BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Inside New Zealand documentary: “What’s Really in our Food” – discussed the effects and risks, and questioned the widespread use, of additives in New Zealand food – allegedly unbalanced, inaccurate, unfair

Findings
Standard 4 (balance) – programme fairly presented significant viewpoints – not upheld

Standard 5 (accuracy) – two statements inaccurate – upheld

Standard 6 (fairness) – not unfair to persons or organisations taking part or referred to in the programme – not upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An Inside New Zealand documentary entitled “What’s Really in our Food” was broadcast on TV3 at 8.30pm on 13 September 2007. The programme discussed the effects and risks, and questioned the widespread use, of additives in New Zealand food. The programme had the following introduction:

Since the age of the supermarket, thousands of different chemicals have been added to our food, and the health effects are only just starting to show.

[2]   The narrator noted that manufacturers in New Zealand were allowed to add over a dozen chemicals to food that had been banned in countries like Britain, Japan and the USA. A family were shown having a “standard kiwi breakfast” which, the narrator said, was “chemically rich, our cereals, breads and drinks are full of artificial sweeteners, preservatives, and flavours. All of which independent experts say could be behind an explosion of modern illnesses”.

[3]   Dr Debbie Fewtrell, described as a childhood nutrition and behaviour expert, stated her view that “practically any medical condition we see could be related to food, or food additives”. The narrator noted that New Zealand’s Food Safety Authority was of the view that our food was safe. Lydia Buchtmann from Food Standards Australia New Zealand commented that additives were only a “tiny part” of our food, and that over a lifetime people would never get to dangerous levels.

[4]   The narrator stated that some additives such as Vitamin C and salt could be beneficial, and Professor Ray Winger from Massey University added that the major reason for the increased life expectancy of our population was the improvement in the safety and hygiene of food. He noted that without additives as an option, people would not have their current life expectancies.

[5]   Asking the question “But have we gone overboard?”, the narrator said that there were 16 major groups of additives, four of which were contentious. These were sweeteners, flavours, preservatives and colours. Alison White, a health researcher, commented that we do not need colouring in our food, and that certain colours were “very suspect”. Rick Starr, a senior lecturer of marketing at the University of Auckland, referred to red dye number 2 which had been banned when it was found to be carcinogenic.

[6]   The reporter stated that some colours like Amaranth and Brilliant Blue rang “alarm bells” due to their links with health problems, and that they had been banned in many countries but not in New Zealand. Dr Fewtrell referred to the yellow colouring tartrazine which, she said, was “neurotoxic behaviourally” and depleted nutrients.

[7]   The programme reported the results of an experiment it had conducted, which involved giving children three coloured drinks. All three drinks were raspberry flavoured, but they were coloured red, blue and white. The experiment showed that the colour of the drinks had an impact on taste perception, with most children describing the blue and white drinks as being blueberry or lemon-flavoured even though they were all the same flavour.

[8]   Dr Peter Dingle, a nutritional and environmental toxicologist, stated that the number of children with hyperactivity and Attention Deficit Hyperactivity Disorder (ADHD) had risen, and that part of the problem was food colouring. Dr Fewtrell also stated that diet had been shown to be a bigger predictor of criminal behaviour than a person’s family history.

[9]   Dr Patricia Holborow, a health researcher, conducted an experiment on the programme involving two groups of children at a party. After a morning of activities in which both groups were well focused, one group of children was fed a lunch of “junk food” containing added colouring, and the other group ate homemade foods with no added colours. Both lunches contained the same amount of sugar. After lunch, the narrator stated that the children from the “colour” table showed a decline in coordination, balance and self control compared to the other table. Dr Holborow stated that there was also a link between eating foods containing colouring and suicide. Professor Winger commented that there was a group of people, particularly children with ADHD, who reacted to colours such as tartrazine, but he said that generally “the reactions aren’t there, it’s just not been shown by science”.

