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New Zealand Dietetic Association and TVWorks Ltd - 2008-140

Members

  • Joanne Morris (Chair)
  • Paul France
  • Tapu Misa
  • Diane Musgrave

Complainant

  • New Zealand Dietetic Association

Dated

6th May 2009

Number

2008-140

Programme

Downsize Me!

Channel/Station

TV3

Broadcaster

TVWorks Ltd


Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Downsize Me! - recommendations on weight loss and nutrition – allegedly inaccurate and misleading

Findings
Standard 5 (accuracy) – "factual programme" in the sense that it reported actual events and offered general information – advice and "scare tactics" presented in personable way – general messages were to eat better, exercise regularly and improve health – viewers would have understood that most of the advice was tailored to the particular participant – however, broadcasters need to take special care when discussing medical conditions – endorsement of coconut oil misleading – one aspect upheld

No Order

This headnote does not form part of the decision.


Broadcast

[1] Downsize Me! was a health, diet and exercise programme where overweight people worked for eight weeks to lose weight and reduce health risks. The Tuesday 23 September 2008 episode, broadcast at 7.30pm on TV3, featured a man named Scotty. The Downsize Me! team consisted of Damian Kristof, who was introduced as a "diet designer", and a personal trainer.

[2] Throughout the episode, the team gave advice about Scotty's current health and designed an exercise and diet programme for him. At the end of the programme before the closing credits, the following words were briefly displayed in the bottom third of the screen:

The diet and exercise regime in this programme was designed and supervised by health professionals and tailored to our participant’s medical status and their specific needs. Consult with your doctor before embarking on any diet or exercise programme.

Complaint

[3] The New Zealand Dietetic Association (NZDA) made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the programme contained a number of specific inaccuracies and misleading statements. It nominated guidelines 5b and 5d to the accuracy standard.

[4] The complainant noted that the participants had health assessments as part of being on the programme, so the experts had their full history and were able to make statements specific to their health needs. However, it considered there was insufficient mention of that fact, and so viewers might misinterpret advice for the individual as population-wide recommendations. The complainant argued there was no distinction between fact and opinion, which could lead to viewers receiving misleading and inaccurate nutritional information.

[5] NZDA then considered a number of specific aspects of the programme that it believed were inaccurate or misleading.

Statement that participant was "pushing his sugar levels up and making him more insulin resistant".

[6] The complainant stated that "sugar itself does not push sugar levels up; being diabetic or having insulin resistance does this". Diabetes and insulin resistance, NZDA said, were caused by excess calories - not just excess sugar - leading to excess weight.

Statement that "poached eggs on top of spinach will give some fantastic energy and balance sugar levels out".

[7] NZDA argued that complex carbohydrates and protein would have the most beneficial effect on blood glucose levels, not just eggs and spinach. "Cardioprotective Dietary Patterns" were recommended for all people at increased risk of cardiovascular disease, NZDA said, and this limited the consumption of whole eggs to three per week.

Recommendation that participant lose 15kg over eight weeks.

[8] NZDA said this equated to over 1.8kg per week weight loss, which was unrealistic and unhealthy to endorse. A weight loss of 0.5-1.0kg per week was considered safe, healthy and sustainable by dietitians. The complainant argued the programme could have led viewers to believe they needed to lose a large amount of weight every week to be successful with their weight loss efforts, which could lead to nutritional deficiencies if not medically supervised. Similarly, it could have led people who were losing 0.5-1kg of weight per week to believe they were not losing enough to be successful, when in fact they were doing well.

Statement that participant "most probably has Type 2 diabetes, but we can reverse this".

[9] NZDA contended that the diagnosis of diabetes is not imprecise as “probably” implied; there were clearly established diagnostic criteria in the Evidence Based Best Practice Guidelines for the management of Type 2 diabetes.

