BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The case of a woman who became seriously ill after being prescribed a thyroid dietary

supplement by a nurse was examined in an item broadcast on 60 Minutes on 18

September 1994. During the item, her case was used to question the adequacy of the

controls which apply to dietary supplements.

The manager of a health food company and president of the National Nutritional

Foods Association, Mr Mabey, complained to Television New Zealand Ltd, the

broadcaster, that the item was inaccurate and unbalanced and unfair to some of the

people interviewed. He listed 13 specific points of complaint.

Maintaining that the story was a "cautionary tale" about the experiences of one

woman with one dietary supplement, TVNZ said that the item was accurate and that

all appropriate parties had been approached for comment. It declined to uphold the

complaint. Dissatisfied with TVNZ's decision, Mr Mabey referred his complaint to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upheld the aspect of the complaint that,

overall, the item had not dealt with the health food industry in a balanced way. It

declined to uphold any other aspects of the complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaint without a formal hearing.

A 60 Minutes item interviewed "Debbie" who had become severely ill following a

course of a thyroid dietary supplement prescribed by a nurse. A medical practitioner

who had arranged for the pills to be analysed expressed the opinion that the excessive

dose could have led to a fatal heart attack. The pills in question were made by

Megavitamin Laboratories New Zealand Ltd and the item included scenes from the

company's factory in Christchurch. Dr Stewart of Megavitamins was seen showing

the 60 Minutes team around and answering some questions about the company's

operations. He was also shown making some terse responses to some questions

during an interview with the 60 Minutes reporter and, the item reported, his wife

terminated the interview when some questions were asked about "Debbie".

The Complaints

Two complaints about the programme were referred to the Authority. The first was

made by Mr Gary Mabey, manager of Health and Herbs (a health food company) and

president of the National Nutritional Foods Association (NNFA). The second was

from Megavitamins Laboratories New Zealand Ltd and its owner, Dr Warren Stewart.

Although some of the issues raised by the complainants were similar, Mr Mabey's

complaint focussed principally on the item's impact on the health food industry while

that from Dr Stewart and his company was primarily concerned with the way they

were dealt with by TVNZ before and during the interview. To ensure that the

different issues were addressed comprehensively, the Authority decided to issue two

distinct decisions – Nos: 63/95 and 64-65/95.

In his complaint, Mr Mabey said he had been advised before the broadcast that the

programme would be "well balanced and researched" but, he continued, both

requirements had been missing in the item which was broadcast.

He listed 13 specific points of complaint:

1)  While dietary supplements were not subject to the same stringent controls as

medicines, they were not exempt from Ministry of Health controls as the

programme implied.

2)  It was incorrect to describe the pills prescribed as a "cure" as such an

appellation for dietary supplements was legally prohibited.

3)  In its questioning of Dr Stewart, the item failed to acknowledge

practitioner/patient confidentiality and, secondly, no evidence was presented

from the Poisons Control Centre to support the allegation that "Debbie" had

been poisoned by the prescribed dietary supplement.

4)  While the item referred to "Debbie" as a recovering alcoholic, it did not mention

either what other medicine she might have been taking or that she might have

incurred some degree of permanent liver damage.

5)  While a doctor (Dr Cooper, a friend of "Debbie's") said she might have died,

there was no evidence that the supplement was the cause of her ill-health.

6)  Dr Cooper had expressed concern that Nurse Kay (who prescribed the dietary

supplement) was still operating her practice but the item did not report that she

was the subject of a Nursing Council hearing.

7)  "Debbie's" description of Nurse Kay as a "charlatan" was possibly libellous.

8)  The questions to Dr Stewart about his business dealings with Nurse Kay failed

to acknowledge that it was a company/customer matter.

9)  Recent research failed to confirm the item's allegation that the herbal product

Chaparral was linked to hepatitis and liver cancer.

10)  The link said to exist between L-Tryptophan and blood problems failed to

acknowledge that it referred to one contaminated batch only.

11)  Dr Jim Mann, described during the item as New Zealand's "leading nutrition

expert" was unknown to the dietary supplement industry and as a nutritionist,

was not qualified to comment on the manufacture of dietary supplements or

their legislative control.

12)  Contrary to the reporter's comments, any revision of the Medicines Act or the

Regulations was unlikely to increase the controls which applied to dietary

supplements.

13)  Mr Mabey wrote:

The final statement "she for one will never use Dietary Supplements

again" indicates, by association, that there are problems with all Dietary

Supplements and manufacturers and does considerable harm to the whole

health food industry.

TVNZ's Response to the Complaint

TVNZ assessed the complaints under standards G1, G4 and G6 of the Television

Code of Broadcasting Practice. They require broadcasters:

            G1        To be truthful and accurate on points of fact.

            G4        To deal justly and fairly with any person taking part or referred to in any

                        programme.

            G6        To show balance, impartiality and fairness in dealing with political

                        matters, current affairs and all questions of a controversial nature.