[10]   The narrator noted that sugar had been replaced in many food items with artificial sweeteners such as aspartame which, Ms White said, was an issue that concerned people worldwide. “Anti-aspartame activist” Chris Wheeler stated that the chemical rapidly breaks down at 30 degrees centigrade in the body into products such as methanol, aspartic acid and phenylalanine. These in turn broke down into carcinogens and formaldehyde, he said. The narrator said that opponents of aspartame “make the extreme claim it causes everything from cancer to brain damage” and claim that it should be avoided by diabetics.

[11]   The narrator stated that the food safety authority believed that aspartame was safe, and Ms Buchtmann stated that over 600 studies had been conducted and no problems had been found. Mr Dingle stated that although the bulk of scientific research did show that aspartame was not a problem, the bulk of research was industry funded.

[12]   The programme reported that an Italian study had found aspartame caused significant increase of tumours, carcinomas, lymphomas and leukaemia in lab rats, concluding that aspartame was a “multi-potential carcinogenic agent”. Ms Buchtmann stated that the organisation would always review new evidence which showed that an additive was a problem, as the standards were not concrete. Chris Wheeler advised that all pregnant women should steer clear of aspartame.

[13]   Looking at preservatives, the narrator stated that there were three main categories: sulphites, benzoates, and nitrites. Naturopath Jenny Barlass stated that the nitrites in processed meats were stable until they encountered gastric acid in the stomach, at which point they broke down into nitrosamine, a known carcinogen. She recommended that people consumed such foods sparingly or ate them with foods containing things such as Vitamin C to help neutralise the effects of nitrosamine.

[14]   The narrator noted that preservatives were believed to contribute to one of New Zealand’s top health issues, asthma. Dr Fewtrell said that the World Health Association had stated its belief that 20 to 30 percent of asthmatics were triggered by sulphite preservatives.

[15]   The programme then discussed the fourth category of additives, flavours, which the narrator said were “unregulated, contentious, everywhere”. The narrator noted that food manufacturers in New Zealand could simply refer to “flavour” on the label, without disclosing the quantity or combination of chemicals they had added to the food. Rick Starr stated that children were very sensitive to artificial flavours and became trained to appreciate them more.

[16]   The programme showed the results of an experiment it had conducted by giving children the choice of pure orange juice or an artificially flavoured orange juice. Seven out of ten children had chosen the artificial product.

[17]   Discussing the use of mono sodium glutamate (MSG), Dr Fewtrell noted that it could cause headaches, sweating and palpitations in a section of the population who could not tolerate it. The narrator said that researchers had also claimed MSG was connected with asthma, cancer and Parkinson’s disease, and Alison White stated that MSG had been linked to brain damage in laboratory rats. Australia had banned MSG in food designed for young children, she noted, but New Zealand had not. The narrator asserted that this was odd since our food regulatory body was a trans-Tasman body based in Canberra. Ms Buchtmann noted that labelling requirements said that manufacturers had to include MSG on their labels, however small a quantity the product contained. The narrator stated that this could be problematic, as MSG was not always labelled by name. It could be labelled by number, or by an alternative name.

[18]   The narrator also stated that the regulatory system which only tested each additive in isolation could result in a health cost being overlooked. Dr Fewtrell commented that nobody could tell how people eating large amounts of additives now would be in 20 years time. Ms Buchtmann commented that additives which are tested one by one would not have a worse effect when mixed together.

[19]   The programme listed a number of colours, preservatives, flavours and sweeteners which it suggested should be avoided, and pointed out that the market would dictate whether manufacturers continued to use additives in their foods.

Complaint

[20]   The New Zealand Food and Grocery Council Incorporated (FGC) made a formal complaint about the programme to TVWorks Ltd, the broadcaster, alleging that it was unbalanced, inaccurate and unfair. It outlined its complaint under a number of sub-headings.

Lack of balance given to the safety aspects of the additives identified in the programme

[21]   The FGC noted that the programme had lasted approximately 40 minutes, and a diverse range of contributors had highlighted negative aspects about specific additives. Only two and a half minutes had been allocated to Professor Winger, Lydia Buchtmann and another scientific expert to provide constructive comments about additives. The FGC contended that this amounted to a lack of balance.