[10] Once a person has diabetes it is not "curable" in most circumstances, NZDA said. It could be controlled with weight loss and diet. The only current documented "cure" for Type 2 diabetes was gastric bypass surgery. Typically at the time of diagnosis approximately 50 percent of the beta-cell mass had already been lost and typically continued to decline further. Therefore it was unrealistic to talk about "reversing" or "curing" Type 2 diabetes, NZDA argued. It quoted Diabetes New Zealand as saying:

In people with Type 2 diabetes, glucose builds up in the blood. But with good management, your blood glucose levels may go down to normal again. But this does not mean you are cured. Instead, a blood glucose level in your target range shows that your treatment plan is working and that you are taking care of your diabetes.

[11] NZDA noted the episode also talked about checking serum insulin levels. These tests were not routinely done in New Zealand because of cost, time and logistics issues, it said, so discussing them in the programme had the potential to create unrealistic expectations about what tests should be appropriately done to diagnose Type 2 diabetes.

[12] The complainant stated that dietary intervention was strongly recommended as an integral component in the management of cardiovascular risk. Healthy eating was critical as it had beneficial effects on metabolic control, blood pressure, lipid levels, weight management and general well-being.

Recommendation to use coconut oil "because it doesn't burn".

[13] NZDA agreed that when cooking at a high temperature it was best to use a fat with a high smoke point because the antioxidants and the structure of the beneficial fatty acids was lost when burning oils. However, coconut oil was high in saturated fat which raised ‘bad’ cholesterol, it said, and should not be recommended to people in the participant’s medical condition. Coconut oil was listed in the "mostly avoid" section of the cardioprotective dietary guidelines, and it was better to use rice bran, avocado, soy or safflower, sesame, peanut or canola oils which had very high smoke points and also provided cardiovascular benefits.

When talking about blood glucose levels, presenter stated that "when they are above 5 that can be a little bit of a challenge".

[14] NZDA maintained the recommended blood glucose range was 4.0-8.0mmol/L, which was considered safe and well controlled. Expecting a person’s blood glucose levels to be under 5 most of the time was unrealistic, NZDA said, and could be unrealistic for a person with diabetes as they may have a hypoglycaemic episode. Further, access to the testing strips given to Scotty to use was tightly controlled as they were a prescription item. Therefore, NZDA considered the frequency of testing portrayed in the programme would foster an unrealistic perception.

Standards

[15] The complainant nominated Standard 5 and guidelines 5b and 5d of the Free-to-Air Television Code of Broadcasting Practice in its complaint. These provide:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
5d Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

Broadcaster's Response to the Complainant

[16] TVWorks considered that the disclaimer played at the end of the programme was relevant to the complainant's concerns that viewers would accept the advice given as targeted at the general population, and also to many of its complaints about accuracy. It said that the billboard was played over the concluding story of the featured contestant and the producer considered this was the most ideal time for screening that information. TVWorks emphasised that it was on air for "five full seconds", and was satisfied it could be read in its entirety.

[17] As a general comment, TVWorks stated that the programme was not required to include the entire range of medical and nutritional facts and opinions about specific conditions. To do so, it said, "would take what is essentially an uplifting, health-promoting, socially responsible show and make it inaccessible and unwatchable to most viewers". It said the production team took great care to ensure that all material facts and opinions in the show were taken into consideration when making editorial choices. TVWorks was of the view that the programme did not contain any inaccurate or misleading material.

[18] The programme's producer then responded to each of the complainant's accuracy concerns.

Statement that participant was "pushing his sugar levels up and making him more insulin resistant".

[19] The producer noted that research from "Diabetologia", "American Journal of Clinical Nutrition" and "Ann Intern Med”, to name a few, clearly stated that sugar influenced cellular insulin binding and insulin sensitivity negatively in healthy young subjects, let alone those at high risk of Type 2 diabetes. Excess weight did not cause insulin resistance, the producer said, it was in fact the reverse.

Statement that "poached eggs on top of spinach will give some fantastic energy and balance sugar levels out".

[20] Since the 2003 New Zealand Guidelines, the producer said, significant research had been published that gave evidence that egg consumption did not negatively affect total cholesterol or endothelial function indicating that dietary cholesterol may be less detrimental to cardiovascular health than was previously thought. This episode demonstrated the necessity for a balanced healthy diet to ensure the participant's sugar levels did not drop too far and become unsafe; his results showed significant improvement over the eight weeks. The producer emphasised that the Guidelines were only guiding principles and not an absolute course of action.

