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Sam Trosow, Western University faculty of law

Mistake to look at wine decision as making determination about Middle East: law prof

Friday, August 02, 2019 @ 10:45 AM | By Ian Burns

Last Updated: Friday, August 02, 2019 @ 1:17 PM

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A Federal Court judge has ruled that wines being produced by Israeli winemakers in the West Bank cannot be labelled as “products of Israel,” with observers saying the decision may have broad implication for product labelling in Canada.

The case began when Dr. David Kattenburg, a self-described wine lover and activist, filed a complaint with the Canadian Food Inspection Agency (CFIA), asserting that the labels for the wines, Shiloh Legend KP 2012 and Psâgot Winery M Series, Chardonnay KP 2015, are incorrect as they are produced in Israeli settlements in the West Bank, which Kattenburg classifies as “occupied Palestinian territories.”

The CFIA initially agreed with Kattenburg’s position but subsequently reversed its decision, concluding the wines could be sold as currently labelled. After Kattenburg appealed to the CFIA’s Complaints and Appeals Office (CAO), the CAO noted that the Canada-Israel Free Trade Agreement defines Israeli “territory” as including areas where Israel’s customs laws are applied. As Israel’s customs laws are applied in the West Bank, the CAO concluded that there was no reason to request that the CFIA reconsider its decision, affirming that wines produced in the West Bank could be imported and sold in Canada labelled as products of Israel.

But Justice Anne Mactavish of the Federal Court sided with Kattenburg, holding that labelling the settlement wines as products of Israel “is both inaccurate and misleading, with the result that the CAO’s decision affirming that settlement wines may be so labelled was unreasonable.”

“While there is profound disagreement between those involved in this matter as to the legal status of Israeli settlements in the West Bank, I do not need to resolve that question in this case,” she wrote. “Whatever the status of Israeli settlements in the West Bank may be, all of the parties and interveners agree that the settlements in issue in this case are not part of the State of Israel.”

The federal government argued product labelling should not be informing Canadians about issues of international law in their wording of food products, and people could “just Google the names of the wineries” if they wanted more information. They pointed to a case in the U.K. Supreme Court, Richardson and another v. Director of Public Prosecutions [2014] UKSC 8, [2014] All ER 20, which dealt with a shop in London which was selling beauty products manufactured in an Israeli settlement which were labelled as being made by “Dead Sea Laboratories Ltd., Dead Sea, Israel.”

The government pointed out the U.K. court found the legislative intent behind the labelling legislation in question was consumer safety, and not accuracy relating to the political status of the territories in question. But Justice Mactavish noted the origin of the products in that case were “correctly labelled as the Dead Sea.”

“There is no comparable statement on the labels on the settlement wines. They do not identify the source of the settlement wines as being ‘Israeli settlements in the West Bank,’ ‘the West Bank’ or ‘Occupied Palestinian Territories,’” she wrote. “Rather they are identified only as coming from the State of Israel — something that the parties agree is simply not the case.”

Justice Mactavish wrote it was “apparent that freedom of expression issues were implicated in Dr. Kattenburg’s appeal.”

“There are few things as difficult and intractable as Middle East politics, and the presence of Israeli settlements in the West Bank raises difficult, deeply-felt and sensitive political issues,” she wrote. “[But] one peaceful way in which people can express their political views is through their purchasing decisions. To be able to express their views in this manner, however, consumers have to be provided with accurate information as to the source of the products in question.”

Justice Mactavish then remitted the issue of labelling back to the CAO for redetermination. The decision was released July 29 (Kattenburg v. Canada (Attorney General) 2019 FC 1003).

Dimitri Lascaris, who represented Kattenburg, said producers of food products are going to have to “think long and hard about what matters to consumers in Canada from an ethical perspective.”

“They cannot misrepresent with impunity. I don’t know if they were doing that before, but this is exactly what would have happened if the government had persuaded the court to adopt this position,” he said. “They would have been able to misrepresent matters of conscience to consumers and now they can’t do that under this ruling, which I think is a wonderful thing for consumer protection in this country.”

David Matas

David Matas, counsel for the League for Human Rights of B’Nai Brith

David Matas, who served as counsel for the League for Human Rights of B’Nai Brith, which intervened in the case, said the labels on the wines don’t say it was made in Israel, but rather a product of Israel, and one of the wines was being made in a territory under the sole control of Israel under the terms of the 1995 Interim Agreement on the West Bank and the Gaza Strip, also known as the Oslo II Accord.

“This wine is being made by Israelis under sole Israeli control,” he said. “So, the notion the decision was unreasonable, we don’t really agree with that. We think it’s appropriate to describe it as a product of Israel.”

Matas noted none of the parties in the case said the territory in question is part of the State of Israel.

“If there is no appeal or the appeal fails, the case goes back for redetermination by the CAO, and what they would do is either make the same recommendation they did before, or make a different one,” he said. “It would have to be consistent with the judgment, but they could come to the same conclusion with a better justification, which I think they could do, and that could well be considered reasonable by the court.”

Shimon Koffler Fogel, president and CEO of the Centre for Israeli and Jewish Affairs (CIJA), said after a preliminary review of the court’s ruling “CIJA believes there are substantive errors in the judgment.”

“Current labelling practices are fully consistent with the Canada-Israel Free Trade Agreement, as well as Canadian and international law,” he said. “This is why we are urging the government of Canada to appeal this misguided ruling. In the event of an appeal, CIJA will be consulting with legal experts and seeking intervener status to ensure Canadian and international laws are properly interpreted and applied.”

But Lascaris said the free trade agreement “has absolutely nothing to do with product labelling.”

“The free trade agreement has to do with barriers to trade,” he said. “It is a universally applicable requirement that country of origin labels be accurate. This was a complete red herring — the government never explained how this constituted a barrier to trade, and I think the court understood that there was really no argument there.”

Sam Trosow, Western University faculty of law

Sam Trosow, Western Law associate professor

Western Law associate professor Sam Trosow said it would be a mistake to look at the case as “making some sort of determination about the rights of parties in the Middle East.”

“If you look at this just purely as an administrative law decision, you have an agency that made a decision that went to its own internal appeals board and somebody sought a judicial review,” he said. “We are a country of laws and procedures, and one of those laws just happens to be product labelling. And we can’t set aside the established rules of product labelling or any other statutory regime just because there happens to be an interest group that wants to make a political point.”

But Trosow said he did agree with Lascaris the case has broad implications.

“Basically, what this judge said is there are Charter issues implicated here — in other words, Canadians have freedom of expression, and included within that freedom of expression is the ability to make statements through your purchasing decisions,” he said. “I think what is at stake here is the interests of Canadian consumers in having proper labelling. There is a very sophisticated statutory regime here, and it is of utmost importance that when products go on shelves the labelling be accurate and not misleading.”

A representative of the CFIA said the agency is “reviewing the decision as it pertains to its mandate.”