[22]   In the complainant’s view, many of the concerns highlighted in the programme could have been countered had Professor Winger and Ms Buchtmann been given adequate time to discuss them. Both experts had provided in-depth and lengthy information to the producers of the programme, it said. The FGC contended that Professor Winger, “one of the most highly respected food scientists in the country”, could have provided objective information about the inaccuracies discussed in respect of “the physiology of nitrates and nitrites and the allegation they cause nitrosamines in the stomach”. This would have shown nitrites and nitrates in their correct perspective, it wrote.

[23]   Because this balance was not forthcoming, the FGC maintained, many viewers would now have false ideas about the safety of the additives identified in the programme.

The programme failed to address food intolerance and sensitivities in the correct perspective

[24]   The FGC contended that it was a fact that two percent of the population have a food allergy (recognising that this was not the subject of the programme), and that a slightly greater proportion of the population have a food intolerance or sensitivity. However, it wrote, food additives were only one of “a myriad of substances” that could cause adverse side effects such as hyperactivity, headaches, irritable bowel syndrome, and lethargy. The complainant noted that many more people had reactions to natural foods such as strawberries or milk, chemicals in the environment, or plants and flowers. The FGC contended that:

Food additives are a very minor contributor to the adverse health effects suffered by a small sector of the population.

The programme failed to address the fact that the participants in the programme, who had experienced adverse effects, would have an intolerance or sensitivity to the chemical in question. They would react to that chemical whether it was in the form of an artificial additive or in a natural ingredient.

[25]   Furthermore, the complainant wrote, diagnosing the cause of an adverse reaction was highly complex and should only be undertaken by medical experts. Many viewers could, in the FGC’s view, have been “lulled into a false sense of security to self diagnose by believing the removal of certain additives was a ‘cure all’”. It noted that the programme stated there were no concerns with the “natural colour” additives, but failed to state that artificial additives were produced with greater purity and more consistent quality than many natural counterparts. The FGC was of the view that artificial additives were as safe as a “natural additive”, and it contended that the programme had done viewers a disservice by failing to highlight this fact.

[26]   The complainant maintained that the programme had also failed to mention that some of the research linking additives to adverse reactions, particularly hyperactivity, was subjective. The research shown on the programme was, it said, “superficial”, and measuring children’s behaviour patterns and linking it to specific additives could be extremely difficult. It wrote:

Very robust, double-blind, placebo-controlled experiments that are peer reviewed must be undertaken before the link can be made between an adverse reaction and food intolerance. The research shown in the programme where children consumed either Table A or Table B foods was very superficial. The research made it appear that all the children exposed to the additives exhibited adverse behaviour. Properly controlled research would show that only a small percentage, if any, of the children would have exhibited behavioural changes. Furthermore the behaviour of the children in the “controlled” groups was not shown on the programme.

[27]   The complainant asserted that the programme had stated that behavioural problems were a growing trend, and made the assumption that additives were to blame. It made no reference to the fact that there were many other causes of behavioural problems, the FGC noted, and therefore some viewers could be led to believe all behavioural problems were additive driven.

Assertions in the programme in respect of aspartame and MSG were grossly misleading

[28]   The FGC contended that the views of Alison White, a “vehement opponent of aspartame”, should have been questioned and countered. If they had been, it said, viewers may have been left with a very different perspective on aspartame.

[29]   The complainant stated that the following facts should have been included in the programme to counter Alison White’s views:

• Aspartame is one of the most thoroughly studied ingredients in the world and has been approved as safe to use by all food authorities such as the FDA, national foods authorities in the UK, Germany and Japan, the World Health Organisation and the Food and Agriculture Organisation of the United nations.
• Aspartame is made of protein components, aspartic acid and phenylalanine, which are found in all protein foods (e.g. meat, grains, dairy products).
• Methanol that is produced by the metabolism of aspartame is identical to that which is provided in much larger amounts by fruits, vegetables and their juices. Methanol derived from aspartame does not accumulate in the body and thus cannot reach harmful levels.
• Aspartame is not linked to vision problems, in particular glaucoma which was mentioned in the programme. Only high quantities of methanol can affect vision. The very small amounts of methanol that are consumed from aspartame are well within safe levels and is far less than that obtained from many fruits and vegetables.
• The American Academy of Paediatrics Committee on Nutrition has advised that aspartame is safe for pregnant women and the developing baby.