Recommendation that participant lose 15kg over eight weeks.

[21] The producer maintained that based on the information it had, there was no research that suggested it was unsafe for humans to lose weight rapidly. The producer agreed that if someone lowered their energy intake too dramatically the BMR was affected negatively. The combination of nutritious food, exercise, and water consumption likely enabled Scotty to lose weight in significant amounts, and his blood tests showed that his health significantly improved.

[22] If an individual had put on weight fast, it was appropriate to halt this and assist the body to lose weight equally as rapidly, the producer said. Literature more often stated that it was probably more dangerous to put on weight than to lose weight. Repeatedly on the programme participants reported feeling better, and their tests showed improvements in their BMI, lipid profile, glycaemic control and so on.

[23] TVWorks also noted the Authority’s previous Decision No. 2007-078 relating to Downsize Me!, in which the Authority found that:

...the reasonable viewer would not conclude that they should aim to lose weight at the same rate as the participant in the programme. Accordingly, it considers that viewers would not have been misled by the recommendation that this participant should be aiming to lose weight at a rate of 2.25 kilograms per week.

Statement that participant has "most probably got Type 2 diabetes... but we can actually reverse this".

[24] In order "to reverse the potential diagnosis of a completely lifestyle manageable condition such as NIDDM/Type II diabetes is not to say 'CURE'", the producer wrote. The absence of a medical diagnosis for diabetes implied that it could be reversed and indeed prevented, the producer said. Further, the use of the word "probably" was suggestive of the syndromes associated with diabetes such as hyperglycaemia, hyperinsulinaemia, and glucoseuria, which could indeed be corrected before the conditions worsened.

Recommendation to use coconut oil "because it doesn't burn".

[25] The producer attached further information from a 2004 study on the influence of virgin coconut oil on blood coagulation factors, lipid levels and LDL oxidation in cholesterol-fed Sprague-Dawley rats, from which the programme’s producers had concluded that:

The results demonstrated the potential [beneficial] effect of virgin coconut oil in lowering lipid levels in serum and tissues and LDL oxidation by physiological oxidants. This property of VCO may be attributed to the biologically active polyphenol components present in the oil.

When talking about blood glucose levels, presenter stated that "when they are above 5 that can be a little bit of a challenge".

[26] The recommended blood glucose range from the Diagnostic Medlab NZ was 3.5-6.0, the producer said, and in the case of someone who has insulin resistance and fasting blood sugar above 5 the potential for sugar to rise into an unsafe range was greater. The testing strips were available from pharmacies throughout New Zealand, he said, and were promoted so that diabetics could proactively manage their blood sugar control.

[27] TVWorks concluded that the programme was not inaccurate or misleading and declined to uphold the complaint.

Referral to Authority

[28] Dissatisfied with TVWorks' response, NZDA referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[29] NZDA pointed out that its members were the only nutrition experts liable under the Health Practitioners Competence Assurance Act 2003, and as such were legally bound to ensure consistency and accuracy of key messages, and help reduce misinformation. NZDA was concerned that public health and safety was at stake both in respect of viewers and participants on the show.

[30] The complainant said its primary concern was that several pieces of information were conveyed in the programme that contradicted the evidence-based practice recommendations currently in use and/or conflict with what is accepted best practice in New Zealand. These issues were:

  • Eggs were encouraged apparently without limit
  • The implication that diagnosis of Type 2 diabetes is not clear-cut
  • The statement that Type 2 diabetes was reversible
  • The endorsement of coconut oil
  • The high frequency of self monitoring of blood glucose (SMBG) levels by an individual without established Type 2 diabetes

[31] In reality, NZDA said, the current evidence-based/accepted best practice was as follows.

[32] First, eggs should be restricted to three whole eggs per week in accordance with cardioprotective dietary patterns included in the Management of Type 2 Diabetes New Zealand Guidelines Group 2003.

