Canadian agency rules “Produce of Israel” labels violate Canadian law

We are pleased to announce that the Canadian Food Inspection Agency (CFIA) has ruled that “Product of Israel” labels affixed to wines produced in Israel’s illegal West Bank settlements violate Canadian consumer protection law.

The CFIA’s decision is the latest chapter in a half-decade legal battle that began in January 2017. At that time, Dr. David Kattenburg, a member of Canada’s Jewish community, filed a complaint against two wines made in the Israeli, West Bank settlements of Psagot and Shiloh. Dr. Kattenburg argued that, because those settlements are situated on Occupied Palestinian Territory in violation of the Fourth Geneva Convention, the wines produced in those settlements were falsely labelled as “Product of Israel”.

In July 2017, in response to Dr. Kattenburg’s complaint, Canadian authorities notified wine vendors in Ontario that these settlement wines were falsely labeled. Within days of this notification, however, the Government of Israel and pro-Israel lobby groups launched a campaign to pressure the government of Justin Trudeau into reversing the decision. Within 48 hours, the CFIA reversed itself, and even issued an apology.

Dr. Kattenburg then retained Ontario lawyer Dimitri Lascaris to commence a judicial review application in the Federal Court of Canada (FCC). In July 2019, the FCC ruled that the labels affixed to these wines were, indeed, “false, misleading and deceptive”.

The Government appealed. In May 2021, the Federal Court of Appeal dismissed the Government’s appeal, but rather than simply affirming the lower Court’s decision, the Court of Appeal ordered the CFIA to explain its decision after receiving further submissions from Dr. Kattenburg and Psagot Winery.

Dr. Kattenburg’s latest submissions, which were filed with the CFIA in September 2021, included land deeds issued by Israeli authorities which showed that the Psagot Winery was situated entirely on land stolen from its Palestinian owners.

In its most recent decision, issued on May 13, 2022, the CFIA ruled that:

Global Affairs Canada (GAC) has informed the CFIA that Canada does not recognize permanent Israeli control over territories occupied in 1967 (this includes the West Bank) and that the West Bank is a territory outside of the internationally recognized boundaries of the State of Israel. In addition, GAC has informed the CFIA that Canada considers that there is no recognized country where the two wines in question were produced, although these wines were produced in an area administered by the State of Israel…

Given the above elements and the totality of the information provided on the applicable two wine labels, the voluntary claim “Product of Israel”, without clarifying information, is considered “false” under the provisions of the Food and Drugs Act, the Safe Food for Canadians Act and the Consumer Packaging and Labelling Act.

We are grateful to and commend the CFIA for restoring the decision that it initially rendered in July 2017.

At this stage, it is not known whether Psagot Winery will seek a judicial review of the CFIA’s most recent ruling. If it does so, this legal odyssey will continue — potentially for years — but even if Psagot Winery elects not to seek judicial review, the dispute could go on. The reason for this is that the CFIA’s latest decision leaves considerable room for more chicanery.

In its latest ruling, the CFIA did not declare explicitly what label it would consider to be appropriate. Rather, it simply stated:

These wines were not produced within the internationally recognized boundaries of the State of Israel and there is no clarifying information included on the labels in question to inform a consumer that the two wines in question were produced in an area of the West Bank administered by the State of Israel. [Emphasis in original.]

As a result of this unfortunate formulation, we can easily imagine that the producers of West Bank settlement products will now employ labels on which the phrase “Product of Israel” is prominently displayed, but which is accompanied by the phrase (in small print) “Territory administered by Israel.”

In our view, because these products are the fruits of war crimes, they should not even be allowed into Canada, but if they are to be sold in Canada, their labels must disclose explicitly that they were produced in an Israeli settlement that is situated on “Occupied Palestinian Territory.” Such a label would be consistent with a 2019 decision of the European Court of Justice relating to wines sold in Europe by Psagot Winery’s European affiliate. At the end of the day, the phrase “territory administered by Israel” is grossly inadequate.

Furthermore, wine labeling must be regionally consistent. Recently, the Liquor Control Board of Ontario ruled that Palestinian wines produced in the Israeli-occupied West Bank must be labeled ‘Product of West Bank,” rather than ‘Product of Palestine’. For consistency, so must wines produced in Israeli settlements in the West Bank. ‘Product of West Bank (Palestinian)’ and ‘Product of West Bank (Israeli settlement)’ would be regionally consistent and fully accurate.

On a related issue, responding to Canadian Charter of Rights-related arguments put forward to the FCC by counsel for Independent Jewish Voices, the CFIA states in its May 13, 2022 redetermination that “Charter provisions have no application in this redetermination.” Specifically, the CFIA states: “… consumer choice in selecting a wine remains unrestricted by the government, allowing consumers to continue to act in line with their conscience.”

Although we disagree with the CFIA’s conclusion that the Canadian Charter of Rights has no application here, we are pleased by the CFIA’s acknowledgement that Canadian consumers make choices based on personal conscience. Canadian consumers wishing to avoid a wine product produced in flagrant violation of international law have every right to be informed, explicitly, that a wine product was produced in an Israeli settlement established in contravention of Canada’s own Geneva Conventions Act.

We are hopeful that, once importers of Israeli settlement products adapt to the new ruling, the CFIA will take steps to ensure that the labels on these products contain all material information that Canadian consumers require in order to make informed purchasing decisions. If the CFIA fails to do so, we will continue to pursue all remedies available to Dr. Kattenburg under Canadian law.

Finally, Dr. Kattenburg and counsel look forward to arguing the above points in the course of consultations the CFIA will initiate later this year, where “input will be sought from interested stakeholders on policy relating to what might be acceptable origin declarations in this and similar circumstances.”

The CFIA’s full redetermination decision can be viewed here.

A version of this post first appeared on Dimitri Lascaris’s website on May 14, 2022.