[30]   The complainant acknowledged that an Italian study had questioned the safety of aspartame, but it noted that this had been challenged by global food authorities.

Glutamate and MSG

[31]   The assertions about MSG that were made in the programme had, in the complainant’s view, compounded the misconceptions surrounding the additive which had “attracted bad press over many years”. The FGC contended that it would have been helpful to advise that:

• MSG was one of the most thoroughly researched substances in the food supply, and there is worldwide support for its safe use in food.
• Glutamate is ten times more abundant in human milk than cows milk.
• Glutamate is produced in the body as well as occurring naturally in protein foods (cheese, mushrooms, meat, fish, vegetables and mushrooms) and is vital to metabolism and brain function.
• MSG is the sodium salt of glutamate and comprises water, sodium and glutamate. It contains one-third the amount of sodium as table salt (13 percent as opposed to 40 percent) so it helps reduce the amount of sodium that is required.
• The human body treats glutamate and MSG that is added to food in the same way as natural glutamate found in foods. It does not distinguish whether it is naturally present in food or has been added.

[32]   As with all food, the FGC said, a very small percentage of the population may have temporary adverse reactions to MSG, whether it was added or naturally occurring.

Asthma food link

[33]   The programme, in the complainant’s view, had placed considerable emphasis on the food trigger link to asthma. It contended that it would have been helpful for the programme to have advised:

• Food trigger asthma is unusual. It is the trigger in approximately 6% - 8% of asthmatic children and 2% of adults.
• Foods that trigger asthma are eggs, peanuts, tree nuts, soy, wheat, fish, shellfish and sulphites. Thus sulphites are only one of many foods that can trigger asthma.
• As sulphite is a trigger, albeit for a small number of asthmatics, the Australia New Zealand Food Standards Code (ANZFS Code) requires that sulphites be declared in the same way as all other additives, and must have a warning or declaratory label if they are present in concentrations of 10mg/kg or more.
• Scientific evidence has not been able to link conclusively food additives such as tartrazine, benzoates, MSG, aspartame, nitrite and nitrates with asthma.
• The rate of asthma, for reasons not yet identified, is declining in New Zealand.

Specific inaccuracies

[34]   The FGC contended that the following were inaccurate statements made in the programme which cast “serious aspersions on the industry”:

• Showing a particular brand of cereal as a cause of concern because cereals were “chemically rich”, without asking the manufacturer for comment.
• Stating that the mixture of additives in food such as biscuits, yoghurt, and fruit bars could put the level above the recommended daily intake (RDI).
• Stating that microbial health is compromised by the use of additives.
• There was a reference to the fact that the industry does not state quantities of a particular additive in a food, but no reference to the fact that the Australia New Zealand Food Standards Code prescribes the levels at which additives must be used.
• Stating that manufacturers do not always include the additives that are included in a product, when the ANZFS Code requires that all additives must be included on the label or information be available if the product is unpackaged.
• Stating that using additives saves the food industry millions of dollars, so there is no need for it to change.
• Stating that there was a “spill over” effect with additives and that a significant proportion of the population cannot cope with this overload. There was no scientific basis for this statement.
• Stating that good food is additive free.
• Dr Fewtrell’s statement that she told her clients to shop around the outside of the supermarket to find food, because in the middle of the supermarket was “food science”.
• Companies were only socially responsible if the market they sell to pressures them to be socially responsible.
• Stating that manufacturers would make “crap in a can, for as cheap as they can for as long as you will eat it”.
• Statement that flavours are totally unregulated.
• MSG is sometimes included on a label under a different name.
• Stating that MSG was banned in Australia for addition to children’s food but not in New Zealand, when both countries had banned MSG from being added to infant formula. MSG was not banned from children’s food in Australia, and there were no additives which were banned in Australia but not New Zealand and vice versa.

