BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Is Your House Killing You? – featured family in Queensland – father had used a substantial amount of timber treated with Copper Chrome Arsenate (CCA) for landscaping and decking – programme stated that exposure to the chemicals in CCA-treated timber could cause serious health effects – allegedly in breach of controversial issues and accuracy standards

Findings
Standard 5 (accuracy) – broadcaster made reasonable efforts by relying on scientific experts – mostly expert opinion – not upheld

Standard 4 (controversial issues – viewpoints) – programme did not discuss a controversial issue of public importance – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Is Your House Killing You? was broadcast on TV One at 8pm on Friday 11 December 2009. Each week, experts on the programme investigated “unseen domestic dangers putting real families’ health at risk, from noxious chemicals to biohazards”. This episode featured a family living in Queensland, the Waltons, who had been struggling with flooding and termites. The father of the family had used large quantities of Copper Chrome Arsenate (CCA)-treated timber to combat these problems, as well as pesticides around the property.

[2]   The presenter introduced the programme’s resident experts as follows:

...helping families detox their homes and protect their health is our team of environmental scientists, Dr Peter Dingle and Cedric Chong. Together they’ve got the knowledge, the experience and the technology to reveal a secret world of hidden dangers. If you’ve got questions about what might be hiding in your home, then these two have the answers.

[3]   The programme contained the following comments:

• “...every time it rains a little bit [of the CCA] is going to wash out into the environment around it.” (expert)

• “CCA or copper chrome arsenate treatment is highly effective at protecting timber from climate, fungal and insect threats. But it also contains two heavy metals: arsenic and hexavalent chromium, both known to be human carcinogens. CCA-treated wood is legal to buy but should only be used under recommended guidelines.” (presenter)

• “The paradox is, while trying to protect him and his family [Mr Walton’s] probably exposing himself and his family to all these heavy metals that we know are toxic and as a result maybe some negative health outcomes there too.” (expert)

• “The regulations actually say that you’re not allowed to have high exposure areas in your decking, around your swimming pool – you’re not supposed to use CCA-treated pine for those areas. It’s toxic.” (expert)

• “The team are worried that using so much treated wood has left the Waltons’ home surrounded by carcinogens. The whole house could be contaminated with CCA placing the family health at risk.” (presenter)

• “Any evidence of leaching from the timber or CCA dust in the house could have serious implications for the family’s health.” (presenter)

• “Most at risk is Kevin. He’s come into close contact with more than 3km of treated wood. But even a single plank, 3.5 metres by 15 centimetres by 5 centimetres contains enough arsenic to kill 200 people.” (presenter)

• “[All of the family’s blood tests are] in the normal range. [Mr Walton] the bad news is that you’re at the upper end of that range indicating that you have some arsenic in your blood that shouldn’t be there. The other issue to do with that is blood tests are only an indicator of your short term exposure, and given that you’ve been working on this for the last couple of years sawing, cutting, drilling, it won’t necessarily show up in an immediate blood test so a lot more of this could have been locked away in various organs or parts of your body. We can’t say whether you’re going to get sick or not. What we want to do is try and prevent you from getting sick by helping you take action now.” (expert)

• “The research in the industry where they’re working with this timber all the time shows that there are elevated risks, they do have elevated levels of certain diseases. In that industry however they’re also working with protective equipment all the time.” (expert)

• “Constant chronic exposure to the heavy metals contained in CCA timber can result in severe illness.” (presenter)

Complaint

[4]   The New Zealand Timber Preservation Council (NZTPC) made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached broadcasting standards because it “exaggerated the health and safety effects of CCA-treated timber and used language that would lead viewers to believe that CCA-treated timber is a toxic product that should be avoided.”

[5]   The NZTPC noted that CCA-treated timber had been used in New Zealand for more than 50 years with no known adverse health effects. A 2003 report commissioned by the Environmental Risk Management Authority (ERMA) concluded that “the low level exposures that most of the general population will experience from contact with CCA-treated wood are unlikely to result in acute health effects”.

[6]   The complainant considered that it was “plainly inflammatory” to state that a single plank of wood contained enough arsenic to kill 200 people. It questioned whether there was evidence for this statement, and why, if there was such an amount of arsenic in a plank of wood which readily transferred from the wood to people, there had not been a history of deaths as a result of handling CCA-treated timber.

[7]   Secondly, the NZTPC objected to the programme highlighting the fact that, although the results of the family’s blood tests were within the normal range, the father’s was “at the upper level of the normal range”. It argued that the reason for his result could be due to other factors unrelated to CCA-treated wood.

[8]   Third, the complainant maintained that the statement that the more it rains, the more the arsenic leaches out, was unsupported by science. It said that CCA was a “fixed” preservative, meaning it was designed to be retained in the wood so that protection from decay and insect attack was continuous for at least 50 years.

