group submitted, and feedback accepted until March (haven’t found any feedback documented). Recommendations include request for definition of farmers’ market in regulation, and need for research into the safety of selling ungraded eggs at market.

April/May 2006: Rumours spread that Health Ministry is planning to release stricter regulations (48 pages long) for farmers’ markets and church suppers, despite lack of evidence of food illnesses at either type of event. Smitherman backs down after public outcry from shoppers and farmers.

June 3 2006: Public outcry after health inspectors pour bleach on egg salad sandwiches at Art in the Park, where senior women were fundraising by selling sandwiches.

June 15 2006: Smitherman unveils revised exemptions for farmers’ markets and church suppers:

  • 2. (1) This Regulation applies to all food premises except,
  • (c) food premises owned, operated or leased by religious organizations, service clubs and fraternal organizations where the religious organization, service club or fraternal organization,
  • (i) prepares and serves meals for special events, and
  • (ii) conducts bake sales; and
  • (d) farmers’ market food vendors. R.R.O. 1990, Reg. 562, s. 2 (1); O. Reg. 308/06, s. 2 (1). o (3) The exemption provided for in clause (1) (c) is subject to the conditions set out in paragraphs 1 and 2 if a religious organization, service club or fraternal organization mentioned in that clause prepares and serves meals for a special event to which the general public is invited, and hazardous food that originates from a food premise that is not inspected under this Regulation is included in such a meal: 1. Patrons attending the special event shall be notified in writing as to whether or not the food premise has been inspected in accordance with this Regulation. The notice shall be posted in a conspicuous place at the entrance to the food premise at which the special event meal is held. 2. The operator must keep a list of all persons who donate hazardous food for the special event meal and must provide a copy of that list to a public health inspector on request. The list must contain each donor’s name, address and telephone number in full. O. Reg. 308/06, s. 2 (2).

And includes the following definitions:

  • “farmers’ market”* means a central location at which a group of persons who operate stalls or other food premises meet to sell or offer for sale to consumers products that include, without being restricted to, farm products, baked goods and preserved foods, and at which the majority of the persons operating the stalls or other food premises are producers of farm products who are primarily selling or offering for sale their own products; “farmers’ market food vendor” means the operator of a stall or other food premise that is located at a farmers’ market;
  • “farm products”* means products that are grown, raised or produced on a farm and intended for use as food and include, without being restricted to, fruits and vegetables, mushrooms, meat and meat products, dairy products, honey products, maple products, fish, grains and seeds and grain and seed products.

August 28, 2006: Staff report sent from Toronto Public Health, Medical Officer of Health David McKeown to the Board of Health, requesting that the exemptions be changed so that 1) only farm vendors at markets be exempt 2) only special events with less than 1,000 people be exempt 3) the ministry of health work more closely with public health units to apply the exemptions.

One of the main concerns expressed is that under the exemption, inspectors can only act if they can prove there is a health hazard (eg. If they see raw chicken left out for a prolonged period of time)—they cannot enforce the use of proper equipment (eg.handwashing stations, etc) and practices needed to prevent health risks.

October 2006: ASPHIO Guidelines are created ASPHIO guidelines [[,]] including 50%+1 interpretation of exemption, and adds to the definitions for farms, religious organizations, fraternal organizations, service clubs, and hazardous and non-hazardous foods. Further lists of hazardous/non-hazardous foods are given in the appendix [see separate section on hazards].

The guidelines also stress the fact that the Minister of Health has agreed that the exemptions are only from Reg.562, not from the Health Premises Protection Act (HPPA). Some key elements of the HPPA are:

  • Section 10 (duty to inspect re: health hazards)
  • Section 13 (power to issue an order re: health hazard)
  • Section 16 (food premises notification of their intent to commence operation)
  • Section 17 (prohibition on sale of food unfit for human consumption)
  • Section 18 (prohibition on sale of unpasteurized milk or milk products)
  • Section 19 (seizure and/or destruction of food deemed unfit for consumption)
  • Section 41 (right of entry and conducting examinations, investigations, tests)

2. Definitions of Hazardous/Non-hazardous Foods


One problem shared by the various documents dealing with the exemptions is the definition of potentionally hazardous and non-hazardous foods. Below, I’ve included each reference that’s made to these and similar terms. The reasons why these terms are so important are:

a)The exemption only applies to events with hazardous foods if the organizers have the list of food donors and the ‘food not inspected’ sign, which implies that the organizers need to know if they have hazardous foods, in order to fulfill these requirements.

b)The main thrust of public health’s new role at exempt events is education around food safety, ie.what temperatures hazardous foods must be stored at, etc. Such guidelines are hard to follow if we aren’t told what a hazardous food is.

Certainly, most of the documents listed below agree that any food containing meat, fish, poultry, dairy or egg is a potentially hazardous food. But even for this definition, some baked goods containing dairy or eggs (and not others) are sometimes considered non-hazardous, ie. pies, muffins, or cookies.