[35]   The FGC said its members were seriously concerned about the above “slurs on the industry” and the inaccurate statements. It stated that member companies took an extremely responsible approach to their operations, and it was not in anyone’s interests to market unsafe food. It wrote:

New Zealand food companies work under one of the most strict and robust regulatory systems in the world. The industry has had substantial input into the development of these rigorous standards because food safety is of prime importance. The safety and quality of New Zealand food is extremely high. FGC member companies would not undermine their brands by using unsafe ingredients. Programmes such as “What’s Really in our Food?” seriously undermines the food industry’s credibility on which our domestic and export economy is highly reliant.

[36]   The complainant recognised that the broadcaster had “every right to state views about the contents in food and the effects they can have”. However, it said, it was most unfortunate that the programme lacked balance and that the risks from food were rarely depicted in the correct perspective. The risks from food additives, the FGC wrote, rated as one of the lowest of all food risks. This point was not made clear in the programme.

Standards

[37]   TVWorks assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

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.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[38]   Looking first at Standard 4 (balance), the broadcaster contended that the programme did not discuss a “controversial issue of public importance” to which the balance standard applied. It accepted that information about our food was important to society, but contended that the focus of the programme was not on whether or not additives should be in our food. Instead, it presented information and a particular perspective on some food additives. TVWorks did not consider that food additives were “controversial” in the sense that there was an ongoing debate about their use; rather, it felt the points made by the FGC regarding balance were really matters of factual accuracy that should be dealt with in relation to Standard 5.

[39]   Even if it could be said that the programme did consider a controversial issue of public importance, TVWorks wrote, the material in the programme presenting a perspective “in favour” of the use of food additives was sufficient to inform viewers that there is scientific support for the use of additives and that additives in our food are checked and monitored by our food safety regulators.

[40]   The broadcaster recognised that the programme was primarily focused on encouraging consumers to check food additives, and many participants were “vehemently ‘anti’ food additives”. However, it said, this did not mean that the programme failed to adequately inform viewers that there was another contrary perspective. Overall, TVWorks was satisfied that the requirements of Standard 4 were met.

[41]   Turning to Standard 5 (accuracy), the broadcaster noted that the FGC’s primary complaint was that the programme was misleading to viewers who may have been left with the impression that the removal of additives would be a “cure all”. It stated that it did not gain that impression from watching the programme, but instead was left with the impression that certain food additives may contribute to intolerance or reactions. TVWorks said that the producer of the programme had told it:

Our intention was to make the viewers aware of the potential risks surrounding the use of food additives in this country. We wanted to make people aware of the use of these additives, to know what to look for on the list of ingredients and to give more thought to the food they buy for themselves and their families.

[42]   The broadcaster noted that the production team had “conducted extensive research before undertaking” the programme and had found numerous studies pointing to the potential risks in the use of some food additives. The producer said they had also spoken to a number of highly qualified scientists and people in the food industry who were concerned about the use of additives. Furthermore, it wrote, the producer had commented that numerous additives found in New Zealand foods had been banned in other countries. This alone suggested that New Zealand consumers should not simply accept that the authorities “have got it right and that we’re all perfectly safe”.

[43]   In terms of the specific inaccuracies referred to by the complainant, the broadcaster maintained that most of the statements were clearly opinion rather than fact. Where the complainant had referred to factual material, the broadcaster said it could not tell from the letter of complaint “which particular fact was in the programme and what you contend the correct factual position is”. It invited the complainant to set out any factual inaccuracies, and provide “proof” of what it contended to be the correct factual position, and it would then ask the programme’s producers to provide the material they had relied upon.

[44]   On the material currently presented to it, the broadcaster said, it did not find any breach of the requirements of the accuracy standard. It said that it would be happy to consider this aspect of the complaint again if the complainant provided more detailed information.

