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Talacek and CanWest TVWorks Ltd - 2007-078

Members

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

Complainant

  • Nikki Talacek of New Plymouth

Dated

29th October 2007

Number

2007-078

Programme

Downsize Me!

Channel/Station

TV3

Broadcaster

CanWest TVWorks Ltd


Complaint under section 8(1)(a) of the Broadcasting Act 1989
Downsize Me! – recommendations on weight loss made by naturopath – allegedly inaccurate

Findings
Standard 5 (accuracy) – no misleading or inaccurate statements – not upheld

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 become healthier. Series two of the programme was broadcast on Tuesday evenings at 7.30pm on TV3 between September 2006 and June 2007. The Downsize Me! team consisted of Dr Simon Mayhew, personal trainer Lee-Ann Wann, and naturopath Damian Kristof.

Complaint

[2]   Nikki Talacek made a formal complaint about the 22 and 29 May episodes of Downsize Me! to CanWest TVWorks Ltd, the broadcaster. She alleged that Standard 5 (accuracy) had been breached with respect to a number of statements.

[3]   The complainant stated that she was a registered dietitian and had concerns about the nutritional advice given on the programme. She claimed that the naturopath on the programme “poses as an expert in nutrition and frequently gives out incorrect and often dangerous advice”. Looking at the 29 May episode, Ms Talacek stated that the naturopath had made the following incorrect recommendations:

  • Recommending that a 6’5" 18-year-old man consume only 2000kcal per day. She stated that this person would need 2660kcal per day just to survive, and his requirements would increase to 3700kcal per day when activity was added. Even if a deficit of 1000kcal per day was recommended, this took his requirements down to 2700kcal per day. Ms Talacek stated that the usual recommendation was a deficit of 500kcal per day, equalling 3500kcal per week to obtain a 1kg weight loss. She maintained that the recommendation of “just under 2000kcal per day” was too low for this person.
  • Recommending weight loss of 2.25kg per week, totalling 18kg over the eight-week timeframe of the programme. Ms Talacek stated that this was unsafe and unrealistic, noting that the naturopath had stated that it was a “disappointing weight loss” when a participant lost 0.9kg over a two-week period. She said this was a safe and desirable amount.
  • Stating that most people were unable to tolerate gluten and yeast in the diet. Ms Talacek contended that this statement would “scare the general public”, and that removing gluten from the diet without a medical reason could mask symptoms of a more sinister condition.

[4]   The complainant also referred to a number of other statements made by the naturopath in other Downsize Me! shows. She noted that he had described broccoli as one of the best sources of calcium and said that peaches were also a good source of calcium. Ms Talacek stated that dairy products were by far the best source of calcium. By falsely stating that non-dairy products were a great source of calcium, she said, viewers may decide to cut out dairy products from their diet. Ms Talacek said that the naturopath had also recommended very low carbohydrate diets which were dangerous and could lead to nutritional deficiencies.

Standards

[5]   CanWest assessed the complaint under Standard 5 and guidelines 5b and 5d of the Free-to-Air Television Code of Broadcasting Practice, which provides:

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

[6]   CanWest listed the various qualifications and experience of the programme’s personal trainer, doctor and naturopath. It noted that the naturopath, who was the focus of the complainant’s concerns, had a four-year undergraduate degree in Naturopathy and had almost completed a five-year B.Chiro programme. He was accountable to both the New Zealand Charter of Health Professionals (known as “the Charter”) and The South Pacific Association of Natural Therapists, it said. Both of these organisations were accountable to the Health and Disability Commission, CanWest wrote.

[7]   With regard to the 29 May episode, the broadcaster said it had received detailed responses to the complaint from the programme makers. Looking at the recommendation that a 6’5" 18-year-old man consume only 2000kcal per day, CanWest said that – without seeing the person and taking actual measurements – Ms Talacek must have measured the man’s basal metabolic rate (BMR) using the Harris-Benedict formula. This was a calorie formula using the factors of height, weight, age and sex to determine BMR. However, it noted, this calculation did not take into consideration lean body mass. It wrote:

Therefore, this equation will be very accurate in all but the extremely muscular (will underestimate caloric needs) and the obese (will over estimate caloric needs). At 131 kilograms, [the participant] is obese. The usual BMR calculation will overestimate his caloric requirements. Also as you are probably aware BMR values can differ significantly between people who have similar weight and height – so the most accurate method is to measure lean body mass.

