CAS 1874/11/2010 against Ahava peddlers & ANC asks Western Cape Government to take steps


International solidarity with the people of Palestine and dissenters made three small gains this week. On 30 November 2010, the Commercial Crimes Unit of the South African Police Service opened a case against SDV Pharmaceuticals and Wellness Warehouse. Open Shuhada Street’s Lungisa Jack Mndende laid charges on behalf of the organisation. (Affidavit without annexures below)

The ANC in the Western Cape Provincial Parliament read a statement into the parliamentary record and called for action against Ahava peddlers. (See below)

A complaint was also filed with the Office of the Consumer Protector by Open Shuhada Street. (See Business Day Report)

Open Shuhada Street is a part of the international campaign Stolen Beauty led by Codepink for Peace against Ahava and all products that serve Israeli Occupation, Annexation and Apartheid.

23 Khayelitsha community activists from Open Shuhada Street visited the Holocaust Centre in Cape Town on 02 December 2010 as part of the education campaign on freedom for Palestinians and against anti-semitism.

Zackie Achmat

ANC Statement in the Western Cape Legislature

MEMBER’S STATEMENT ON AHAVA PRODUCTS (30 November 2010)

Certain South African companies may violate our trade law and contribute to the violation of international law through the marketing of Ahava products. Charges were laid against Wellness Warehouse and SDV Pharmaceuticals.

The labels claim they are made in Israel, when in fact they are produced by Dead Sea Laboratories Ltd. in an illegal Israeli settlement called Mitzpe Shalem, located in the West Bank.

The UN, the US, and even the Israeli Supreme Court, does not regard the West Bank as part of Israel, and it should not claim Israeli origin.

This constitutes a “false trade description” under Section 7 of the Merchandise Marks Act of 1941 (as amended).

Ahava products are unlawfully produced and sold under false pretences. Every consumer should know the origin of a product. Do not lie. We have a constitutional right to receive accurate information to make informed choices. Products that are produced by violating human rights are deeply offensive.

We request that the Western Cape Minister of Economic Development and Tourism, and the national Minister of Trade and Industry initiate investigations into South African companies selling Ahava and to issue cease and desist orders if they are found to violate South African law.

Furthermore, we request labelling guidelines for such products stating it is “Made in an Illegal Israeli Settlement in Occupied Palestinian Territory”.

Mcebisi Skwatsha (ANC Member of Provincial Parliament)

ENDS

Lobbyists challenge ‘made in Israel’ moniker
Civil rights groups throw down the gauntlet to companies “misleading consumers”

Bekezela Phakathi

CAPE TOWN — Civil rights lobby group Open Shuhada Street yesterday lodged a complaint with the office of the consumer protector that health retailer Wellness Warehouse and pharmaceutical giant SDV Pharmaceuticals were misleading consumers by selling a falsely branded product.

The lobby group, which has also laid charges with the police, said the case would also be investigated by the Commercial Crimes Unit.

The group is a South African initiative that campaigns for full civil rights for all Israelis and Palestinians.

Shuhada Street is the main road in Hebron, which Palestinians have been prohibited from entering. The group is arguing that Wellness Warehouse and SDV Pharmaceuticals have been misleading consumers by selling Ahava skin-care products carrying false labels of origin.

According to Open Shuhada Street spokesman Daniel Kamen, Ahava products carry a label saying they are “made in Israel” when in fact they are produced by Dead Sea Laboratories in an illegal Israeli settlement in the West Bank called Mitzpe Shalem.

“According to the United Nations, the US and even the Israeli Supreme Court, the West Bank is not part of Israel. It is occupied Palestinian territory,” Mr Kamen said.

“This therefore constitutes a false trade description under South African trade law, as defined in section 7 of the Merchandise Marks Act.” Mr Kamen said Open Shuhada Street would ask that the police ensure that Wellness Warehouse and SDV Pharmaceuticals stop the marketing, sale, distribution and importation of Ahava products until their labels have been corrected to read “Made in an illegal Israeli settlement in occupied Palestinian territory”.

He said the lobby group would also request that the police investigate SDV Pharmaceuticals to check if it had paid the proper excise taxes and customs duties because Ahava products did not originate from Israel, but from the occupied Palestinian territories.

Mr Kamen said it was the view of Open Shuhada Street that Wellness Warehouse, SDV Pharmaceuticals and any other retailer, importer or business that used Ahava products for commercial purposes were doing so in violation of international law and South African law.

Wellness Warehouse CE Sean Gomes said he had contacted SDV Pharmaceuticals to inquire if “this indeed was the case”.

“We have also contacted the Department of Trade and Industry to get guidance on this matter,” Mr Gomes said yesterday.

“We want to do the correct thing but right now we need guidance from our suppliers (SDV Pharmaceuticals) and the government,” he said.