[45]   With respect to Standard 6 (fairness), the broadcaster assumed that the FGC regarded the programme as being unfair to the suppliers and manufacturers of food whom it represented. Referring to the reasoning outlined above, TVWorks did not consider that the programme was unfair to that group. As explained by the producer, it wrote, the programme endeavoured to allow sufficient time for those in favour of the use of additives to express their perspective in relation to each of the additives referred to. It provided the following quote from the producer:

The structure of the documentary was such that each of the five parts dealt with a particular group of additives – artificial colours, sweeteners, preservatives. Typically each part would build an argument around why an additive is used, and the proponents would be given an opportunity to argue their point of view at the end of the part. I feel the counter view was placed appropriately and given sufficient time and weight to satisfy the [code] requirements.

[46]   The broadcaster considered that overall the programme allowed sufficient time and was therefore fair to the groups represented by the FGC.

Referral to the Authority

[47]   Dissatisfied with the broadcaster’s response, the FGC referred its complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. It maintained that Standards 4, 5 and 6 had been breached.

[48]   The FGC was of the view that the use of food additives was an issue of wide public interest and one which gave rise to considerable debate and controversy. It submitted that the programme did not give sufficient assurances, as contended by TVWorks, that there was scientific support for the use of food additives. The complainant reiterated that the scientific experts had been allocated only two to three minutes to express their views and, in a programme where so much information was presented by people opposed to additives, it would have expected that they would have been allocated more time.

[49]   The complainant stated that the producers of the programme had conducted lengthy interviews with both Professor Winger and Ms Buchtmann in which they had explained the important roles additives play in food processing and the rigor in which they are analysed to ensure their safety. It maintained that the balance standard had been breached.

[50]   Referring to TVWorks’ assertion that its main complaint was that viewers would think the removal of additives was a “cure all”, the FGC argued that this was only one of the many reasons that it had lodged the complaint. The following reasons were, it said, equally important:

• the programme created needless and unwarranted fears
• viewers could be left in doubt about the safety of additives
• the failure to put the role food additives play in food insensitivities in the correct perspective
• the failure to note chemical reactions and sensitivities are the same whether the chemical is in the form of a food additive or is inherently present in the food
• the industry was depicted in an unfair and unfavourable light.

[51]   The FGC stated that it was difficult to understand TVWorks’ reasoning in respect of the specific inaccuracies outlined in its complaint. Whether or not the statements were opinion or fact, it wrote, they were incorrect. The complainant maintained that the programme had labelled a particular brand of cereal as “chemically rich”, and contended that this had portrayed a reputable company in a derogatory and unfair way. All foods were “chemically rich”, it said, whether they were natural or processed.

[52]   The complainant noted that TVWorks was willing to ask the producers of the programme to provide the material on which the “factual” claims were made. It believed that the evidence for all the specific inaccuracies listed in its complaint warranted justification by the producers.

[53]   The FGC contended that the programme was unfair to suppliers and manufacturers of processed food. It disagreed with the broadcaster's argument that the programme was not unfair because it had allowed sufficient time for those in favour of using additives to express their perspective in relation to each additive referred to in the programme. The complainant maintained that the programme did not allow sufficient time to balance the arguments raised by the opponents of additive use, or to correct the inaccurate statements that were made.

Further Information Requested by the Authority

Information Requested from the Broadcaster

Asthma

[54]   The Authority asked TVWorks to provide the source of the following statement by Dr Fewtrell, given that there was a direct conflict between the percentages given in Dr Fewtrell’s statement and the percentages referred to by the complainant (see paragraph [33]):

And probably, the sulphites, have to be number one in the danger list, they are associated with triggering asthma. In fact the World Health Authority has stated that they believe that 20 to 30 percent of asthmatics are triggered by sulphite preservatives.

[55]   The broadcaster stated that Dr Fewtrell’s statement was based on a World Health Organisation (WHO) meeting in 1999. It said that a report¹ from that meeting contained the following finding:

...the prevalence [to sulphite sensitivity] in asthmatic children was higher, approximately 20-30%, after double-blind challenges to both steroid-dependent and non-steroid-dependent asthmatic children.

[56]   The broadcaster stated that Dr Fewtrell’s statement was accurate “if you use the children figure as a comparator” – at the higher end of 20 to 30 percent rather than the six to eight percent stated by the complainant. TVWorks agreed that it would have been desirable for the statement to have explicitly referred to children, but it maintained that the point being made was accurate (that sulphites could heighten sensitivities).