It pointed out that the item was a "cautionary tale" about one woman and her

experience with one dietary supplement and it had not been necessary to include the

view of the NNFA. It then dealt with the specific points raised by Mr Mabey.

1)  As dietary supplements were not defined in the Medicines Act as medicines,

they escaped the stringent controls which applied to "medicines".

2)  That the pills which were prescribed were meant to "cure" was an accurate

summary of what "Debbie" said she had been told.

3)  Dr Stewart had said that questions about why the pills had been prescribed

should be put to Nurse Kay and he refused to acknowledge that he was

responsible for the recipe of pills. Dr Cooper had diagnosed thyroid toxicity

and "Debbie's" suffering had been alleviated when she stopped taking the pills.

Two analyses had shown that the pills contained a high concentration of thyroid

extract.

4)  TVNZ questioned whether the reference to "Debbie" as a recovering alcoholic

involved a breach of patient confidentiality on Mr Mabey's part and reported

that it had been told she was "not on a cocktail of prescription drugs".

5)  Dr Cooper's diagnosis was based on his medical expertise and was supported

by independent medical and scientific sources.

6)  At the end of the item, the reporter had referred to the Nursing Council's

investigation of Nurse Kay.

7)  TVNZ regarded "Debbie's" "charlatan" remark as fair comment.

8)  TVNZ described the questions to Dr Stewart about his dealings with Nurse Kay

as fair and noted in addition that at that stage Dr Stewart's wife had terminated

the interview.

9) and 10)  TVNZ observed that the comments about Chaparral and L-Tryptophan were

confirmed by the Ministry of Health.

11)  TVNZ referred to Dr Mann's speciality and expertise which justified the item's

description of him.

12)  The reference to tighter controls in the future was based on the Health

Ministry's comments.

13)  The item reported "Debbie's" determination not to use dietary supplements

again.

Further Correspondence

When Mr Mabey referred his complaint to the Authority, he repeated the specific

aspects of his complaint and as the item - not his letter - referred to "Debbie" as a

recovering alcoholic, he questioned the competence of TVNZ's Complaints

Committee. He argued that it was unfair to use a partial case history to discredit an

entire industry and was adamant in his opinion that the NNFA should have been

consulted as the trade association which represented the health food industry.

In its report to the Authority, TVNZ said that the item dealt with one woman who

had become seriously ill after taking a prescribed dietary supplement and had then

asked whether such supplements should not be subject to the same stringent

regulations which applied to orthodox medicines. Specifically, TVNZ acknowledged

that the item reported that "Debbie" was a recovering alcoholic and insisted that the

observation about patient confidentiality related to the aspect of the complaint that

suggested that "Debbie" was using a number of prescribed drugs.

TVNZ maintained that the story was told clearly and accurately and that it was

explicitly presented as a cautionary tale.

In his response to TVNZ, Mr Mabey referred to some other specific matters which

he believed justified questioning the competence of TVNZ's Complaints Committee.

He concluded with the following comments.

The programme has had a devastating financial effect on both Megavitamin

Laboratories and Ruth Kay. Neither parties have been found guilty of any

wrong doing at this time and have the support of the NNFA and various other

groups and associations.

            ...

There are many areas of concern about this programme and all I ask is that you

view the programme very carefully and hopefully make some recommendations

to prevent a similar occurrence.

In response, TVNZ wrote to the Authority:

It was perfectly right and proper to pursue this story. It revealed an

unsatisfactory situation which the public at large had a right to know. Any

decision which suggests otherwise must raise serious questions about the

freedom of the press in this country – a freedom many New Zealanders accept

unquestionably [sic], but which must be jealously guarded at all times if

democracy is to be meaningful.

The 60 Minutes team acted throughout with care and integrity, and we invite the

Authority to consider the views of the many medical experts in this story who

have offered their support for "Debbie" because of their obvious concerns for

the safety of the public.

Because of the differing views about Chaparral and L-Tryptophan, the Authority

sought opinions from the Ministry of Health, and specifically Dr Boyd who was

referred to by both the complainant and broadcaster.

Dr Boyd reported that TVNZ had researched the matter fully before seeking the

Health Ministry's advice. As for Chaparral, Dr Boyd said that it had been associated

with liver damage. It was not used in New Zealand in medicines but had been sold as

a food in dietary supplements products and, he added:

Because the risks appeared to outweigh the benefits of having this product as a

food, the Ministry, through its Foods Administration Section asked

manufacturers to remove chaparral from food products.

Secondly, Dr Boyd explained that in view of cases of illness in patients overseas who

had taken high doses of L-Tryptophan, the Ministry said that it recommended that it

remain available for low daily intakes as a dietary supplement and as a medicine. The

recent research from WHO had said that L-Tryptophan was not a proven link to

eosinophilia-myalgia (EMS).