[33] Second, clear diagnosis criteria existed for Type 2 diabetes. No patient should be left with the uncertainty that the expression "probably" conveyed, NZDA said. Those criteria utilised random and/or fasting blood glucose levels with progression to a Glucose Tolerance test if warranted. The programme referred to the use of serum/plasma insulin. This test was not routinely used, NZDA said, because of significant logistical issues with appropriate cool storage of the sample and a very tight timeframe in which the test could be performed.

[34] Third, evidence existed that those with established Type 2 diabetes had lost approximately 50% of their beta-cell mass at the time of diagnosis and that this declined further over time.

[35] Fourth, coconut oil was specifically discouraged in the cardioprotective dietary patterns. NZDA referred the Authority to its complaint of 17 December which provided additional information about coconut oil.

[36] Finally, NZDA maintained eligibility for test-strips for SMBG was tightly controlled by Pharmac and required an established diagnosis (Diabetes Management Pharmaceutical Schedule October 2008). Beyond that the number of strips available to an individual was determined by their risk of hypoglycaemia as a consequence of prescribed Sulphonylurea medications and/or insulin.

[37] NZDA noted that the references used by TVWorks were largely based on studies on rats and rabbits done in the 1980s to early 2000. It urged the Authority to consult the references it had provided which summarised the evidence for best practice in humans.

[38] NZDA concluded that it was misleading and potentially alarming for viewers to be presented with information that was at odds with evidence-based guidelines which had been peer-reviewed, or recent well-designed clinical trials. It asked the Authority to review the references provided and the science behind the complaints.

Broadcaster's Response to the Authority and Further Comments

[39] TVWorks supplied a response to the complainant’s referral from the programme's producer.

[40] With regard to the consumption of eggs, the producer attached an article recently produced by the Dietitians Association of Australia entitled “The role of eggs in a healthy diet”, and quoted the following passage:

In a healthy western population, there is insufficient evidence to restrict egg intake as part of a healthy diet. Eggs should be considered in a similar way as other protein rich foods and selected as part of a varied diet that is low in saturated fat, high in dietary fibre and contains a variety of cardioprotective foods such as fish, wholegrains, fruit, vegetables, legumes and nuts.

[41] The producer also attached an article captioned "The scientists say eggs have virtually no effect on cholesterol levels", and an excerpt from a study called "Egg consumption and high-density-lipoprotein cholesterol".

[42] Turning to the other points in the complainant's referral, the producer referred the Authority to the broadcaster’s original response which noted that "the tests used [for diagnosing diabetes] are available through GPs and give a much more accurate response", and that the test strips were available from the pharmacy for minimal cost. The producer said the programme encouraged the participants to monitor their health closely as in their experience it had a much more positive outcome.

Complainant's Final Comment

[43] With regard to the implication in the programme that diagnosis of Type 2 diabetes is not clear cut, the statement that Type 2 diabetes was reversible, and the endorsement of coconut oil, the complainant said it stood by its original arguments and the supporting information provided to the Authority.

[44] Looking at TVWorks' argument about egg intake, NZDA stated that it disputed the relevance of the evidence provided, as the articles were looking at “healthy” populations and individuals, which did not include the programme’s participants. In addition, the study referenced was 15 years old and had a very small sample size of 24 healthy adults, NZDA said. While it was aware that egg consumption guidelines had been relaxed for the general population, that did not generally include individuals at higher risk of cardiovascular disease. The cardioprotective dietary guidelines NZDA referenced intended to modify that high risk, it said. The complainant considered this episode’s participant appeared to be at high risk of cardiovascular disease and would therefore benefit from a cardioprotective diet.

[45] NZDA considered that this issue highlighted the key theme of its complaints, which was that "dietitians are trained to provide nutritional advice in both health and disease and have the expertise to discern when general public level guidelines do not apply and when more specific guidelines should be the reference point".

Broadcaster's Final Comment

[46] TVWorks attached further responses from the executive producer of Downsize Me!, and Damian Kristof in association with the Head of the Charter for Natural Health Practitioners.