[9]   Finally, the NZTPC argued that the statement in the programme that the family lived in an environment surrounded by carcinogens was “misleading, mischievous and inflammatory”.

[10]   The complainant concluded that the programme was unbalanced and could have created unnecessary concerns for consumers, especially those who had decks or landscaping built from CCA-treated wood. It requested that TVNZ broadcast a statement at the same time as the original programme to clarify the points raised in the complaint in order to allay any unnecessary concerns held by viewers.

Standards

[11]   Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Broadcaster's Response to the Complainant

[12]   TVNZ assessed the complaint under Standard 4. It said it must first determine whether the programme discussed a controversial issue of public importance to which the standard applied. TVNZ acknowledged that the issue of CCA-treated wood leaching heavy metals into the environment could be considered of public importance. However, it noted a report by the Australian Pesticides and Veterinary Medicines Authority (APVMA)¹ which stated that, although the components of CCA timber were designed to be fixed, environmental contamination could occur during the treatment process, through leaching of chemicals over time, and from disposal and burning of the timber.

[13]   TVNZ therefore concluded that “the fact that leaching may occur (as discussed in the programme)” was not controversial. It declined to uphold the complaint under Standard 4.

[14]   TVNZ then addressed the specific statements raised by the complainant.

Statement that a plank of CCA-treated wood contains enough arsenic to kill 200 people

[15]   TVNZ argued that, when the components of CCA treatment were “fixed” into the wood, “they obviously do not have a health effect on people handling and working with the timber (if used in the correct manner). However a quantity of chemical is ‘fixed’ in the timber – this is what the programme was referring to.”

Results of Mr Walton’s blood tests

[16]   TVNZ said that the programme was making the point that although Mr Walton was at the high end of normal, as he had been exposed over a long period there may have been contaminants in his organs due to his failure to use protective equipment. It also noted that it was made clear in the programme that Mr Walton should not have used CCA-treated timber for the decking and the swimming pool area in accordance with Australian guidelines, and that he should have used safety gear.

[17]   TVNZ maintained that “the programme did not state that treated timber was dangerous in itself. The programme focused on the fact that people working with the timber needed to take proper safety precautions.” Further, Mr Walton was not advised to remove the timber but was advised to cover it with a sealant and to stop spraying pesticides.

Statement that the chemicals leached out when it rained

[18]   TVNZ noted that the APVMA report stated that:

Although these components (arsenic, chromium) are reported to be fixed during the treatment process, some release does occur when the treated timber is in service. Therefore the public can potentially be exposed to dislodgeable residues from contact with treated timber, either by absorption through the skin or by unintended ingestion through the mouth.

Statement that the family lived in an environment surrounded by carcinogens

[19]   TVNZ said that the Waltons regularly sprayed pesticides around their property, and Mr Walton brought dust from the CCA-treated wood into the house. “This dust is contaminated with arsenic and chromium,” TVNZ said, and “arsenic and chromium are carcinogens.” It therefore concluded that “it is fair to say that the family live in an environment surrounded by carcinogens.”

Referral to the Authority

[20]   Dissatisfied with the broadcaster’s response, the NZTPC referred three aspects of its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. It considered that TVNZ had still not provided any evidence for the statement that a plank of wood contained enough arsenic to kill 200 people. The NZTPC also argued that TVNZ had not responded to its observation that all of the family’s blood tests produced results that were in the normal range, including the father’s, even though he was the most exposed.

[21]   Finally, the complainant noted that TVNZ had referred extensively to the decisions of the APVMA, and had failed to refer to ERMA’s review of CCA-treated wood, which concluded that there was insufficient evidence to support replacement of existing structures made from CCA timber, or for banning the use of CCA-treated timber.

Broadcaster’s Response to the Authority

[22]   TVNZ stated that, as the programme was Australian, the programme makers highlighted Australian guidelines for CCA-treated timber, which did not differ greatly from the ERMA guidelines. However, the Australian guidelines were the most up to date.

[23]   The broadcaster considered that the complainant had not raised the issue of removing the CCA-treated timber in the original complaint. It reiterated that in the programme Mr Walton was not advised to remove the CCA timber. TVNZ noted that ERMA also recommended staining the wood to “reduce the migration of wood preservative chemicals”. It maintained that “the programme stated that CCA-treated wood is useful – but that the fine particulate matter should be avoided.”

Further Submissions from the Broadcaster

[24]   The Authority invited further submissions from the broadcaster because it considered that the complainant had implicitly raised Standard 5 (accuracy) in its original complaint and TVNZ’s decision focused only on Standard 4.

[25]   TVNZ said that it stood by the arguments put forth in its decision in relation to the points raised by the complainant. It attached a study² which it considered demonstrated that CCA-treated timber could contain approximately four kilograms of arsenic per cubic metre. TVNZ therefore concluded that it was not inflammatory to state that a single plank of wood contained “enough arsenic to kill 200 people”, though “obviously this chemical is fixed in the wood but it is there.”