Regulation of Flavours

[57]   The Authority asked TVWorks to comment on whether the programme should have included the information referred to by the complainant – that the Australia New Zealand Food Standards Code prescribes the levels at which additives must be used – noting the following statement in the programme:

Flavours are totally unregulated.  As long as it says "flavour" on the label, manufacturers do not have to disclose the quantity or combination of chemicals they've added to our food.

[58]   The broadcaster said that this statement represented the reality of what is done in practice. It said that there was no “real limit or regulation of flavouring as consumers would understand regulation or limitation to mean”. It referred to the following table from part 1.3.1 of the Food Standards Code:

Additive name

Max Permitted Level

Qualifications

Benzyl alcohol

500

mg/kg

In the final food

Ethyl acetate

GMP

Glycerol diacetate

GMP

Glyceryl monoacetate

GMP

Isopropyl alcohol

1000

mg/kg

In the final food

Butylated hydroxyanisole

1000

mg/kg

Triethyl citrate

GMP

[59]   First, the broadcaster said, these seven flavourings were the only flavourings specified in the code, which meant that a large number were unregulated. Second, the quantities specified were so large that “they do not represent a limit”. TVWorks noted that “GMP” means Good Manufacturing Practice, which it said was defined in the Code as “the quantity of additive added to food shall be limited to the lowest possible level necessary to accomplish its desired effect”.

MSG in foods designed for young children

[60]   The Authority asked TVWorks to comment on whether Alison White’s comment in the programme that “Australia banned [MSG] in foods designed for young children, New Zealand has not done the same” was accurate (noting the complainant’s argument that both countries had banned MSG from infant formula and that Australia had not banned MSG from children’s food).

[61]   The broadcaster provided the following comments from Alison White:

...I agree banned is not the right word here I should have worded this differently – upon reflection it would have been better to have said “it is strange considering the harmonisation...” or similar wording but what I was working on was my understanding that MSG is not permitted in foods designed for young children in Australia before the harmonisation of food standards between Australia and NZ. I know of no such restriction applying in NZ.

...Comments about additives not being different in Australia and NZ are only true since the implementation of the Act governing [the Food Standards Australia New Zealand].

Information Requested from the Complainant 

[62]   The Authority asked the complainant to provide the source for its statement that food is the trigger “in approximately 6% - 8% of asthmatic children and 2% of adults”.

[63]   The complainant provided the Authority with two publications by the International Food Information Council (IFIC) which referred to the fact that food triggered asthma was unusual and occurred only among six to eight percent of children and less than two percent of adults. It contended that the IFIC was a highly respected organisation which based all its information on sound, robust, scientific evidence.

Further Submissions from the Complainant

[64]   In response to the broadcaster’s submissions on the regulation of flavours, the FGC disputed TVWorks’ contention that a large number of flavours were unregulated. It noted that the flavours that manufacturers were permitted to use were prescribed in Standard 1.3.1 (11) of the Food Standards Code. These flavours, it wrote, all underwent safety assessments and the overwhelming majority of flavours were natural rather than artificial.

Further Submissions from the Broadcaster

[65]   The broadcaster noted that the FGC’s argument related to certain flavours being permissible, but did not “tackle the issue of the levels of flavouring used by manufacturers”. Although it acknowledged that there was a list of permissible flavourings, TVWorks argued that this was “where the controls end” as the onus was on the manufacturer to adhere to best practice.

Authority's Determination

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

Standard 5 (accuracy)

[68]   The FGC argued that a number of statements in the programme were either misleading or inaccurate. The Authority deals with each allegation individually below.

Asthma Food Link

[68]   In paragraph [33] above, the complainant outlined various facts about the link between additives and asthma which it said should have been included in the programme. In the Authority’s view, the bulk of this information was not necessary for the broadcaster to meet the requirement for accuracy under Standard 5. The complainant has not outlined how the omission of that information would have caused viewers to be misled and, in the Authority’s view, the decision about whether to include this information was a matter of editorial discretion, not broadcasting standards.