The Authority's Findings

Part of the correspondence between Mr Mabey and TVNZ involved allegations about

the competence of TVNZ's Complaints Committee. The Authority noted that Mr

Mabey based his allegation on the seemingly inaccurate comments on some specific

matters by TVNZ about, for example, the source of Mr Mabey's knowledge of

"Debbie's" alcoholic history.

TVNZ maintained that the allegation of incompetence was based on Mr Mabey's

misinterpretation of its letter. The Authority, while it agreed that Mr Mabey's

interpretations were correct, nevertheless accepted that TVNZ's intention was

wrongly expressed and that, as the issue has been resolved, nothing in the decision

was influenced by Mr Mabey's reading of TVNZ's letters on the points in dispute.

The Specific Points

1)  The Authority did not accept that the comment in the item about the lack of the

stringent controls applicable to dietary supplements – like those which applied

to medicines – was inaccurate. However, because it could be taken that the item

implied that there were no controls, rather than the less stringent controls which

in fact exist, the Authority believed that this aspect should be considered, as a

minor point, when the item's balance overall was determined.

2)  The Authority accepted TVNZ's argument on the point that the use of the term

"cure" summarised "Debbie's" belief in the product which she had been

prescribed.

3)  As the patient/practitioner relationship involved Nurse Kay and "Debbie", in

the Authority's opinion questions to Dr Stewart about this relationship could

not be considered to threaten the standards. While his answers might have

breached confidentiality, his proper response was to decline to answer. He

followed that approach and his answers, therefore, did not contravene

broadcasting standards.           

      The Authority also decided that while "toxic" and "toxicity" might have been

better words to use rather than "poison" and "poisoning", the analysis of the

pills which was undertaken was sufficient for the item to reach the conclusions

that were advanced about the impact on "Debbie" of the thyroid extract.

4)  The item stated that the thyroid extract was the cause of "Debbie's" illness. It

was also noted that "Debbie" was a recovering alcoholic. To the aspect of the

complaint which argued that the item breached the standards by giving

insufficient information about "Debbie's" medical history, the Authority decided

 that enough information had been given to justify the points which the item was

trying to make. Although Nurse Kay, the prescriber, was seen to decline to take

part, a general practitioner and other experts expressed substantial concern about

"Debbie's" use of the supplements. Therefore, given the item's theme, the

Authority was of the view that further details of "Debbie's" medical history were

not pertinent as far as providing balance was concerned.

5)  Dr Cooper's comment was presented, justifiably in the Authority's view, as his

opinion on a medical matter and therefore was not in breach.

6)  Dr Cooper's comment about Nurse Kay's continuing practice was also

appropriate given the reference at the end of the item by the reporter to the

Nursing Council's investigation.

7)  The "charlatan" comment was clearly "Debbie's" opinion to which Nurse Kay

was given the opportunity to respond. It did not therefore contravene the

standards.

8)  To the extent that the matter was raised in this complaint, the Authority

considered that TVNZ was completely justified in its questions about the

business relationship between Nurse Kay and Dr Stewart of Megavitamins.

Because of the centrality of this issue to the complaint from Dr Stewart and

Megavitamins, this issue is explored further in the decision on their complaint.

9) and 10)  Because it was unclear as to whether the item's comments about

Chaparral andL-Tryptophan had been sourced appropriately, the Authority sought

the Health Ministry's views. As was recorded in the section above, these inquiries

disclosed that the views expressed were confirmed by the Ministry and,

therefore, did not breach the requirement for accuracy.

11)  While it would have preferred Dr Mann to be described as "a" leading expert

rather than "the" leading expert, the Authority considered that Dr Mann's

credentials justified the item's use of his views not only about nutrition and

hormones, but also about the manufacture of dietary supplements.

12)  The Authority did not believe that the comment about the outcome of the

review was so contentious that it was necessary to be sourced.

13)  The issues raised under this heading involve the item overall and are addressed in

the following section.

The Programme Overall

Despite the inadequacies noted above under point (1) which related to standard G6,

the Authority was of the opinion that its review of the specifics in themselves did not

justify the conclusion that the item was unfair or unbalanced. Moreover, taking into

account the item's theme, it did not accept that the item overall was inaccurate and,

consequently, decided that it had not transgressed standard G1.

Furthermore, as Nurse Kay was seen to be given an opportunity to answer the

criticisms made of her, the Authority did not consider it had been unfair to her in

contravention of standard G4.

However, before the Authority determined whether the item was unfair to Dr Stewart

and Megavitamins on the specific matters raised by Mr Mabey or was, in view of its

tenor, unbalanced overall, it considered the theme of the item.

The Authority began by agreeing with TVNZ that it was a "cautionary tale" but it did

not accept TVNZ's suggestion that, therefore, it was almost totally focussed on

"Debbie" and Nurse Kay and the dietary supplement prescribed to her. The

programme was, in the Authority's view, a matter of major importance when it

reported not only that "Debbie" could have died because she was the unwitting victim

of a charlatan nurse, but also that there was a lack of controls relating to the

manufacture of dietary supplements.