[47] The executive producer said that the programme makers found it "incredible that the NZDA continually disregard the inform". She emphasised that:

We have never once said that Damian is a dietitian and are proud that he is a naturopath having chosen to go in this direction and achieve the results we have been able to and the phenomenally positive public response.

[48] With regard to NZDA’s argument that the programme's advice went against evidence-based best practice guidelines, Damian noted that diabetes was recognised as the second leading cause of death in New Zealand. He was of the view that the guidelines referenced by the complainant "have proven to be a complete and total failure in regards to the correction of this endemic problem and have not resulted in a desired and positive outcome". He emphasised that as a natural healthcare practitioner he had achieved positive health outcomes by incorporating a healthy diet and positive lifestyle changes.

[49] With regard to the programme’s disclaimer, Damian emphasised that a disclaimer was published that was similar to other disclaimers.

[50] In response to the complainant's argument that the use of coconut oil was not advisable, Damian said that the NZDA had been "duped by the very successful campaign conducted by vegetable oil manufacturers to effectively downgrade the importance of coconut oil and its role in a healthy diet".

[51] Finally, in response to NZDA's argument that advice given on Downsize Me! was misleading the public, he stated that:

Every day of the week the general public is exposed to misleading and potentially alarming information in the media. However, the general public is sophisticated to a degree to be able to be discerning and sort the wheat from the chaff.

I have never taken it upon myself to provide misleading information to clients or the general public. My guiding principle is and always has been to assist my fellow man and woman to obtain and maintain a balanced healthy lifestyle, by promoting a wellness programme.

Further Information Requested by the Authority

[52] The Authority noted that NZDA had complained that access to blood sugar testing strips was tightly controlled as they are a prescription item, while TVWorks argued that testing strips are available from pharmacies throughout New Zealand.

[53] As the Authority's own informal inquiries tended to support TVWorks’ view that testing strips could be purchased from pharmacies without a prescription, it gave the complainant an opportunity to either provide further information to support its argument, or withdraw this aspect of its complaint.

[54] NZDA noted the following point made in its original complaint:

Eligibility for testing strips for SMBG is tightly controlled by Pharmac and requires an established diagnosis. Beyond that the number of strips available to an individual is determined by their risk of Hypoglycaemia as a consequence of prescribed Sulphonylurea medications and/or insulin.

[55] NZDA said the point it was raising was that within the publicly funded health system in New Zealand, people diagnosed with diabetes were eligible for free testing strips through Pharmac. People managing diabetes through diet and exercise were eligible for 50 strips per prescription, it said. Otherwise, strips could be purchased but at a significant cost. NZDA considered that the volume of testing per day portrayed on the programme was significantly greater than would be covered by prescription, so it did not accurately reflect what would be reality for most viewers with diabetes "apart from those able to purchase strips without regard to cost". In addition, a person would need to purchase a meter to read the strips and would need access to someone who could interpret the results, NZDA said.

Authority's Determination

[56] 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.

Nature of the Programme

[57] In Decision No. 2007-078, the Authority found that Downsize Me! was a "factual programme" to which the accuracy standard applied. It commented that viewers were reasonably entitled to expect that the information given in the programme was truthful and authoritative. However, while the programme was informative at a general level, the Authority considers that its overarching purpose was to entertain viewers and convey an uplifting social message. The programme's presenters employed shock tactics, and presented advice in a personable and sometimes dramatic way, in an attempt to impress upon the participants the importance of eating well and exercising.

[58] The Authority acknowledges that discussions which challenge orthodox or mainstream medical opinion are important parts of the right to freedom of expression provided by the New Zealand Bill of Rights Act 1990. It would therefore be hesitant to limit the expression of genuine opinion on matters of health, provided that it was clearly distinguishable as opinion. Further, the perspective and qualifications of the person giving the advice should be disclosed so that viewers can make an informed decision about the validity of their opinions. This is particularly important where a programme is discussing specific health conditions such as diabetes, because the potential consequences of a viewer adopting incorrect or controversial advice could be life-threatening.