The ASPHIO and Reg.562 include scientific definitions for (non-)potentially hazardous foods. The problem here is that such definitions mean very little to a non-scientist cook who is simply trying to follow rules, unless they’re selling pickles or other acidic foods (in the case of the ASPHIO definition, that lists foods with a pH under 4.6 as non-hazardous).

In their recommendations, the Food Safety Working Group identifies the need for clearer definitions with regards to hazardous and non-hazardous foods:

“[We]...1. Propose that the Food Premises Regulation under the Health Protection and Promotion Act be amended in order to make exceptions, which would allow homemade non-potentially hazardous foods to be sold at a farmers’ market. 2. Propose that a list of non-potentially hazardous foods which can be prepared at home and sold at a farmers’ market" be provided in guidelines 4. Propose that a definition for "potentially hazardous food" that is scientifically based be provided in the Food Premises Regulation or Guidelines” (p.6).

Here, in recommendation #4, we may have found the request that the later documents’ scientific definitions responded to. We also see the request for the list of foods, which was provided in the ASPHIO. The problem with listing particular foods is that, while a list is helpful, it can never be exhaustive. If the regulation included a list of non-hazardous food that could be sold, would it mean that non-hazardous foods that weren’t on the list couldn’t be sold? It’s also hard to say how lists have been tested. Even so, an accurate list would definitely paint the clearest picture of what a potentially hazardous food is for the average person.

In the absence of a clear definition, food providers depend on the particular opinion of their health inspector. Sometimes inspectors apply regulations very strictly, and sometimes, as is implied in the TPH Report, public health units do not understand the regulations completely (we’ve also heard examples of this in practice). The TPH Report “requests the Minister to... c) take a more active role in explaining the amendments to health units and affected food premises” (p.1). There is some indication that inspectors are supposed to be understanding of people’s confusion, and to work with them to meet food safety guidelines, and the conditions of the exemptions. One of Smitherman’s goals in expanding the exemptions was to create a system that better supported farmers’ markets and church suppers, and protected them from over-zealous inspectors. Also, the ASPHIO discusses the need for flexibility on the part of inspectors:

''“For those special events where the general public is invited and hazardous foods are being served, the exempt group must ensure that the signs are posted and they maintain lists of sources of donated hazardous foods to meet the criteria for exemption from the FPR. Not posting signs if required to do so, results in the organization not meeting the criteria for exemption from the FPR. *Notwithstanding this requirement, PHUs should consider assisting these organizations in meeting the FPR requirements as per the spirit of the exemption. Hence the benefits of good communication between these organizations and PHU are essential.* Refer to the Appendices at the end of this document for examples of forms and letters.

Organizations that refuse to post or maintain the lists as required would not be exempt from the FPR.” (p.10, my red ink)''

The solution to this problem , from what I can gather, is just this—having inspectors educate, and work with food vendors to explain what foods they work with are hazardous or not. Most food vendors won’t have read any regulations on the topic, and they’ll rely on their inspectors, or information sent by the public health department, to be informed of the rules they should follow. They will also rely on their own common sense and experience, of course.

Definitions of (Non-)Potentially Hazardous Food

HPPA: Does not refer to hazardous food, but only to ‘health hazards’, where: ““health hazard” means,

(a) a condition of a premises, (b) a substance, thing, plant or animal other than man, or (c) a solid, liquid, gas or combination of any of them, that has or that is likely to have an adverse effect on the health of any person; (“risque pour la santé”)

Regulation 562: “hazardous food” means any food that is capable of supporting the growth of pathogenic organisms or the production of the toxins of such organisms” (S.1.1)

“...non-hazardous foods including, without being limited to, french fried potatoes, fruit juices, non-dairy smoothies, corn on the cob and whole fruit” (S.5.1 (1)) [Section on food carts]

TPH Report: “hazardous foods (contains milk, milk products, egg, fish, meat)... non hazardous foods (e.g. cookies, muffins, fruit filled pies, etc.)” (p.2)

“The risk of food borne illness is mainly determined by whether the food is “hazardous” and the entire preparation process. Foods that can support the growth of organisms that cause disease or that can support organisms producing toxins are termed hazardous foods. Examples of hazardous foods are dairy products, meat, poultry, fish and those that contain raw eggs (mayonnaise contains raw eggs).” (p.4)

“Food items deemed high risk are generally those that contain raw eggs, dairy products, meat, poultry and fish. Some examples would include the following:

  • Cakes/pastries with whipped cream, cheese or synthetic cream fillings
  • Dairy products (e.g., milk, cream, cheese, yogurt)
  • Food containing raw eggs as ingredients (e.g., custards, salads)
  • Fresh or processed meat, sausages.” (p.8)

Food Safety Working Group: “...home-made jams, relishes, preserves and baked goods (non-potentially hazardous foods)” (p.5)

“...potentially hazardous foods such as meat, eggs, canned foods, milk and other dairy products.” (p.7)

ASPHIO Guidelines: “Potentially Hazardous Foods as defined in the Food Retail and Food Services Code means any food that consists in whole or in part of milk or milk products, eggs, meat, poultry, fish, shellfish (edible mollusca and crustacean), or any other ingredients, in a form capable of supporting growth of infectious and/or toxigenic microorganisms. This does not include foods which have a pH level of 4.6 or below and foods which have a water activity of 0.85 or less.