Megavitamin Laboratories was shown to make dietary supplements to the

practitioners' recipes but the degree of the internal and external controls was left

unclear – except that the former had yet to be developed fully and the latter were not

stringent. Dr Stewart was asked some questions about his responsibilities and the

programme suggested that at least some responsibility lay with the manufacturer

although the principal responsibility rested with the prescriber. Further, there were

some hints that Dr Stewart's business was disreputable as not only was it outside

orthodox medicine but also that Dr Stewart himself was possibly a maverick within

the health food industry.   When these concerns were raised during the item with Dr

Stewart, he made the points that the company was legally allowed to manufacture

dietary supplements and should it step outside the legal requirements, the Ministry of

Health was prepared to take action. 60 Minutes reported that action had indeed been

taken against the company.

As these legal compliance matters were addressed in full and the issues were raised

with Dr Stewart, the Authority decided that, within the confines of Mr Mabey's

complaint, neither Megavitamins nor Dr Stewart had been treated unfairly in

contravention of standard G4.

The final matter considered by the Authority was whether or not the item overall was

unbalanced. The Authority noted that the item focussed on "Debbie" and her

relationship with Nurse Kay. Nurse Kay was portrayed as the person who bore

considerable responsibility for "Debbie's" severe ill-health. Nurse Kay declined to

participate – either in person or through her solicitor. The programme then examined

Megavitamins and revealed its disputes with the Ministry of Health and with other

authorities. Having dealt with the specific company, the programme then questioned

whether the controls on the health food industry generally were sufficient. It was this

aspect of the item which the Authority concluded was not adequately balanced.

The Authority accepted that the story which began by featuring "Debbie's" plight

might well not have set out to examine the health food industry. Indeed, it was made

clear that Megavitamins might not be totally representative of the entire industry.

However, it was shown that most of its business operated within the boundaries

applicable to the health food industry. Furthermore, in questioning what the industry

inflicted on "Debbie", admittedly through an independent prescriber, issues of the

industry's moral – if not legal – responsibility were aired. Having raised such broad

questions, the Authority was of the view that the industry should have been given an

opportunity to respond.

The Authority does not believe that the NNFA should necessarily have been

approached to advance the industry's perspective. However, as the industry's

responsibility had been raised directly, an industry response in some form was

required in the interests of balance, impartiality and fairness. As TVNZ explained, the

item pointed out that the buyer of dietary supplements had to be wary. The item also

noted some of the consequences which might arise should the buyer not be wary.

However, to ensure the cautionary tale was told in full, the Authority believed that

the buyer should also have been told the extent to which the industry was already

controlled in the buyer's interests.

For the reasons above, the Authority upholds the complaint from Gary Mabey

that the 60 Minutes item on dietary supplements broadcast by Television New

Zealand Ltd on 18 September 1994 breached standard G6 of the Television

Code of Broadcasting Practice in that an industry representative was not given

a chance to answer the criticisms made in the item about the industry.

The Authority declines to uphold any other aspect of Mr Mabey's complaint.

Having upheld a complaint, the Authority may make an order under s.13(1) of the

Act. Although incorporating aspects of one of the 12 specific points raised by Mr

Mabey, on the basis that the matter upheld, although a major issue, was peripheral to

the central focus of the broadcast, the Authority has decided not to make an order.

Signed for and on behalf of the Authority

Iain Gallaway

20 July 1995

Appendix

Mr Mabey's Complaint to Television New Zealand Ltd – 19 September 1994

As president of the National Nutritional Foods Association (NNFA) and as manager

of Health and Herbs (a health food company), Mr Gary Mabey of Auckland

complained to Television New Zealand Ltd about an item called "Pills that can kill"

broadcast on 60 Minutes between 7.30–8.30pm on Sunday 18 September.

Mr Mabey listed a number of specific complaints.

1.  The programme alleged that:

Dietary Supplements escape the stringent health ministry controls

covering other medicines and it's this situation that could have led to the

death of an Auckland woman.

     Explaining that health foods were dietary supplements, not medicines, Mr

Mabey listed some of the controls and powers given to the Ministry of Health

by the Dietary Supplements Regulations 1985, issued under the Medicines Act

1981.

2.  It was wrong for the item to claim that the pills which were meant to cure

almost killed as it was legally forbidden to state that dietary supplements could

cure any disease.

3.  When the item reported that Dr Warren Stewart was not prepared to answer

questions about "Debbie", it failed to acknowledge that practitioner/patient

confidentiality would be breached by discussing a specific case. Furthermore,

there was no evidence presented from the Poisons Control Centre to support

the allegation that "Debbie" was being poisoned by the thyroid glandular

capsules.

4.  The reference to "Debbie" as a recovering alcoholic did not mention which

prescription tablets she might have been taking or that, as an alcoholic, she might

have some degree of permanent liver damage.