SDV Pharmaceuticals declined to comment when contacted yesterday.

phakathib@bdfm.co.za

AFFIDAVIT

I, the undersigned:

LUNGISA JACK MNDENDE

do hereby state under oath as follows :

1. I am an adult male residing in Khayelitsha and I am employed by Open Shuhada Street as its organiser. I make this complaint on my own behalf and that of Open Shuhada Street.

2. Open Shuhada Street is an organisation dedicated to solidarity with Palestinian and Israeli activists working together to peacefully end the Occupation and human rights abuses. Open Shuhada Street stands for non-violence, the mutual respect of human rights, and equality of life for all people living in Israel and Palestine.

3. Open Shuhada Street’s address is 6th Floor, Mercantile Buildings, 63 Hout Street, Cape Town 8001.

4. On 25 November, 2010 I purchased a product called “AHAVA dermud™ Intensive Nourishing Hand Cream” from the Wellness Warehouse store in the Lifestyles complex at 50 Kloof Street, Cape Town for R345.00. (1) The packaging, insert and contents of this product carry a label which states “Made by Dead Sea Laboratories Ltd. Dead Sea 86983, Israel”. (2) Displayed adjacent to the Ahava products on the shelves at Wellness Warehouse were pamphlets published by SDV Pharmaceuticals, the South African importer of Ahava. (3)

5. The label stating “Made by Dead Sea Laboratories Ltd. Dead Sea 86983, Israel” is a false trade description. It misleads consumers by stating that Ahava products are produced in Israel.

5.1. The location of the Ahava factory and visitor center is undisputed. The CEO of Dead Sea Laboratories Ltd., Y. Ellis, stated in a recent letter that “Ahava’s manufacturing facility is located at Kibbutz Mitzpe Shalem, on the North-Western shore of the Dead Sea, just 6 miles north of the ‘Green Line’, within the area usually referred to as the West Bank.” (4)

5.2. The postal code “86983” refers to Mitzpe Shalem, located in the Occupied Palestinian Territories (OPT), not in Israel. (5)

6. The settlement where Ahava is produced was established in contravention of international law. This position is shared by the United Nations, the International Court of Justice, as well as the South African Department of International Relations and Cooperation.

6.1. Article 49, paragraph 6 of the Fourth Geneva Convention states “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”(6)

6.2. Three United Nations Security Council resolutions (446, 452 and 465) declare that Israel’s settlements in the OPT are illegal according to Article 49 Fourth Geneva Convention. (7) Notably, UN Security Council resolution 465 (1980) “asks all member states not to assist Israel’s settlements program.”

6.3. In 2004, the International Court of Justice in an Advisory Opinion affirmed that the settlement of the OPT violated international law.(8)

6.4. The highest judicial authority in Israel, the Israeli Supreme Court (sitting as the High Court of Justice) has recognized the West Bank as Occupied Territory, and recognizes that the Fourth Geneva Convention applies to the Occupied Territories. For example, in the September 2005 High Court of Justice decision in the Alfei Menashe case, then Chief Justice Barak held:

The Judea and Samaria areas are held by the State of Israel in belligerent occupation. The long arm of the state in the area is the military commander. He is not the sovereign in the territory held in belligerent occupation… His power is granted him by public international law regarding belligerent occupation. The legal meaning of this view is twofold: first, Israeli law does not apply in these areas. They have not been “annexed” to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05). In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907… These regulations are a reflection of customary international law. The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949… The State of Israel has declared that it practices the humanitarian parts of this convention… We are aware that the Advisory Opinion of the International Court of Justice determined that The Fourth Geneva Convention applies in the Judea and Samaria area, and that its application is not conditional upon the willingness of the State of Israel to uphold its provisions.

(9)

6.5. On 12 April, 2010 the South African Deputy Minister of International Relations and Cooperation, Mr. Ebrahim I. Ebrahim noted that “the continued expansion of settlements in East Jerusalem and in the West Bank is increasingly making it difficult to [reach] a two-state solution.”(10)

7. The distribution, marketing and sale of these products, as currently labelled, is in breach of section 7 of the Merchandise Marks Act 17 of 1941 (MMA), which prohibits the distribution of goods bearing false trade descriptions.

8. These products carry a label that states “Made by Dead Sea Laboratories Ltd. Dead Sea. Israel.” This is a false description. Ahava products are not produced in Israel. They are produced in OPT.

9. The MMA prohibits importers, distributors, retailers and service providers from marketing products with a false trade description. It holds all persons involved in the distribution and sale of such products liable, if that person “had reason to suspect that the trade description was not genuine”(11) or if “the person did not take all reasonable steps in order to avoid the commission of the alleged offence.”(12)

10. A false trade description is defined in the MMA as:

any trade description which is false in a material respect as regards the goods to which it is applied ….;

(13)

11. A trade description is in turn defined as including

any description, statement or other indication, direct or indirect, as to … the place or country in which any goods were made or produced ….