[59] TVWorks argued that the disclaimer at the end of each episode of Downsize Me! was sufficient to make it clear that the advice in the programme was tailored to the particular participants, so that viewers would not adopt it themselves. The Authority disagrees. The disclaimer was small, difficult to read and was not displayed for sufficient time for an ordinary viewer to read and understand it. Furthermore, Damian Kristof’s qualification as a naturopath was never disclosed to viewers; he was simply described as a “diet designer” and the disclaimer referred to “health professionals”.

[60] In order for a disclaimer to operate in the manner suggested by the broadcaster – effectively as a "cure-all" - the Authority considers that it would need to specify the qualifications of the person giving advice and, ideally, be presented verbally and visually at the beginning of the programme.

[61] Having determined that the disclaimer was not sufficient to frame the programme so as to avoid breaching the accuracy standard, the Authority now proceeds to consider each of the statements claimed to be inaccurate by NZDA.

The endorsement of coconut oil

[62] The complainant argued that coconut oil was high in saturated fat which raised ‘bad’ cholesterol, and should not be recommended to people in the participant's medical condition. Coconut oil was listed in the "mostly avoid" section of the cardioprotective dietary guidelines, NZDA said. The broadcaster attached information from a study on the influence of virgin coconut oil on blood coagulation factors, lipid levels and LDL oxidation in cholesterol fed Sprague-Dawley rats.1

[63] Having considered the information provided by both parties, it is clear to the Authority that Damian’s advice about coconut oil is contrary to mainstream medical opinion. The Authority notes that the Cardioprotective Dietary Patterns issued by the Ministry of Health for the management of Type 2 diabetes twice expressly discourage the use of coconut oil. In its recommendations for the use of fats and oils, diabetics are advised to "mostly avoid" coconut oil, as opposed to, for example, safflower, sesame or olive oil which are described as "best choices". Similarly, the guidelines advise that when consuming oils, spreads and nuts, diabetics should "choose products made from sunflower, soya bean, olive, canola, linseed, safflower or nuts and seeds, other than coconut".

[64] If Damian had been clear that it was merely his genuinely-held opinion that coconut oil was good to use, and that this was contrary to mainstream advice, viewers could have made up their own minds about his recommendation. However, the programme gave no indication that this recommendation was innovative or alternative. Viewers were therefore likely to interpret Damian’s advice as fact, and as mainstream opinion among nutrition experts.

[65] Accordingly, the Authority finds that the endorsement of coconut oil, without qualification that it was opinion which challenged current Ministry of Health guidelines, was misleading.

[66] Having found that this aspect of the programme was misleading, the Authority must consider whether to uphold this part of NZDA's complaint as a breach of Standard 5 (accuracy).

[67] The Authority acknowledges that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-040, the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[68] The Authority also considers that it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of the accuracy standard on this occasion. Upholding NZDA's complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. The Authority considers this was particularly important in this instance, where the information related to viewers' health. In these circumstances, the Authority upholds this part of the accuracy complaint.

Egg consumption

[69] The complainant argued that Damian's recommendation that poached eggs and spinach would "balance sugar levels out" breached Standard 5 because eggs were high in cholesterol and best practice guidelines recommended limiting intake to three eggs per week.

[70] The Authority notes that Damian did not specify how many or how few eggs the participant should be eating. The meal that he recommended at this point in the programme was only an example of what Scotty should be eating; Damian did not suggest that he could eat eggs as often as he liked.

[71] Regardless, the information provided by Damian and the broadcaster suggested that intake of eggs need not be rigorously restricted. A 2008 study on overweight/obese males following carbohydrate-restricted diets (CRD), in which some subjects increased egg intake to three eggs per day, found that "including eggs in a CRD results in increased HDL-Cholesterol while decreasing the risk factors associated with [metabolic syndrome]".2

[72] The Authority finds therefore that Damian had sufficient justification for his recommendation, and it would not have misled viewers. It declines to uphold this aspect of the complaint.