5.  Mr Mabey reported:

Dr Nick Cooper, who, we understand was not "Debbie's" regular Doctor

but a family friend, stated as fact, that she could have died. There was no

evidence presented that if she had died, it could have been proven to have

been the Thyroid capsules.

6.  Dr Cooper had expressed concern that Nurse Kay was still operating her

practice but the item should have been reported that she was the subject of a

hearing before the Nursing Council although no ruling had been issued.

7.  "Debbie's" description of Nurse Kay as a "charlatan" was possibly libellous.

8.  The repeated question to Dr Stewart as to whether he was still doing business

with Nurse Kay was a company/customer matter.

9.  Contrary to the reporter's statement that the herbal product Chaparral was

linked to hepatitis and liver cancer, recent research had failed to prove any

connection.

10.  L-Tryptophan was incorrectly described as a chemical and research would have

revealed that the reported blood problems with it in the United States were

related to a contaminated batch.

11.  Although Dr Jim Mann was described as New Zealand's "leading nutrition

expert"' he was unknown to the dietary supplement industry as such an expert.

Moreover, as a nutritionist and endocrinologist, he was not qualified to comment

on the manufacture of or legislative controls over dietary supplements.

12.  Contrary to the reporter's comment, any revision of the Act or the Regulations

was unlikely to increase the safeguards.

13.  Mr Mabey wrote:

 The final statement "she for one will never use Dietary Supplements

again" indicates, by association, that there are problems with all Dietary

Supplements and manufacturers and does considerable harm to the whole

health food industry.

In conclusion, Mr Mabey said the NNFA had been advised, incorrectly, before the

broadcast that the programme would be "well balanced and constructive". Instead, it

lacked research and balance and, Mr Mabey stated:

This would be the worst case of "tabloid journalism" I have seen on 60 Minutes.

From my own perspective, I always considered 60 Minutes to be a factual

programme – regretfully it has become the "Hard Copy" of TVNZ. There

would appear to be more footage on the cutting room floor than in the

programme. We are aware that the filming done at Megavitamin was initiated

under false pretences of the Medicines Act review. We are also aware that a

considerable amount of the footage of Bob Boyd [of the Ministry of Health]

was edited out.

TVNZ's Response to the Formal Complaint – 25 October 1994

TVNZ advised that the complainant had been assessed by its Complaints Committee

under standards G1, G4 and G6 of the Television Code of Broadcasting Practice.

It proceeded to deal with each of the listed points using the numbering contained in

the complaint.

1.  As the Medicines Act did not define dietary supplements as medicines, the

reporter was correct to state that supplements escaped the stringent controls

which applied to orthodox medicines. Nevertheless, the Ministry of Health was

involved in a review of the Act.

2.  The statement that the pills taken by "Debbie" were meant to cure was an

accurate summary of "Debbie's" account of what she had been told when given

the pills.

3.  Dr Stewart had not refused to answer questions about "Debbie" but, as the item

showed, questions were raised as to whether he could be held responsible for the

recipe prescribed by Nurse Kay. TVNZ said that Dr Cooper diagnosed thyroid

toxicity and that "Debbie's" suffering was alleviated when she stopped taking

the pills. It added that two analyses showed that the pills contained a high

concentration of thyroid extract and there were sufficient expert opinions to

establish the role of the thyroid extract in "Debbie's" illness.

4.  Questioning whether reference to "Debbie" as a recovering alcoholic involved a

breach of confidentiality on Mr Mabey's part, TVNZ said that it had been

advised that she was "not on a cocktail of prescription drugs" and the comments

about liver damage were irrelevant. It wrote:

[Debbie's] illness was specifically ascribed by the doctor who examined

her thyroid toxicity. The only thyroid supplement she had taken was that

prescribed by the nurse who had wrongly diagnosed a thyroid deficiency.

5.  Dr Cooper's comments, TVNZ pointed out, were based on his medical expertise

and his diagnosis was supported by independent medical and scientific sources.

6.  The reporter, not Dr Cooper, commented appropriately about the Nursing

Council investigation of Nurse Kay at the end of the programme. Nurse Kay

had declined to be interviewed and TVNZ had not been contacted, as promised,

by her lawyer.

7.  TVNZ regarded "Debbie's" remark about Nurse Kay as a "fair comment".

8.  Noting that Dr Stewart had discussed with the reporter his dealings with Nurse

Kay until his wife chose to terminate the interview, TVNZ said that the

question was fair and correctly pressed.

9. &10.  The Ministry of Health, TVNZ said, referred to its concerns about Chaparral

and L-Tryptophan and, given the quality of this source, it had not been

necessary to undertake further inquiries.

11.  Referring to his specialities and expertise, TVNZ maintained that Dr Jim Mann

was the appropriate person to comment on the points raised with him.

12.  As the review of the Medicines Act was not completed, TVNZ said that it had

based its comments about tighter controls on remarks from the Health

Ministry's Dr Boyd.

