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Manufacturing Indaba 2018

Saul Shoot - 'As a matter of fact...'

With reference to 'Is the ASA flouting the CPA?' published on Bizcommunity on 22 May,'Everyone is entitled to their own opinions, but they are not entitled to their own facts'[1]. The facts are as follows:
1. The ASA consented to a Court Order in the South Gauteng High Court pursuant to admissions the ASA made in its Affidavits that[2]:

1.1 "The ASA does not assert jurisdiction over advertisers which are not its members";

1.2 "The ASA's enforcement of the Code therefore binds only its members and only because those members have agreed to be bound ... the ASA exercises a purely contractual power, which binds no party other than members of the ASA" ;

1.3 "The ASA's rulings do not have the force of law. They bind only members of the ASA. The ASA does not assert jurisdiction over non-members";

1.4 "Non-members of the ASA ... are legally entitled to ignore the rulings and procedures of the ASA".

2. It bears emphasis that these are the ASA's own words.

3. Kevin Charleston ("Charleston") was the losing party in the ASA appeal before the then President of the ASA Mervyn King.

4. Charleston's complaint which was dismissed on appeal was premised on the ASA's "False, misleading or deceptive representations" to the effect that it was authorised on behalf of the Medicines Control Council ("MCC") to administer and regulate medicine advertising and advice in respect of diseases on the MCC's behalf when this claim was to the knowledge of the ASA and Charleston untrue. Charleston initially pretended not to be associated with or supported by other activists including Section 27. Criminal charges were lodged against the ASA as a result of the ASA (under the Presidency of Mervyn King) having falsely claimed to be regulating medicine advertising "on behalf of the MCC" purportedly in terms of the ASA's then medicine code which the ASA falsely claimed had been "issued in terms of Section 18C of the Medicines Act 101 of 1965"[3] (see some of the ASA's false and deceptive claims in the attachments hereto) at a time when Mervyn King was "the Supreme Officer of the ASA"[4].

click to enlarge
5. The day following Mr Charleston's groundless complaint (about Omega 3 Fish Oils) being finally dismissed by the ASA, the ASA resolved to change its Code but kept this secret from the public for quite some time.

6. This secretive conduct by the ASA gave rise to the "deep concern" expressed by Gail Schimmel ("Schimmel") who was the former Head of Legal and Regulatory Affairs at the ASA. Schimmel's article in which she expressed her deep concern about "symptoms of an illness" within the ASA was published on Bizcommunity - Appendicitis at the ASA?.

7. Shortly after Mr Charleston's complaint was finally dismissed by the ASA and after "secretly" amending its Code, Mervyn King resigned as President of the ASA. His resignation also followed the criminal charges having been lodged against the ASA in relation to the false, misleading and deceptive representations made by the ASA under his presidency.

8. Charleston's purported legal opinion in regard to the CPA reveals his ignorance of the facts. As appears above, in the ASA's own words, the ASA asserts that its Code is a contract entered into with its members and it is accordingly rendering a service of regulation to its members. It also purports to offer "appeal" services to non-members against payment of so-called "appeal fees".

9. The ASA has pursuant to the aforesaid admissions (including the admissions that The ASA's rulings do not have the force of law and Non-members of the ASA ... are legally entitled to ignore the rulings and procedures of the ASA) discontinued pretending to have jurisdiction over any of my clients.

10. The "opinions" expressed inter alia by Charleston on this and other websites do not change the facts.

Download Appendices


[1] Daniel Patrick Moynihan.
[2] South Gauteng High Court, Johannesburg - Case No: 2012/18405.
[3] Appendix A.
[4] Article 11 of the ASA's Articles.

