‘Made in Israel’ wine-labelling case sent back to food agency on appeal

A finding that wine from the West Bank can be labelled as a product of Israel was not reasoned properly and should now be thrashed out again, the Federal Court of Appeal has ruled.

As a result, the appellate court said the politically sensitive case should go back to the Complaints and Appeals Office of the Canadian Food Inspection Agency.

“The administrative decision maker must demonstrate that its interpretation of the relevant provisions is consistent with their text, context and purpose,” Chief Justice Marc Noel said. “Here this demonstration is totally lacking.”

The case arose in 2017, when Dr. David Kattenburg of Winnipeg raised concerns that wines produced by Psagot and Shiloh Winery, in the West Bank, were from Israeli settlements in the occupied territories, not Israel itself. He argued the wines should not, under Canadian law, be branded as Product of Israel.

The Canadian Food Inspection Agency initially sided with him. However, the agency reversed course after some Jewish groups protested and Global Affairs Canada said the West Bank could be considered Israeli territory under the Canada-Israel free trade agreement.

In July 2019, a Federal Court judge found the settlements were not part of the State of Israel and the labelling was therefore misleading and deceptive.

She sent the case back to the food inspection agency, saying consumers needed to know exactly what they were buying.

“One peaceful way in which people can express their political views is through their purchasing decisions,” then-judge Anne Mactavish wrote, prompting the federal government to appeal.

In its analysis, the Federal Court of Appeal said the food agency was required to interpret and apply Canadian laws to decide whether the wine labels were indeed false or misleading.

The view of Global Affairs that the West Bank falls under the Canada-Israel Free Trade Agreement played a “determinative role” in the food agency’s decision that the labelling was legal, Noel said. However, that was not enough to decide whether the agency’s ruling had been reasonable, he said.

“We simply have no idea how the agency construed its legislation in coming to the conclusion that the labels are compliant,” Noel said.