Earlier this year, David Kattenburg, a Jewish son of Holocaust survivors, filed a complaint against the Liquor Control Board of Ontario (LCBO) for authorizing the sale of wines made in the Israeli-occupied territories which were labelled as ‘Product of Israel’.
His complaint resulted in a notice being sent by the Canadian Food Inspection Agency (CFIA) to the LCBO, demanding that the sales of wines manufactured from grapes grown, fermented, processed and blended in the Israeli-occupied territories and labelled as ‘Product of Israel’ be discontinued in Ontario. The CFIA’s rationale for prohibiting the sales of these wines was that the labelling of these wines were false and deceptive to the average consumer – the wines were not made in Israel as the Canadian government did not recognise the Israeli-occupied territories as being part of Israel.
In its response to the CFIA notice, the LCBO issued a letter to its vendors ordering them to stop the sales of wines from two wineries (Psagot Winery Ltd, DN Mirrah Binyamin Psagot 9062400 or Shiloh Winery Ltd. Ma’ale Levona) which were labelled as “Product of Israel”, and to remove all wines from these two Israeli wineries from their store shelves. The letter further stated that Canada does not recognize Israel’s sovereignty over the West Bank and other occupied territories- including the Golan Heights, East Jerusalem and the Gaza Strip – and that any wine products from these regions labelled as products of Israel “would not be acceptable and would be considered misleading”.
For many observers, the controversy around the use of “Product of Israel” labels for wines may seem a little confusing. One may wonder, “What’s wrong with labelling wine made in the West Bank region as a Product of Israel?” “Isn’t the West Bank region an Israeli-occupied territory?” “What difference does it make if the wine is labelled as “Product of Israel” or perhaps, “Product of the Israeli-occupied territories”?
Actually, the labelling of food and in this case, wines, is far more complicated than that. There are strict rules guiding the correct labelling of foods in Canada.
The CFIA regulates the labelling of Alcoholic Beverages in Canada and has strict requirements in respect of ‘country of origin’ labelling for wines.
According to the CFIA,
“A wine may claim to be the wine of a country if:
a. the wine is made from at least 75 percent of the juice of grapes grown in that country and it is fermented, processed, blended and finished in that country; or
b. in the case of wines blended in that country, at least 75 percent of the finished wine is fermented and processed in that country from the juice of grapes grown in that country.
The declaration should be stated as “product of (naming the country)” or “(naming the county) wine”. For example: “Product of France” or “French Wine”.
The labels of products which do not meet the conditions mentioned above must describe the various origins on the label. For example:
-
Made in Canada from (naming the country or countries) grapes (or juices)” or
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“Blended in Canada from (naming the country or countries) wines”
This requirement means that in making a claim that a wine is from a particular country, it must be established that the wine was made from at least 75 percent of the juice from grapes grown in that country. There is a clear stipulation that where the wine does not meet the 75 percent standard, the labels of the products must clearly stipulate where the grapes were gotten from.
So, is the West Bank recognised as being part of Israel? West Bank and the Golan Heights, East Jerusalem and the Gaza Strip all comprise the Israeli-occupied territories. These territories were occupied by Israel during the Six-Day War of 1967. Under international law, the international community including the Government of Canada have deemed these Israeli-occupied territories illegal. Because these Israeli-occupied territories have not been recognised as part of Israel by the Government of Canada, labelling wines produced in these territories as “Product of Israel” is misleading labelling under subsection 5(1) of the Food and Drugs Act, RSC 1985 c F-27.
The issue here, in my view, is not whether these wines can be sold in Canada but whether or not they should be sold while improperly labelled as originating from a region which has not been internationally recognised as part of Israel.
What happened once the LCBO letter was sent out to vendors was quite intriguing.
B’nai Brith Canada, the Centre for Israel & Jewish Affairs and other Israeli lobby organisations protested loudly. In its statement, B’nai Brith Canada said
“it is expecting that the CFIA will soon rescind its recent decision to order the removal of certain Israeli wines from store shelves.”