13.  TVNZ noted that "Debbie" had expressed her determination never to use

dietary supplements again.

By way of conclusion, TVNZ noted that the interview with Dr Boyd – as with all the

interviews included in the programme – had been edited. Declining to uphold the

complaint, TVNZ concluded:

The [Complaints] Committee did not share your opinion that the view of the

NNFA needed to be included and it placed emphasis on the introduction which

stated that this was a "cautionary tale" about one woman, and her experiences

with one dietary supplement. While it doubtless and appropriately carried a

"let the buyer beware" message, the item concluded the single case, and all

relevant parties were approached to comment.

Mr Mabey's Referral to the Broadcasting Standards Authority – 31 October

1994

Dissatisfied with TVNZ's decision, Mr Mabey referred his complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. He

repeated the points raised in his complaint and expressed concern that TVNZ's

Complaints Committee had reached its decision without apparently perusing a

transcript of the broadcast.

1.  Quoting the reporter's comment, Mr Mabey argued that the introductory

comment was a deliberate attempt to mislead the public into thinking there were

no controls on dietary supplements.

2.  The item claimed that "Debbie" was "told" the pills would cure and no evidence

was presented, other than the unsupported comments from Dr Cooper, that she

was anywhere near death.

3.  Dr Stewart acted correctly in not breaching patient confidentiality and the

experts at the Poisons National Information Centre were not consulted.

4.  Pointing out that he was aware that "Debbie" was a recovering alcoholic because

she was so described during the item, Mr Mabey questioned the competence of

TVNZ's Complaints Committee who did not seem to be aware of what was

broadcast in the item. Liver damage, as every medical expert knew, was

commonly caused by alcoholism.

5.  A professional hearing was set for December, Mr Mabey noted, to consider

both Dr Cooper's and Nurse Kay's involvement.

6.  Mr Mabey insisted that Dr Cooper expressed concern that Nurse Kay was still

operating without censure. He questioned what version of the programme the

Complaints Committee had watched.

7.  The reporter, not Dr Boyd, commented about Chaparral and L-Tryptophan. If

TVNZ had carried out appropriate research, it would have found no connection

between the former and hepatitis and liver damage. The item was also incorrect,

he added, to suggest a link between the latter and a blood disorder.

8.  In whose opinion, Mr Mabey asked, was Dr Jim Mann a leading nutrition

expert? He added:

I challenge TVNZ to provide evidence of Dr Mann's formal training in the

area of Dietary Supplement knowledge and manufacture and that he is

"New Zealand's leading nutrition expert".

9.  Objecting to TVNZ's interpretation that his comments were speculative, Mr

Mabey referred to the relevant documents and his discussions with Ministry of

Health Officials. He argued that TVNZ had adopted the approach as it was

"more sensational" than using Dr Boyd's actual words.

10.  Mr Mabey disputed TVNZ's argument that the segments of the interviews

about the named supplements had apparently been summarised for broadcast,

observing:

 I would strongly suggest that portions of the interviews that would have

thrown a different emphasis on the subject were actually edited out. This

is based on discussions I have had with Ruth Kay, Warren Stewart and the

NNFA has had with Dr Bob Boyd. It is very clear that the editing was

done to sensationalise the story rather than present hard, factual

information.

Mr Mabey argued adamantly that the NNFA should have been consulted as the trade

association which represented the health food industry. The item which had been

broadcast did not emphasise sufficiently that it was merely one case which did not

reflect on the whole industry.

By way of summary Mr Mabey was surprised that his complaint about the

inaccuracies had not been upheld. In addition, it was unfair – and one-sided – only to

use a partial case history. As a result, he argued that 60 Minutes had been discredited

as an accurate news source and he urged the Authority to censure TV2 and the

reporter for the inaccurate and insufficiently researched programme.

TVNZ's Response to the Authority – 25 November 1994

Explaining that the item, first, had dealt with one woman who had become seriously ill

when prescribed dietary supplements, and secondly, had asked why dietary

supplements were not subject to the same stringent regulation as orthodox medicines,

TVNZ said Mr Mabey's comments about its Complaints Committee were untrue.

1. Disagreeing with Mr Mabey's description of the review of the Medicines Act as

a "harmonising process", TVNZ said the item reflected the Ministry of Health's

belief that the present controls over dietary supplements were inadequate.

2.  TVNZ maintained that the following statement as part of the studio

introduction was accurate:

Tonight, a cautionary story about how pills that were meant to cure,

almost killed.

3.  As Dr Stewart was asked about "Debbie" in the context of the manufacture of

thyroid extract pills, no attempt was made to breach patient confidentiality.

4.  TVNZ noted that "Debbie" acknowledged during the programme that she was a

recovering alcoholic but the remark about possible abuse of confidential patient

information was related to Mr Mabey's complaint that "Debbie" was on a

cocktail of prescription drugs. That comment, TVNZ said, was incorrect. It

continued:

Dr Nic Cooper confirms that there was no symptom of toxicity prior to

"Debbie" taking the thyroid pills. Toxicity developed while she was

taking the pills, and was alleviated when she stopped taking the pills.