The implication that diagnosis of Type 2 diabetes is not clear-cut, and the statement that Type 2 diabetes was reversible

[73] The Authority accepts that the references to diabetes made by Damian and subsequently by the personal trainer were, in the first instance, clearly an example of the scare tactics employed by the programme to prompt Scotty to correct habits contributing to his poor health, and later to encourage him to continue the prescribed regime. Damian told Scotty that he:

...most probably [had] Type 2 diabetes... but we can actually reverse this by doing the right amount of exercise, eating the right foods and you can turn this around. It's still not too late to get rid of it.

[74] The Authority notes that there was no information in the programme or in the broadcaster's arguments to suggest that either presenter had any particular expertise to advise on diabetes or its treatment. As outlined above, it considers that special care must be taken by programme presenters and broadcasters when discussing serious medical conditions, because misleading information could have harmful effects.

[75] On this occasion, a majority of the Authority (Joanne Morris, Tapu Misa and Diane Musgrave) finds that Damian’s unfortunately loose terminology led to the statement being ambiguous and overly simplified. The statement that Scotty could "get rid of it" could have been interpreted as a statement that diabetes could be "reversed". However, the majority considers that it was intended to convey that Scotty’s lifestyle put him at a high risk of diabetes, and that he could significantly reduce this risk if he changed his behaviour and started to exercise and eat healthily. In the majority's view, the programme’s audience would have understood that this was the message the programme was trying to get across, rather than stating that the disease could be reversed once diagnosed.

[76] In these circumstances, and taking into account the importance of the right to freedom of expression, the majority declines to uphold this aspect of the complaint.

[77] A minority of the Authority (Paul France) would uphold this aspect of the complaint. The minority considers that Damian’s statement would have left viewers with the impression that Scotty could "get rid of" diabetes. The minority notes that diabetes is an irreversible condition which can be managed, but cannot be cured. In these circumstances, the minority finds that Damian’s statement was inaccurate and in breach of Standard 5.

The high frequency of self monitoring of blood glucose (SMBG) levels by an individual without established Type 2 diabetes

[78] NZDA maintained that access to the testing strips was tightly controlled as they were a prescription item. Therefore, it considered the frequency of testing portrayed in the programme would foster an unrealistic perception. TVWorks argued the testing strips were available from pharmacies throughout New Zealand, and they were promoted so that diabetics could proactively manage their blood sugar control.

[79] With regard to the further information provided by the complainant, the Authority disagrees with the complainant that viewers would have been left with an unrealistic perception about the availability of testing strips. Both parties, and the Authority's own informal inquiries suggest that the strips can in fact be purchased from most pharmacies without a prescription. NZDA’s main concern appears to be the cost involved. In the Authority's view, the programme left no impression about the cost of the testing strips, but used the test to demonstrate that the participant had successfully lowered his blood sugar levels by adopting a healthy diet and lifestyle, in line with the theme of the episode.

[80] Accordingly, it declines to uphold this aspect of the complaint.

 

For the above reasons the Authority upholds the complaint that an episode of Downsize Me! broadcast by TVWorks Ltd on 23 September 2008 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[81] Having upheld the complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. Only one aspect of the broadcast was upheld as being misleading, but in the context of the programme, the Authority is of the view that the breach was not sufficiently serious to warrant an order. It considers that the publication of its decision is sufficient on this occasion.

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
6 May 2009

Appendix

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

1. New Zealand Dietetic Association's formal complaint – 21 October 2008
2. TVWorks' response to the complaint – 21 November 2008
3. NZDA's referral to the Authority – 18 December 2008
4. TVWorks' response to the Authority – 15 January 2009
5. Further comments from TVWorks – 12 February 2009
6. Complainant's final comment – 26 February 2009
7. TVWorks' final comment – 3 March 2009


1 K.G. Nevin and T. Rajamohan. Beneficial effects of virgin coconut oil on lipid parameters and in vitro LDL oxidation. Clinical Biochemistry, September 2004, 37(9), 830-835. Department of Biochemistry, University of Kerala, Kariavattom, Thiruvananthapuram, India.

2 Mutungi, G., et al. Dietary cholesterol from eggs increases plasma HDL cholesterol in overweight men consuming a carbohydrate diet. Journal of Nutrition, 2008, 138(2), 272-276.