Non-Potentially Hazardous Foods as defined in the British Columbia, Temporary Food Markets Guidelines means any food that does not support the growth or production of disease causing microorganisms or the production of toxins including foods with a pH level of 4.6 or below and water activity of 0.85 or less under standard conditions.

The following list contains examples of non-potentially hazardous foods
-apple sauce -fudge
-brownies -hard candy
-bread and buns (no dairy or cheese fillings) -butter tarts
-cakes (icing sugar only; no whipped cream) -dry cereal products
-chocolate -cinnamon buns
-dry noodles -pickles
-relish -cookies
-dried fruits -honey
-jam -jelly
-muffins -popcorn
-wine and herb vinegar -maple syrup
-toffee -fresh fruits and vegetables
-rice crispy cake -fruit pies and pastry

Note: Even though the foods in the above chart have been described as “non-potentially hazardous”, they can still be vehicles for transmission of pathogenic organisms. Fresh vegetables such as bagged spinach and sprouts that have been contaminated by poor food handling and/or production processes have been linked to recent outbreaks of food-borne illness.

The following list contains examples of potentially hazardous foods.

- antipasto

- cakes/pastries with whipped cream, cheese, or cream fillings

- processed beans, including baked, refried and bean salad

- herb and flavoured oils

- cabbage rolls

- canned cured meats

- low acid canned vegetables (e.g., pH 4.6 beans, asparagus, beets, carrots, mushrooms, broccoli, peas)

- canned products containing meat, vegetables, soups, sauces, cheese

- chop suey

- creamed corn

- dairy products (e.g., milk, cream cheese, yogurt)

- pesto

- fish and shellfish

- garlic spreads, oils

- guacamole

- juice (fruit and vegetable)

- tofu

- perogies

- fresh or processed meat, sausages

- salsa

- hummus

- foods containing eggs as ingredients (e.g., custards, salads)

- fresh shell eggs (washed, graded, whole, uncracked, and refrigerated)

  • Note: Graded eggs are a requirement of egg marketing regulations – violations should be reported to the Canadian Food Inspection Agency.

(Source: Adapted from the British Columbia – Guide for Temporary Food Markets)

3. Hansard references to public health inspections and farmers’ markets

From what I have been able to find in the records, the opposition began to complain of the government’s overly-zealous inspectors, or ‘jam police’, threatening farmers’ ability to sell their homemade jams and baked goods at market. Opposition MP’s used this issue as a centrepiece for a larger criticism of the government, which was that the Liberals’ were Toronto-centred and anti-farmer. Pressure from the opposition led the government to form the Farmers’ Markets Food Safety Working Group in June 2005, to examine the question of public health inspections and farmers’ markets. That group’s recommendations don’t seem to come up in Hansard, although they do seem to put forward issues that would be important to farmers (eg. the sale of ungraded eggs, the sale of non-potentially hazardous foods that could be prepared at home). A few months later, in the spring of 2006, the opposition refers to rumours of a 48-page document providing stricter regulations for health inspections at farmers’ markets, possibly including the requirement of public washrooms at all markets (see p.2-3 of Hansard quotes). Again, the opposition uses this document to show how little the government cares about farmers. The 48-page document also came up in the newspapers, and apparently, public outcry led Smitherman to back down from these stricter rules (see Food Fight at the Market, May 16, 2006). In Hansard, Smitherman goes on record that day saying that he supports farmers’ markets and community food events, and announces plans for a new policy in the fall stressing a shift from enforcement to public education. The Willistead women’s group incident, where inspectors poured bleach on egg salad sandwiches that were being sold to raise money to restore a local building, led to further attacks from the opposition in the legislature. In response, Smitherman announces the exemption of farmers’ markets from Reg.562.

After the exemptions were adopted, the opposition continued to characterize the government as anti-farmer and Toronto-centric. They said that the government backed away from stricter regulations for farmers’ markets only when the media brought the issue to the public’s attention, and there was considerable resistance to stricter rules.

4. Evidence of Food-Borne Illness connected to Farmers’ Markets or Community Food Events in Ontario (pre- and post-exemptions)

According to news reports in May 2006, Ontario’s Chief Medical Officer of Health, Sheela Basrur, couldn’t cite any cases of illness stemming from farmers’ markets (See “Food Fight at the Market”, etc ). The TPH recommendations provide statistics: “From 1993 to 1996, 4% of foodborne disease outbreaks in Ontario were linked to churches and clubs (this is disproportionately large considering that they probably account for much less than 4% of all meals)” (pp.3-4). In the Hansard records, the only references to food-borne illness stemming from markets have to do with raw milk (eg. Southlake hospital, 2005—although I haven’t found any reference to this on the internet other than in Hansard and one news report).

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