Labelling wine made in the West Bank as a “Product of Israel” is “false, misleading and deceptive,” a Canadian court has ruled.
In a bluntly worded ruling issued on July 29, the Federal Court granted a judicial review sought by David Kattenburg, a pro-Palestinian activist in Winnipeg, who claimed that it’s misleading to label wine made in Jewish settlements as a “Product of Israel,” because the international community, including Canada, does not recognize the West Bank as part of the Jewish state.
“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,” states the 43-page ruling from Judge Anne Mactavish.
However, “one peaceful way in which people can express their political views is through their purchasing decisions,” she wrote. “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.”
Canadian laws requires that food products, including wines that are sold in Canada, “bear truthful, non-deceptive and non-misleading country of origin labels.”
Labels stating that wines originate in Israel when they are made and bottled in the West Bank are “false, misleading and deceptive,” Mactavish wrote, and as such, they contravene the Consumer Packaging and Labelling Act and the Food and Drugs Act.
She sent the case back to the Canadian Food Inspection Agency’s complaints and appeals office (CAO) for reconsideration.
Israel’s foreign ministry said the court’s decision “encourages and lends support to boycotts and the BDS movement. Israel objects to this.” The ministry and the Israeli embassy in Canada “will continue to act against discriminatory treatment and the singling out of Israel in the matter of product labeling in Canada.”
The case dates to 2017, when Winnipeg professor and pro-Palestinian activist David Kattenburg complained to the Liquor Control Board of Ontario (LCBO) that two wines made in the West Bank and sold at the provincial liquor retailer were “falsely” labelled as “Product of Israel,” because international law and Canadian policy do not recognize the West Bank as part of the Jewish state.
Named in Kattenburg’s complaint were the Psagot winery northeast of Jerusalem and the Shiloh winery in Ma’ale Levona, a West Bank settlement southeast of Ariel. Both wines are kosher.
The Canadian Food Inspection Agency (CFIA) eventually ordered the LCBO to remove the wines from its shelves. Within a day, on the heels of pressure from Jewish organizations and input from Israel’s embassy in Ottawa, the agency reversed its decision, saying it had not considered a provision of the Canada-Israel Free Trade Agreement (CIFTA) that deals with the application of Israeli customs laws in the West Bank. The food agency said it regretted its earlier ruling and greenlighted the sale of the wines as labelled.
Kattenburg appealed to the CAO, which upheld the agency’s reversal. He then sought a judicial review of the CAO decision.
The daylong court hearing in May heard lawyers for the government argue that labelling laws are meant to address health and safety concerns, not territorial issues or personal political beliefs, and that the legality of Jewish settlements is “totally irrelevant” to the case.
Regarding that legality, “I do not need to resolve that question in this case,” the judge stated.
She agreed that identifying “settlement wines,” as Mactavish called them, as made in Israel “interferes with the ability of Canadian consumers” to make informed and conscientious choices.
Mactavish said there is “no suggestion” that most Canadians know that the Psagot and Shiloh settlements are in the West Bank. “This makes it all the more likely that consumers would be misled by labelling wines produced in these settlements as ‘Products of Israel.’ ”
And while the CAO’s decision was “unreasonable,” it’s “not appropriate” for the court to determine how the wines should be labelled, continued Mactavish. “That is a matter for the CFIA.”
As for Kattenberg, the complained of labels were “an affront to (his) conscience as a Jewish person and to (his) commitment to the rule of law as a citizen of Canada,” the decision noted.
Jewish organizations slammed the ruling.
B’nai Brith Canada, which intervened in the case, said it will ask the attorney general to appeal the ruling.
“In our view, it is reasonable and not at all misleading to label wines produced by Israeli citizens in Israeli-controlled territory as products of Israel,” said B’nai Brith CEO Michael Mostyn.
The ruling, he continued, “explicitly did not find that there is anything illegal about Israeli settlements east of the Green Line, or wines produced there.” B’nai Brith intervened in the case to argue that “there is nothing illegal about these Israeli communities in the Jewish homeland, so we see that part of the decision as a silver lining.”
The Centre for Israel and Jewish Affairs (CIJA) said there are “substantive” errors in the judgment and it too called on the government to appeal the “misguided” ruling.
CIJA said current labelling practices “are fully consistent” with the CIFTA, as well as Canadian and international law. It said it would seek intervener status in an appeal.
Claiming that wines made in the West Bank cannot be labeled as made in Israel “effectively endorses the anti-Semitic BDS campaign,” said Friends of Simon Wiesenthal Centre CEO Avi Benlolo.
Independent Jewish Voices, a pro-BDS group that also had intervener status in the case, said it was “pleased that the court reaffirmed the illegality of selling these wines to Canadian consumers as products of Israel. Many other products of illegal West Bank settlements are incorrectly labelled ‘Product of Israel,’ and we hope this ruling sets a precedent on which to base future challenges to this illegal labelling.”
Toronto lawyers Aaron Rosenberg and David Elmaleh, who closely followed the matter, called it “an absurd case that led to a troubling ruling.”
In an email to The CJN, they said that labelling products from “Israeli communities” in the West Bank as “Product of Israel” is “a reasonable practice in the context of a complex, protracted territorial dispute wherein large Jewish communities are situated in the Land of Israel.”
The decision “will undoubtedly encourage BDS activists to further exploit precious judicial resources and continue to make a farce of our justice system,” they wrote.
The CFIA “is reviewing the decision as it pertains to its mandate,” said Christine Carnaffan, a spokesperson for the agency.
The LCBO does not currently list any wines from the Psagot or Shiloh wineries, an official told The CJN.