[8]   The broadcaster said that the naturopath had measured the man’s metabolic rate at 2480kcal, and this measurement meant that a moderate reduction to 2000kcal was appropriate. CanWest contended that in fact the man’s calorie intake was not constrained to a specific calorie amount; instead his food intake was measured by palm size.

[9]   The broadcaster disagreed that the weight loss recommendations made in the programme were unsafe and unrealistic. It noted that the safe level of weight loss depends on the individual involved, for example losing 1kg for a 200kg man was insignificant, but 1kg a week for a 50kg woman was significant. CanWest wrote:

The Downsize Me! perspective is not to starve people (which would have negative effects on metabolism), but to tailor an exercise and nutrition programme suitable for the individual involved.

[10]   The broadcaster noted that the naturopath had said he was disappointed with the man’s lack of fortitude because the man had binged on alcohol and food at his birthday. He had said “you didn’t even make it three weeks and you blew out. If you don’t change this behaviour then you’ve done this eight-week thing for nothing. I’m really, really disappointed”.

[11]   CanWest stated that the naturopath had not said that most people were unable to tolerate gluten and yeast in their diet. The naturopath had referred to the amount of bread that the participant had been eating (75kg of stodgy food in ten days). The participant had said “I was bloated and now it’s gone”, and the naturopath had replied “what we find with people when they stop having bread and yeast and wheat the bloating tends to go. The reason that happens is most people can’t digest that amount of grain”. In the broadcaster’s view, this was a fair comment due to the amount of bread the participant was eating. Throughout the programme, it wrote, the naturopath had recommended healthy breads and grains for the participants to eat.

[12]   The broadcaster also responded to the complainant’s concerns about the level of calcium in broccoli although this comment had not occurred in either of the two episodes detailed in the complaint.

[13]   The broadcaster found that there were no inaccuracies in the programme and it declined to uphold the complaint.

Referral to the Authority

[14]   Dissatisfied with the broadcaster’s response, Ms Talacek referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. She stated that the qualifications of the naturopath did not amount to a nutrition qualification.

[15]   Referring to the broadcaster’s contention that the male participant was not constrained to a particular calorie amount, the complainant maintained that the naturopath had stated clearly in the show that he should eat just under 2000kcal per day. This was constraining him to a specific calorie amount, she said.

[16]   Ms Talacek agreed that the safe level of weight loss depended on the individual. However, she said, recommending a weight loss of 2.25kg per week for eight weeks (total of 18kg) was dangerous irrespective of the size of the individual. The complainant said that she had discussed this with other dietitians who agreed that it was a dangerous and unrealistic amount to be recommending.

[17]   The complainant reiterated her view that the naturopath had indicated to viewers that most people were unable to tolerate gluten and yeast in their diet, and that his remark was not solely targeted at the amount of bread that the participant had been eating.

[18]   Ms Talacek stated that one of her main concerns was that viewers would attempt to follow the recommendations on the programme without proper medical advice. Further, she said, much of the advice would unnecessarily alarm viewers.

Broadcaster’s Response to the Authority

[19]   CanWest stated that it had asked the programme maker to provide responses to the complainant’s referral. With respect to the naturopath’s qualifications, it said that naturopathy qualified the individual to practice nutritional medicine. The approach used by the naturopath on Downsize Me! clearly differed from Ms Talacek’s approach. Further, it said, the Downsize Me! approach did not conform to the New Zealand Dietetic Association or NZ Heart Foundation recommendation to eat grains to the degree illustrated in the food pyramid. The most current and up to date research indicated that this was far beyond what was safe and healthy for many people, it wrote.

[20]   The broadcaster maintained that there was no recommended amount of weight loss that was safe or unsafe. It noted that the participant’s blood tests had confirmed enormous improvements in his health.

[21]   CanWest noted that many viewers contacted the programme through its website or by telephone and advice was given freely.

Complainant’s Final Comment

[22]   In the complainant’s view, although naturopathy may be a formal qualification, dietetics was seen as a higher and more comprehensive qualification regarding food and nutrition. She maintained that a weight loss of 2.25kg per week was unsustainable and could lead to nutritional deficiencies.

Authority's Determination

[23]   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.

Procedural matter

[24]   In her formal complaint about the 22 and 29 May episodes of Downsize Me!, Ms Talacek outlined her concerns about aspects of the series which were not contained in those two episodes. These relate to the naturopath stating that broccoli was one of the best sources of calcium, and allegedly recommending very low carbohydrate diets.