Authority's Determination

[26]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 5 (accuracy)

[27]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[28]   We consider that Is Your House Killing You? was a factual programme to which Standard 5 applied. We consider that the programme presented itself, and would reasonably have been understood by the audience, to be an authoritative source of information.³

[29]   We now turn to the specific points referred to us by the complainant. First, the NZTPC argued that it was inflammatory to state that a single plank of wood “contains enough arsenic to kill 200 people”. In our opinion, viewers would have understood that this statement was referring to the volume of the chemical that was fixed into the wood, rather than claiming that a single plank of wood could actually kill 200 people. Having viewed the information provided by TVNZ, we are satisfied that the broadcaster made reasonable efforts to ensure that the programme had sufficient basis for the statement.

[30]   Second, the NZTPC objected to the scientist’s comments about Mr Walton’s blood tests, given that his results were still within the normal range. The comments made by Dr Peter Dingle in the programme were as follows:

[All of the family’s blood tests are] in the normal range. [Mr Walton] the bad news is that you’re at the upper end of that range indicating that you have some arsenic in your blood that shouldn’t be there. The other issue to do with that is blood tests are only an indicator of your short term exposure, and given that you’ve been working on this for the last couple of years sawing, cutting, drilling, it won’t necessarily show up in an immediate blood test so a lot more of this could have been locked away in various organs or parts of your body. We can’t say whether you’re going to get sick or not. What we want to do is try and prevent you from getting sick by helping you take action now.

[31]   Opinion and comment are exempt from the accuracy standard under guideline 5a to Standard 5. In our view, the scientist was offering his opinion that, even though his blood tests were normal, Mr Walton was at a greater risk of illness because he had not been taking any safety precautions when dealing with the timber. The expert’s focus was on advising Mr Walton about safety measures that could be taken to prevent further unnecessary exposure to the chemicals. Given that the remarks were clearly Dr Dingle’s genuine opinion and analysis of the blood results, we find that they were not statements of fact to which the accuracy standard applies.

[32]   It is unclear whether the complainant also wished to refer the other two points raised in its complaint, namely, the statements in the programme that the chemicals in the wood leached out when it rained, and that the family was living in an environment surrounded by carcinogens. For the record, we have considered these two elements of the complaint.

[33]   The statement made by the expert in the programme was, “every time it rains a little bit [of the CCA] is going to wash out into the environment around it.” We consider that the scientist was giving his expert opinion, and that the broadcaster made reasonable efforts to ensure that the programme was accurate by relying on an expert in the relevant field. The broadcaster also provided information which supported the suggestion that, although the chemicals are fixed in the wood, some release can occur when the timber is in service (see paragraph [17]). For these reasons we do not uphold this aspect of the complaint.

[34]   The statement made in the programme by the presenter about the family’s home was, “The team are worried that using so much treated wood has left the Waltons’ home surrounded by carcinogens.” Earlier in the programme, the presenter stated that the two main elements of CCA-treated wood, hexavalent chromium and arsenic, are recognised as human carcinogens, which the complainant has not disputed. We therefore consider that, while it may have been hyperbolic, there was a reasonable basis for the statement given that those elements are carcinogens present in the timber, and the Waltons had used a significant volume of the timber around their home.

[35]   Overall, we are of the view that the programme explored a legitimate issue and aimed to provide useful information about the benefits and risks of using CCA-treated timber. The programme was entitled to rely on the veracity of the information and views of the two scientists who were employed as experts in the relevant field.

[36]   In these circumstances, we decline to uphold any aspect of the Standard 5 complaint.

Standard 4 (controversial issues – viewpoints)

[37]   Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[38]   In our view, while the issue of whether CCA-treated timber could cause serious health effects might be considered a controversial issue, the programme did not purport to be a balanced discussion of that issue, or to present perspectives for and against that theory. The purpose of the programme was to examine whether the Waltons were using materials that could impact on their health. It was clearly designed to entertain viewers and provide information at a very general level.

[39]   Accordingly, we find that the programme did not discuss a controversial issue of public importance to which Standard 4 applied.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
1 June 2010

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.           New Zealand Timber Preservation Council Inc’s formal complaint – 18 January 2010

2.          TVNZ’s response to the complaint – 18 February 2010

3.          NZTPC’s referral to the Authority – 25 February 2010

4.          TVNZ’s response to the Authority – 13 April 2010

5.          TVNZ’s response to Authority’s request for further submissions – 30 April 2010

¹The Reconsideration of Registrations of Arsenic Timber Treatment Products (CCA and Arsenic Trioxides) and their Associated Labels Report of Review Findings and Regulatory Outcomes Summary Report, March 2005

²State University System of Florida, Arsenic and Chromium Speciation of Leachates from CCA-treated Wood, September 27/2004

³See ACC and TVNZ, Decision No. 2006-126