Contested Territories: CFIA Launches Consultation on Country of Origin Claims

In 2017, bottles of wine appeared in Liquor Control Board of Ontario (“LCBO”) stores, which displayed labels with “Product of Israel” as their Country of Origin. Some consumers took issue with this origin claim, though, as the wine came from the West Bank – a contested territory with a history of Palestinian existence. These consumers felt that it was erasure to label the wines as Israeli when, in fact, the grapevines could be found in the West Bank. Complaints to the LCBO ensued, which prompted the LCBO to contact the Canadian Food Inspection Agency (“CFIA”) for guidance, and then a stickering campaign to re-label the wines as “Product of West Bank.”

However, the discussion did not stop there, as some in the Canadian, Jewish community disagreed with the required stickering of these wines, and demanded that CFIA re-evaluate its decision to revise the label and halt importation. Suddenly, CFIA was forced to take a position in an intensely geo-political, territorial dispute – wildly outside of the purview or mandate of Canada’s humble regulator of foods, feeds, seeds, and so on.

GSJ & Co. submitted an Access to Information Act (“ATIP”) request in November of 2022 regarding this very issue. The request revealed nearly 3,000 pages of both panicked and measured correspondence, research, and surprising collaboration between the CFIA, Global Affairs Canada, the LCBO and the provinces, in an attempt to understand the situation, provide a fair decision, and attempt to align CFIA’s position with Canadian foreign policy on the matter.

In the face of this scrutiny, CFIA’s decision, to have the importer sticker these wines “Product of West Bank”, was brought before Federal Court for a judicial review in Kattenburg v. Canada (Attorney General) and determined to be incorrect. An appeal was dismissed at the Federal Court of Appeal in 2020 and the Supreme Court of Canada denied an Application for Leave in 2021. Per the Canada-Israel Free Trade Agreement, and the requirement of labels to display a Country of Origin – not territory (barring some exceptions related to the Americas) – the Federal Court ruled that wines from the West Bank are appropriately labelled “Product of Israel”, in keeping with the Food and Drug Regulations (“FDRs”).

The discussion persisted, though, and in April of 2022, further complaint occurred when Palestinian consumers found bottles of wine, labelled as “of Palestine”, stickered over with a “Product of Israel” sticker.

There is an ongoing need to examine how we label origin claims on food and beverage, and what may be acceptable to display on a label without providing false, misleading or deceptive information to consumers. Canada’s approach to country-of-origin labelling (“COOL”) has been under scrutiny for several years. Our firm was involved in a CBC Marketplace report on apple juice labelling, for example, and Canada’s approach to labelling wine made from or blended with imported grapes took years of lobbying by domestic vintners before CFIA updated its policy in the late 2010s.

With all of this background, it is no surprise that the CFIA has launched a Consultation on COOL, which runs until October 10, 2023, and asks whether food products from contested territories may display the geographic region or territory where the food was produced, to help clarify where the product came from, without being false or misleading under Canadian labelling regulations.

Our first thought in response to this Consultation is: would a label be required to maintain the Country-of-Origin declaration, in addition to a geographic region or territory? And if so, what sort of font restrictions apply? If a bottle of wine states, “Product of Israel”, but then lists the West Bank in smaller font underneath this country declaration, how offensive may that be to some people?

We note that the CFIA’s Consultation specifically states that it does not pertain to a specific imported food or the status of a specific contested territory, and that many contested territories exist, within internationally recognized countries, which may be affected by similar labelling restrictions. And there are more ongoing territorial disputes than one might think: grain from Donetsk, Kherson, and Luhansk Oblasts come to mind. But we would be remiss to ignore the timeliness of publishing this Consultation so soon after the “Product of Israel” wine discussion: this is clearly about the West Bank.

We should also point out that origin claims are required only on specific food and beverage products: Country-of-Origin labelling must appear on brandy and wine, while a foreign state must appear on the labels of imported dairy products, eggs and processed egg products, fish, fresh fruit and vegetables, honey, maple and meat products, and some processed fruit and vegetable products.

In other words, this Consultation should be aimed at stakeholders involved with the importation of these specific food and beverage products, as they will be most affected in a commercial sense, but the CFIA also wants to hear from consumers, academics, and the food industry, in general. Without initial awareness from the general public about “Product of Israel” claims on wine, this discussion could have gone unattended to for awhile; thus, we encourage anybody with an interest in this topic, or a stake in the result, to reach out to the CFIA and provide an opinion.

For more information on the Consultation, please visit the CFIA website.

For labelling reviews, prior to bringing your product to market, or for help with making or responding to an ATIP request, please do not hesitate to reach out to us at info@gsjameson.com.