Is it the responsibility of a producer of a product to convey to the consumer a clear label, even when the government provides conflicting stances on the subject? Without directly saying it, Mactavish MJ answered this question in the affirmative, when she ruled in Kattenburg v Canada (Attorney General) that wine from West Bank settlements could not be sold in Canada with a “Made in Israel” geographical indication.
The primary issue in this case was whether the labeling on the wine was false, misleading, or deceptive contrary to subsection 5(1) of the Food and Drugs Act (FDA) and subsection 7(1) of the Consumer Packaging and Labelling Act (CPLA). This issue arose from the requirement in section B.02.108 of the Food and Drug Regulations that “a clear indication of the country of origin shall be shown on the principal display panel of a wine.” Mactavish MJ’s key consideration was whether the “Made in Israel” label reasonably met these standards set out in the FDA and CPLA.
Striking, however, is the absence of any discussion of ss. 11.11 – 11.24 of the Trademarks Act (TA) which provides a regime for establishing protected geographical indications. Unlike the FDA and CPLA, the TA addresses producer discretion in geographical indications and its relation to consumer understanding, the very issue Mactavish MJ is trying to resolve. Furthermore, as Binnie J pointed out in Mattel, Inc. v 3894207 Canada Inc. the TA is “consumer protection legislation”. It therefore does not suffer from the scope issues Mactavish MJ attributes to the Canada-Israel Free Trade Agreement and Richardson and another v Director of Public Prosecutions, the sources brought by the plaintiff. While the TA was properly not adjudicated, as it was not raised by the parties, it could have provided helpful guidance.
The regime prescribed in the TA focuses on the question of consumer understanding of geographical rather than political boundaries. While it leaves ample room for discretion in this regard, the TA repeatedly references “the territory, or the region or locality of a territory, in which the wine … is identified as originating.” Therefore, a product falling outside of a specified political boundary, but still within the region or locality of such a “territory” could, by law, be indicated as originating from the territory. In other words, a wine produced in the Israeli region could properly be labeled as “Made in Israel” without being misleading.
The question is therefore reframed from whether the West Bank is part of the State of Israel, to whether it is within the region of Israel. This approach allows the producer to separate the politically charged foreign policy issues that Mactavish MJ refers to as “profound”, “difficult”, “intractable”, “deeply-felt” and “sensitive” from their requirement to inform the consumer. The reasonable person’s understanding of a region is still a matter in question, but the approach of focusing on this understanding, rather than a legal or political definition of the area restores the concerned laws to their purpose of consumer protection.
The attorney general has sought leave for appeal and Psagot Winery, a West Bank winery, has sought additional intervener status. If the case proceeds, perhaps the TA will yet still shed some light on whether wines made in the West Bank will be allowed to be sold in Canada labeled as “Made in Israel”.
Written by Jared Sues, a second year JD Candidate at Osgoode Hall Law School. Jared is an IP Osgoode IPilogue Editor and Innovation Clinic Coordinator