(14)

12. Self-evidently, the description of the products as manufactured in Israel is a false trade description.

13. According to section 20 of the MMA, the penalty for a first conviction for applying a false trade description may not exceed “R5 000 for each article to which the offence relates or to imprisonment for a period not exceeding three years or to both such fine and imprisonment”. In any other case the fine climbs to R10 000 per article and a maximum five-year prison sentence or both.

14. Open Shuhada Street has alerted both Wellness Warehouse and SDV Pharmaceuticals of our complaint against the sale of Ahava products carrying false trade descriptions. Therefore it can be assured that both Wellness Warehouse and SDV Pharmaceuticals “had reason to suspect that the trade description was not genuine” -(15)

14.1. On 18 August Open Shuhada Street delivered a letter to the CEO of Wellness Warehouse, Dr. Sean Gomes, notifying him of our concerns and requesting that Wellness Warehouse stop carrying Ahava’s products. Dr. Gomes was explicitly made aware of the fact that Ahava products carry a false claim of Israeli origin, when their true origin is the illegal settlement, Mitzpe Shalem in the OPT.

14.2. On 23 August Dr. Gomes responded to our letter but declined to stop selling Ahava.

14.3. On 01 October Open Shuhada Street wrote to Dr. Gomes again, notifying him that the sale of Ahava products is illegal under South African trade law.

14.4. On 02 October Open Shuhada Street protested outside of the Cavendish branch of Wellness Warehouse and submitted a memorandum requesting that Wellness Warehouse desist in its violation of South African trade law and in its tacit support of illegal Israeli settlements.

14.5. On 5 November Open Shuhada Street contacted SDV Pharmaceuticals to notify them of their breach of South African trade law through the importation, marketing and distribution of Ahava products.

14.6. On 19 November Open Shuhada Street received a letter from Banard Katzef & Co., attorneys representing SDV Pharmaceuticals, stating that they would continue to import and distribute Ahava products despite our claim that the practice violates South African law.

15. Open Shuhada Street requests that the South African Police Service ensures that Wellness Warehouse and SDV Pharmaceuticals, stop the marketing, sale, distribution and/or importation of Ahava products until their labels have been corrected to read “Made in an illegal Israeli settlement in Occupied Palestinian Territory”.

16. Open Shuhada Street also requests that the South African Police Service investigate SDV Pharmaceuticals to check if they have paid the proper excise taxes and customs duties because Ahava products do not originate from Israel, but from the Occupied Palestinian Territories.

17. It is the view of Open Shuhada Street that Wellness Warehouse, SDV Pharmaceuticals and any other retailer, importer or business that uses Ahava products for commercial purposes are doing so in violation of international law and South African law.

SIGNED
_____________________________
LUNGISA JACK MNDENDE

I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of her knowledge both true and correct. This affidavit was signed and sworn to before me at __________ on this the 29th day of November, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.

SIGNED
________________________________
COMMISSIONER OF OATHS

1. See Annexure 1 for a certified copy of the receipt is attached.
2. See Annexure 2 for a certified copy of the packaging, insert and contents.
3. See Annexure 3 for a certified copy of SDV Pharmaceutical’s AHAVA pamphlet.
4. Yaakov Ellis’ letter is available here ; See maps of Mitzpe Shalem http://dl.dropbox.com/u/193052/MitzpeShalemMap.pdf and http://dl.dropbox.com/u/4290627/MitspeShalemPhoto.jpg
5. See address listing; also see the site for Mitzpe Shalem on the website of the Jewish Agency accessed 25 November, 2010).
6. Article 49 of the Fourth Geneva Convention is accessible at http://www.icrc.org/ihl.nsf/WebART/380-600056?OpenDocument
7. UN Security Council Resolutions 446 (1979), 452 (1979) and 465 (1980).
8. “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” ICJ 2004. (Accessed at http://www.icj-cij.org/docket/addHit.php?summaryID=41&case=131&lang=en)
9. HCJ 7957/04 Mara’abe v. The Prime Minister of Israel (2005) (accessed at http://elyon1.court.gov.il/files_eng/04/570/079/a14/04079570.a14.pdf) at para 14.
10. “Remarks by Deputy Minister Ebrahim I Ebrahim during the Opening of an International Conference organised by Afro-Middle East Centre on locating Ethnic States in a Cosmopolitan World: The Case of Israel, Colosseum Hotel, Pretoria, South Africa, 12 April 2010”. Available at http://www.dfa.gov.za/docs/speeches/2010/ebra0412.html
11. MMA Section 7(a)
12. MMA Section 7(b)
13. MMA Section 1 “false trade description”
14. MMA Section 1 “trade description”
15. See Annexure 3 for the correspondences between Open Shuhada Street, Wellness Warehouse and SDV Pharmaceuticals.

Comments are closed.

Switch to our mobile site