It was mid-summer — peak ice cream season — when provincial government officials came knocking at the Hintonburg door of the Merry Dairy. 

Bernie Etzinger, the business partner and husband of owner Marlene Haley, had just completed his round of deliveries, stocking the shelves of local sales partners in anticipation of the busy long weekend ahead. But an inspector from Ontario’s Ministry of Agriculture, Food and Rural Affairs (OMAFRA) had a different idea. Armed with a compliant inspection report, she said that as of July 28, the Merry Dairy was in contravention of the Milk Act and the business could no longer sell its artisanal ice cream to third-party vendors. For every 24 hours past the inspector’s visit, the company risked fines of up to $2,000. Etzinger set off on a five-hour circuit to remove every pint of ice cream from local freezer shelves. 

“I felt like a criminal,” recalls Haley, “like we were being harassed.” She discovered that a complaint had prompted the untimely visit, and submitted a request to discover the catalyst who alerted OMAFRA — but doubts she’ll ever get to the bottom of it. 

When Haley opened the Merry Dairy in 2019, she applied for all the relevant permits, had her premises inspected, and made sure to put all the necessary hygiene requirements in place, such as triple sinks and regular monitoring of freezer temperatures.  Until this past July, she had been selling ice cream with no complaints. 

However, the Milk Act stipulates that in order to sell to third-party vendors, Haley must have a certified industrial dairy plant licence. The costs, according to Haley, can range from $250,000 to $1 million to build a licensed plant. She’s told it’s a question of safety. But all her ingredients are traceable: the base mix comes from Reid’s Dairy in Belleville, and Haley keeps detailed records of any additional ingredients. Onlookers say the law unjustly squeezes the small producer out of local markets, benefitting the big industrial brands such as Neilson, Chapman’s, Breyers, and Kawartha Dairy, simultaneously depriving consumers of choice. 

Other small ice cream shops in Ottawa — including Pascale’s, Moo Shu, Farinella, and Stella Luna Gelato — have also run afoul of the Milk Act. 

For Pascale Berthiaume, her eponymous store’s run-in with OMAFRA happened three years ago. “I’ve had to be practical and find ways to sustain operations,” says Berthiaume, who turned to dairy-free, plant-based options for wholesale clients, as well as sheep’s milk, which is not covered in the act. (Goat milk, however, is controlled by the act.) “That was an easy pivot as I was already producing these kinds of treats. I’ve been able to gain a customer base through this switch, but it means that I’ve also lost a foothold with my previous customers who know me for my rich dairy product, which is now more difficult for them to find.” 

Ottawa Centre MPP Joel Harden thinks it’s time to change the rules. “This is not just an ice cream shop,” he said, “it has galvanized our community.” Harden has pulled together a petition to advocate for a change to regulations in the Milk Act that would allow small producers to sell wholesale to local, third-party vendors, if all steps of their manufacturing are traceable. 

Meanwhile, Haley has been busy. She organized a tour of the city while selling pints from her ice cream truck; she parked it outside the Dairy Commission; she has delivered a letter to the directors of the Dairy Producers Association, the Dairy Farmers of Canada, and the Canadian Dairy Commission explaining the situation and requesting change. She has written a proposal that seeks to address concerns such as labelling, transportation, geographical reach of small-scale wholesale orders, as well as tracking, testing, and reporting. She has suggested solutions.  

Harden is busy building a robust argument, “so that the case can be made for us to test how wholesale could work in the Ottawa area. We need to figure out how regulations to the Milk Act could be changed. We’ll be bringing our best evidence to regulators, presenting the best policy that has been evidence-tested.” He sees “incredible returns” for consumers and producers, with no risk to health and safety. Amy Proulx, who is an instructor at the Canadian Food and Wine Institute at Niagara College, has been assisting Berthiaume throughout her experience. She says what’s needed  is a strategy similar to one adopted by meat processors, who lobbied to protect the small butcher shops and abattoirs, allowing for low-food-safety-risk products to be sold wholesale in small volumes, provided they were following basic traceability standards and had proper inspection and hygiene protocols in place for safety-risk reduction.  There is opportunity for regulatory innovation that would allow small businesses to create new food products, celebrate our unique food cultures, and create jobs.”

Let’s hope that OMAFRA is now ready to listen.