About the author

Saul Aryeh Shoot is an attorney practicing inter alia in media law at Fluxmans Inc Attorneys.
Kevin Charleston
Saul Shoot repeats the same assertions perhaps assuming that this will make them somehow truer? His points are still irrelevant. The newspaper is a member of the ASA. The advertiser may not be – but to get her advert published in the newspaper – she’ll have to obey the CAP or be requested to change the advert. She may choose to ignore the ASA – at which point the ASA will ask the newspaper not to publish any more of her adverts. If she wants to argue with the ASA about her advert – it will cost her to do so. Shoot claims falsely that “Charleston initially pretended not to be associated with or supported by other activists including Section 27”. I have never pretended anything of the sort and I expect Shoot to apologise for such a falsehood. In October 2010 I complained of a Solal advert for Krill Oil. Solal’s response to this – in December 2010 was that my complaint was “stylometrically similar” to complaints by Marcus Low of the TAC and Harris Steinman – and that I was not acting bona fide, that the complaint was therefore vexatious and should be dismissed. I had never heard of these gentlemen at the time. That particular gambit was only revealed to me in the February ruling of the ASA on that matter?Ruling=5461. Intrigued by the accusation that I wrote like someone else – I sought out these other gentlemen. I made contact with the webmasters who had published an article by Mr Low; and they agreed to publish an article I wrote on homeopathy. I found the website run by Harris Steinman and introduced myself. Solal, through Shoot, appealed the matter in July 2011 – and that appeal ran along 3 lines: that Appendix F of the CAP was invalid, that the advert never ran in the newspaper is I claimed it did, and that it was a malicious complaint in bad faith and without merit. The latter of the two arguments are accurately described as groundless – the original complaint was perfectly valid. The section of the appeal claiming that the advert never appeared as I claimed it did ran to over 4 pages of absolute rubbish – easily dealt with by providing a copy of the newspaper. Mr. Shoot is not one to examine the facts too closely. Shoot continued with the bizarre claim – absolutely without evidence that I was employed by the TAC, and even dragged in a claim from the Matthias Raath trial to try and justify claiming that the TAC was a commercial interest. Since February 2011 I have had several articles published on Quackdown, Groundup and Camcheck. I have never denied communicating with other health activists. I have never acted on behalf-of or under instruction-from anyone else in the complaints I have laid, nor the articles that I have written. Shoot persists with this lie to suit his own ends. It isn’t convenient to think that many others believe his client’s advertising fails to comply – it suits him to claim it to be a concerted action by a cabal with a vexatious motive. Section 27 offers legal advice to many activists – and it is only in response to Solal’s ridiculous letter of demand (in November 2011) and subsequent defamation suit (in November 2012) that they are supporting me at all. It is bizarre to claim that I must work for the TAC just because Section 27 is supporting me. Shoot claims my original complaint was ‘groundless’. That’s simply unbelievable – because no complaint that passes an ASA check before being referred to the advertiser, and a Directorate ruling, and an appeal before the ACT, and then a final appeal before the president – could conceivably be called groundless. A groundless complaint is not even considered. The complaint was made in good faith on grounds acceptable iro the CAP at that time. That the particular ruling in this matter may have resulted in the ASA changing the CAP (which it does on an annual basis anyway) and thereby removing Appendix F is completely reasonable. If the law is bad, it should be removed. Bad law should not be able to sustain a reasoned attack. I fully agree that the way the removal was communicated; and its other administrative faults – does not serve the ASA, its member – or the consumers. But also I see the removal of Appendix F as an action of an organisation operating in good faith to serve the industry as intended. Had it remained it would have been unsustainable. Shoot can’t seem to make up his mind – are his clients consumers of the ASA’s services or not? He seems to want it both ways – to claim they are not, and to also complain that the letters they receive are because the ASA is marketing in bad faith. I’ll have to grant him one thing though – I have gained a chuckle from this. I shall no longer refer to it as “Solal’s Ridiculous Letter of Demand”. It shall henceforth be known as “Saul Shoot’s Marketing Material”. Saul Shoot's appeal in the Appendix F matter:
Posted on 2 Jun 2014 20:41
Mr Charleston you lost the appeal based on what you you knew was the ASA's false claim to be regulating medicine advertising on behalf of the Medicine Control Council in terms of the Medicines Act. The next day the ASA decided it could no longer continue with its untrue claim but kept this secret. Smells of a cover up to me...ex judge Mervyn King then resigns; sounds familar see what Noseweek magazine said about the ex judge in their article entitled KING PONG at: ?current_article=119 Mr Charleston you are a bad loser and obviously endorse the ASA's dishonest and smelly cover up.
Posted on 4 Jun 2014 14:16
Kevin Charleston
Is that you Saul Shoot? Hiding behind a pseudonym - AnonASA?Because that's precisely the same unproven and false allegation you made in the written appeal on the Appendix F matter (see link on my previous comment). Funny that you never actually made that claim before the FAC? Because it isn't true and there is no way you can actually support it. I have no problem that the Appendix F appeal by Solal succeeded. As I indicate in my comment - if it's not good it didn't deserve to stand. But if we are going to resort to Noseweek articles to support ourselves - here's one for you: Here's a PDF Copy %20160%20February%202013.pdf
Posted on 4 Jun 2014 19:25
I have just re-read your comments in light of Mr Shoot’s latest article on Bizcommunity, Medicine Advertising and the ASA at The links you have posted at and demonstrate that you knew that the ASA’s claim to be regulating medicine advertising on behalf of the Medicines Control Council in terms of the Medicines Act was false. In fact, the last document attached to your link and in your possession is a letter from the Department of Health which states: “The Medicines Control Council (MCC) does not have a formal relationship with ASA. The statement that ASA is managing the Marketing Code on behalf of the MCC is therefore incorrect”You were aware of it. It was before the final appeal. You were also sent a letter of demand. Your attempts to wriggle out of losing your complaint about Omega Oil premised on what you knew was dishonest conduct by the ASA is unconvincing. You have in your own links proved your own dishonesty.
Posted on 15 Jul 2014 12:31
The above was a response to Mr Charleston.
Posted on 15 Jul 2014 13:38
Kevin Charleston
Is that you again Shoot? Still cowering behind a pseudonym? In what foetid little part of your mind does the presence of a document attached to a letter from you to the ASA "demonstrate" that "I knew" the MCC does not have a formal relationship with the ASA? Just because you write rubbish (adequately demonstrated by your submission to the ASA in response to my complaint) doesn't mean that I agree with it. And I still don't. Perhaps if you manage to actually convince a judge I might concede you have a point. I do not believe he conduct of the ASA was dishonest - that's your opinion. Prove it - or stop making false claims about what I know or knew.
Posted on 15 Jul 2014 16:59