     There is a considerable difference between the woman at the heart of the

story volunteering information (her alcohol problem) to a reporter to

whom she has authorised disclosure under an assumed name, and Mr

Mabey (and others) obtaining information from an apparent medical

source. We note that in his referral Mr Mabey admits discussing the case

with Nurse Ruth Kay and Dr Warren Stewart.

     The suggestion that the TVNZ Complaints Committee received a doctored

tape of "60 Minutes" is outrageous. It demonstrates an ignorance of the

seriousness with which TVNZ takes it statutory responsibilities in the

complaints area.

5.  The outcome of the professional hearing about Nurse Kay, TVNZ commented,

had no relevance to the matters complained about.

6.  Acknowledging that the programme did include Dr Cooper's observation that

Nurse Kay was still operating without censure, TVNZ argued that it was Dr

Cooper's opinion and an expression of concern about the time it had taken for

the enquiries to be completed.

7.  Insisting that Dr Boyd was an authority on the two substances referred to,

TVNZ said the reporter was clearly quoting and alluding to Dr Boyd and his

dealings with Dr Stewart. TVNZ added:

Clearly the argument over these products between the men who are

charged with safeguarding public health at the Ministry, and those

represented by Mr Mabey is an ongoing one. The point made in the

programme was that Dr Stewart did not agree with Ministry requests and

decided to continue to stock his shelves with the products. It was Dr

Stewart's attitude to the requests (and what that indicated about

regulations governing the industry) as much as whether the Ministry was

right or wrong that the programme highlighted.

8.  Commenting that it was tempted to ask how did Mr Mabey know that Dr

Mann was not the leading nutrition expert if Mr Mabey did not know him,

TVNZ said Dr Mann's "impressive credentials" were outlined in the

programme.

9.  The reporter had carefully attributed to the Ministry of Health the comments on

the outcome of the review of the Act.

10.  TVNZ maintained that the 60 Minutes item told a story clearly, accurately and

without sensationalism. It added:

To suggest that 60 Minutes should have placed more emphasis on

"Debbie's" being an isolated case, begs Mr Mabey's claim to have read

the script in detail. "Debbie's" story was obviously a matter of public

concern, and was shown on television because it was in the public interest

that her experiences should be recounted. That those experiences have

wider implications is obvious – but the programme carefully described it as

a "cautionary" story, and that is how it was told.

TVNZ concluded by noting that "Debbie's" story was thoroughly checked before

broadcast. The absence of comment from Nurse Kay was a matter of regret. TVNZ

rejected Mr Mabey's personal attacks on the 60 Minutes reporter and said the

complaint had been competently handled by its Complaints Committee.

Mr Mabey's Final Comment – 5 December 1994

Pointing out that he was complaining on behalf of his own company as well as on

behalf of the National Foods Association, Mr Mabey said his scepticism about

whether TVNZ had reviewed the programme was justified in view of its mistakes as

to the programme's contents. He then dealt with the matters point by point.

1.  Enclosing a copy of the Minister's foreword to the discussion paper on the

review of the Medicines Act, he emphasised that no mention was made about

tighter controls on dietary supplements. The broadcast on the other hand, he

said, had made "a deliberate attempt to mislead the public" into thinking that

dietary supplements were not regulated.

2.  Contrary to what TVNZ maintained, the reporter had clearly stated "Pills that

were meant to cure almost killed". As neither Dr Stewart nor Nurse Kay made

such a claim, the item had been untruthful.

3.  Mr Mabey argued that definite attempts had been made to coerce Dr Stewart to

discuss "Debbie's" case and his business relationship with Nurse Kay.

4.  Mr Mabey wrote:

It is common knowledge that "Debbie" was taking prescription drugs.

Indeed, he added, "Debbie" was shown during the broadcast handling some

bottles of pills which were not containers used by Megavitamins or any other

manufacturer of dietary supplements.

5.  Mr Mabey commented:

The comment about the professional hearing does have a bearing. Usually

people are innocent until proven guilty. This was trial by the media,

without representation.

6.  As official action had not been taken to date to stop Nurse Kay practising, there

seemed to be little concern. Further, the Nursing Council hearing had been

deferred until March 1995.

7.  The Ministry of Health had the legal power to seize products if not withdrawn.

The reporter, not Dr Boyd, made some untrue statements about Chaparral and L

Tryptophan.

8.  However well-known in his own field, Mr Mabey maintained that Professor

Mann was unknown to the dietary supplements industry. He was therefore not

qualified to speak on it.

10.[sic]  Describing TVNZ's attitude as arrogant, Mr Mabey was astounded that it

believed that the industry would welcome the "cautionary tale". He said:

The only justification for 60 Minutes not contacting the NNFA is that

they were concerned that actual "facts" would get in the way of their

cautionary tale".