Brith Canada argued that the free trade agreement between Canada and Israel entered into in 1997 allows products from the occupied territories to be labelled “Product of Israel”, regardless of recent Canadian official policies which did not recognise the West Bank as part of Israel.
On July 13, 2017, barely one week after the ban on the sale of the “Product of Israel” wines, the CFIA and LCBO backpedalled. On its website, the CFIA stated that it had not fully considered the Canada-Israel Free Trade Agreement before arriving at its earlier decision banning the sale of the “Product of Israel” wines in Canada. According to the CFIA,
” The Canadian Food Inspection Agency regrets the outcome of the wine labelling assessment which led to the Liquor Control Board of Ontario’s response regarding products from two wineries labelled as ‘Product of Israel’. Further clarification of the CIFTA indicates that these wines adhere to the agreement and therefore we can confirm that the products in question can be sold as currently labelled.”
The agreement cited by the CFIA is the Canada-Israel Free Trade Agreement which defines Israel as any territory where the country’s customs laws are applied. This would mean that for the purpose of the Free Trade Agreement, Canada recognised the Israeli-occupied territory as being part of the nation of Israel. This is contrary to the general position held by the Government of Canada with regards to these Israeli-occupied territories. Canada is a signatory to both the Fourth Geneva Convention and the Statute of Rome, which have been incorporated into Canadian domestic law. The Fourth Geneva Convention and the Statute of Rome consider the Israeli settlements in the occupied territory as illegal.
The complete turnaround by the CFIA and its interpretation of the Canada-Israel Free Trade Agreement has raised an important issue. How should the Canadian Government treat a bilateral trade agreement which violates a key aspect of its policy or existing international commitment?
It has been argued that the Canadian government, the CFIA and the LCBO were within their rights by banning wines that were improperly labelled as ‘Product of Israel’. According to Scott Sinclair, a senior research fellow with the Canadian Centre for Policy Alternatives, and the director of the Centre’s Trade and Investment Research Project,
” The Canadian government, the CFIA and the LCBO are well within their legal and trade treaty rights to insist that products from the occupied territories be clearly labelled as such. There is nothing in the CIFTA that prevents this. The whole trade argument is a red herring, simply an excuse to provide cover for the CFIA to backtrack under pressure.”
There have been recent calls for the review of the CIFTA in its entirety to ensure it complies with the Canadian Government’s stance on Israeli-occupied territories. Elizabeth May, the Leader of the Green Party of Canada stated:
“Canada shouldn’t be granting preferential treatment to products made in settlements that are in clear violation of international law. The free trade agreement therefore must be changed to reflect this.”
However, a review of the CIFTA is not that simple. Apart from being a policy issue, it has serious political undertones as well. The Statute of Rome and the Fourth Geneva Convention which both describe the settlements in the West Bank as war crimes have now been incorporated into domestic Canadian law. Canada also seeks to join the UN Security Council in 2018 and its willingness to adhere to UN decisions will be a top consideration in the review of its application. UN member states have been urged to differentiate between products originating in the Israeli-occupied territories and those from Israel. By reversing its ruling on the ‘Product of Israel’ wine controversy, Canada has not complied with the UN mandate to its member states.
David Kattenburg is not giving up on the challenge of the decision of the CFIA and LCBO. He has since filed a formal complaint with the CFIA’s complaints and appeals office in respect of the CFIA’s decision to continue to allow the sale of the two wines produced in the West Bank region and labelled as “Product of Israel”. His position is that the CFIA did not follow Canadian and international law in arriving at its decision. During an interview, Kattenburg said:
“I found this to be outrageous, because the settlements are illegal under international law. And here were these wines that said ‘made in Israel’ “
According to Kattenburg and his lawyer, Dimitri Lascaris, the purpose of the CIFTA was to eliminate trade barriers such as subsidies or tariffs and not to condone a blatant disregard of the labelling requirements in Canada.
Until the ‘Product of Israel’ wine controversy in Canada is settled, there will be lots of discussion on the responsibility of the Government of Canada in striking a balance between the defence of its policies and maintenance of cordial trade relations with its allies.
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