Because Ms Talacek has only made a formal complaint about the 22 and 29 May broadcasts, the Authority has no jurisdiction to consider these parts of her complaint.

[25]   Furthermore, it notes that the alleged inaccuracies identified by the complainant were all contained in the 29 May broadcast. Accordingly, the Authority confines its consideration of the complaint to that broadcast.

Standard 5 (accuracy)

[26]   Standard 5 (accuracy) applies to news, current affairs and “other factual programmes”. Downsize Me! is not a news or current affairs programme, and therefore the Authority must decide whether the programme falls within the definition of a factual programme. The Authority made the following comments about factual programmes in Decision No. 2006-126:

The Authority considers that factual programmes are those which present themselves, and are reasonably understood by the audience, to be authoritative sources of information. This may include, for example, a section of a radio talkback programme in which a host asserts a statement or series of statements as the truth. The important criterion is whether a reasonable viewer or listener is entitled to expect that the information given in the programme will be truthful and authoritative, and not just opinion or hyperbole.

[27]   In the Authority’s view, Downsize Me! was a factual programme to which the standard applies. It considers that viewers were reasonably entitled to expect that the information given in the programme was truthful and authoritative.

[28]   Having determined that Standard 5 applies to the 29 May broadcast, the Authority turns to consider each alleged inaccuracy in turn.

Recommending that a 6’5" 18-year-old man consume only 2000kcal per day.

[29]   Ms Talacek argued that recommending just under 2000kcal per day was too low for the participant shown in the programme. In response, CanWest argued that the participant was not limited to a calorie amount, but was told to control his portion size.

[30]   The Authority agrees with Ms Talacek that the naturopath did leave the impression that it was safe and desirable for the participant to eat only 2000 calories per day. He said “I’d like you to be having maybe 2000 calories in a day”, and later in the programme referred to the participant eating “just under 2000 calories a day”.

[31]   However, the Authority considers that Ms Talacek has not provided a reasonable basis for it to question this figure. It has taken into account CanWest’s comments about how the naturopath calculated the recommended daily intake for the participant in the programme, and that Ms Talacek has not provided any opposing calculations to support her argument that this amount should not have been recommended.

[32]   Because the complainant has not provided a reasonable basis for her allegation that the programme was misleading or inaccurate in this respect, the Authority declines to uphold this part of the Standard 5 complaint.

Recommending weight loss of 2.25 kilograms per week, totalling 18 kilograms over the eight-week timeframe of the programme.

[33]   In the complainant’s view, it was unsafe and unrealistic to recommend that the participant lose 18 kilograms over a period of eight weeks. She was concerned that the general public would believe that they would need to lose large amounts of weight each week to be successful with their weight loss efforts, and that this could lead to nutritional deficiencies.

[34]   In the Authority’s view, the episode of Downsize Me! complained about was clearly providing very specific advice and recommendations that were tailored to a particular participant. It finds 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. It finds that Standard 5 was not breached in this respect.

Stating that most people were unable to tolerate gluten and yeast in the diet.

[35]   The naturopath stated that “many people are very aggravated by yeast” and also “What we find with people when they stop having bread and yeast and wheat the bloating tends to go. The reason that happens is most people can’t digest that amount of grain”. The complainant argued that this was misleading and would have alarmed viewers into thinking they should not be eating gluten and wheat.

[36]   The Authority notes that the naturopath’s comments were made in the context of talking about this particular participant’s eating habits, as the man had previously been eating 75 kilograms of stodgy food over a period of ten days. The participant commented that, now he had changed his eating habits, he was no longer bloated. The Authority agrees with CanWest that the naturopath’s comment was clearly directed at this participant, who had been eating an excessive amount of bread.

[37]   The Authority also observes that the Downsize Me! programme did allow the participant to eat healthy breads and grains, and therefore it was not recommending that he eliminate gluten and wheat from his diet. It finds that the statement was not misleading or inaccurate, and it does not uphold this part of the complaint.

 

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

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
29 October 2007

Appendix

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

1.            Nikki Talacek’s formal complaint – 5 June 2007
2.           CanWest’s response to the formal complaint – 10 July 2007
3.           Ms Talacek’s referral to the Authority – 6 August 2007
4.           CanWest’s response to the Authority – 3 September 2007
5.           Ms Talacek’s final comment – 16 September 2007