He added:

Let me assure you that this programme has had a serious effect on the

whole Dietary Supplement industry in New Zealand and reflected on the

integrity of us all.

By way of conclusion, Mr Mabey said the programme did not make it clear that

"Debbie" was an isolated case. It had been designed to show as the reporter's final

comment indicated, that dietary supplements should all be treated as dangerous. If, as

TVNZ maintained, a large team had prepared the programme:


            ... how did they get it so very wrong, miss many valid points and not conduct

            proper research into the Dietary Supplement industry or even present accurate

            information on the current legislation.

Noting:

            The programme has had a devastating financial effect on both Megavitamin

            Laboratories and Ruth Kay. Neither parties have been found guilty of any

            wrong doing at this time and have the support of the NNFA and various other groups

            and associations.

Mr Mabey asked:

            There are many areas of concern about this programme and all I ask is that you

            view the programme very carefully and hopefully make some recommendations

            to prevent a similar occurrence.

TVNZ's Response to Mr Mabey's Final Comment – 20 December 1994

Explaining that it did not usually respond to a complainant's final comment, TVNZ

said that some points in Mr Mabey's letter nevertheless called for further

clarification. It used the numbering contained in Mr Mabey's letter.

1.  TVNZ contended that the foreword which explained the process of review,

rather than the specific areas to be reviewed, had no relevance to the complaint.

2.  Arguing that the comment objected to was a factually correct summary of the

patient's opinion in the item's introduction – and not part of the report itself –

TVNZ said that Mr Mabey's complaint blurred this distinction.

3.  Dr Stewart had not been coerced to do anything.

4.  Despite what might be "common knowledge" among the practitioners with

whom Mr Mabey worked, TVNZ expressed amazement that an issue involving

patient confidentiality had apparently been a matter of discussion between Mr

Mabey and Nurse Kay. It added:

 There is an enormous difference between a patient volunteering

information about her condition, and a practitioner or doctor providing

prescription details without the authorisation of the patient.

5–9.  TVNZ did not wish to comment further on these matters.

10.    TVNZ commented:

TVNZ is astonished that "60 Minutes" should be the subject of what is

clearly an orchestrated discussion from those within the industry who feel

(wrongly in our view) that the item has cast a slur over all their

reputations.

It said that it would not be a party to revealing irrelevant medical details although Mr

Mabey, through innuendo, cast doubt on the quality of the item. TVNZ continued:

It was perfectly right and proper to pursue this story. It revealed an

unsatisfactory situation which the public at large had a right to know. Any

decision which suggests otherwise must raise serious questions about the

freedom of the press in this country - a freedom many New Zealanders accept

unquestionably, but which must be jealously guarded at all times if democracy is

to be meaningful.

     The "60 Minutes" team acted throughout with care and integrity, and we invite

the Authority to consider the views of the many medical experts in this story

who have offered their support for "Debbie" because of their obvious concerns

for the safety of the public.

Further Correspondence

In view of the differing views about Chaparral and L-Tryptophan and the references

by both the complainant and TVNZ to the Ministry of Health, the Authority decided

to seek the views of the Ministry's Dr Boyd.

In his reply dated 21 December 1994, Dr Boyd began:

I must make it clear that TVNZ had done a considerable amount of research

before coming to me about this programme and I would not like the impression

left that Genevieve Westcott was being used to present a Ministry of Health

line in her enquiry. This has already been suggested to me by some people

representing the natural therapy practitioners, industry and consumers.

With reference to Chaparral, he wrote:

Chaparral is a herb. An association between taking Chaparral and liver

abnormalities has been reported. The Ministry is unaware of any evidence

proving that chaparral was not a possible cause of liver damage.

     There are no medicines in New Zealand sold with chaparral as an active

ingredient. It was sold as a food in dietary supplement products. Because the

risks appeared to outweigh the benefits of having this product as a food, the

Ministry, through its Foods Administration Section asked manufacturers to

remove chaparral from food products.

Explaining that L-tryptophan as used in dietary supplements was produced

synthetically, Dr Boyd reported:

When the Ministry received reports of over 1000 cases of illness in patients

overseas who had taken higher doses of L-tryptophan products it again carried

out a risk assessment and asked manufacturers and distributors to stop selling

and promoting dietary supplements containing the higher doses. L-tryptophan

remained available when recommended for lower daily intakes and as a medicine.

     Although there appears to have been an association between the disease

eosinophilia-myalgia syndrome (EMS) and a changed method of synthesis in the

plant of the major supplier, the most recent comment from the World Health

Organisation is that it is not absolutely certain that this was the cause. The

disease was of blood cells and muscle tissue, not just blood.

                 It is certainly correct that Dr Warren Stewart and his company were the only

            manufacturers and distributors to refuse to comply with the Ministry request to

            restrict dietary supplements to a lower dose at the time.