[69]   However, the FGC provided statistics on one point, about the percentage of individuals whose asthma is triggered by food, that are in direct conflict with the following statement in the programme by Dr Debbie Fewtrell:

And probably the sulphites have to be number one in the danger list – they are associated with triggering asthma. In fact the World Health Authority has stated that they believe that 20 to 30 percent of asthmatics are triggered by sulphite preservatives.

[70]   According to the FGC, food is the trigger in approximately six to eight percent of asthmatic children and two percent of adults. In its response to the Authority’s request for information on this point, the broadcaster stated that Dr Fewtrell’s statement information came from a 1999 World Health Organisation report which said:

...the prevalence [to sulphite sensitivity] in asthmatic children was higher, approximately 20-30%, after double-blind challenges to both steroid-dependent and non-steroid-dependent asthmatic children.

[71]   The Authority considers that Dr Fewtrell was presented as an expert in her field, and her statement about sulphites triggering asthma was presented as a statement of fact. Because she did not state that the figures of 20 to 30 percent related only to children, the Authority finds that her statement was not an accurate reflection of the WHO report, and it would have misled viewers. Accordingly, the Authority upholds this part of the complaint as a breach of Standard 5.

Assertions in the programme in respect of MSG were misleading

[72]   The FGC complained that the following statement by Alison White in the programme was inaccurate:
[MSG] has been linked to brain damage in laboratory rats and for that reason Australia banned it in foods designed for young children. New Zealand has not done the same.

[73]   TVWorks provided comments from Alison White which are outlined in paragraph [61] above. The Authority notes that Ms White appears to have been referring to regulations which were in force before the joint Australia New Zealand Food Standards Code was implemented. The current Code² does not permit MSG to be added to infant formula or infant food, and it does not regulate “children’s food” as a distinct category. These rules are in force in both Australia and New Zealand.

[74]   Taking this information into account, the Authority finds that Ms White’s statement that MSG had been banned in food for young children in Australia, but not in New Zealand, was inaccurate. Accordingly it considers that Standard 5 was breached in this respect and it upholds this part of the complaint.

[75]   The FGC also outlined some additional information about MSG in paragraph [31] which it contended would have been “helpful” for viewers to know. In the Authority’s view, the omission of this information did not result in a misleading or inaccurate programme. The information put forward by the FGC was supplementary information which was not critical to viewers’ understanding of the issues being discussed. The Authority declines to uphold this part of the complaint.

Assertions in the programme in respect of aspartame were misleading

[76]   The complainant argued that the views of Alison White, who it described as a “vehement opponent of aspartame”, should have been questioned and countered. It argued that the programme should have included the information outlined in paragraph [29] above.

[77]   The Authority considers that the broadcaster was not required to include the additional information referred to by the FGC, as the programme would not have misled viewers about the safety of using aspartame in food. In the Authority’s view, the programme made it clear that, while there was controversy over the use of aspartame, the bulk of scientific research showed that aspartame was safe. Linda Buchtmann stated:

It would have to be one of the most tested food ingredients on our food shelves. There’s been more than 600 studies into aspartame, which have found no problems with it, and it’s something we’ve consumed for many years.

[78]   Further, Chris Wheeler’s comments about links between aspartame and vision problems and safety in pregnancy were clearly presented as his particular perspective. They were not presented as being the correct or only view. Further, Mr Wheeler was not presented as a scientific expert – in fact, he was introduced as an “Anti-aspartame activist” – and the narrator referred to opponents of aspartame making “extreme” claims. The Authority finds that viewers would not have been misled by his statements or by the programme’s other references to aspartame. It does not uphold this part of the complaint.

Showing Kellogg’s Nutri Grain as a cause of concern because cereals were “chemically rich”, without asking the manufacturer for comment

[79]   The Authority considers that this part of the complaint refers to the following statement by the narrator, which was accompanied by images of a family sitting down to breakfast:

Even our standard Kiwi breakfast is chemically rich. Our cereals, breads and drinks are full of artificial colours, sweeteners, preservatives and flavours. All of which independent experts say could be behind an explosion of modern illnesses.

[80]   The programme had earlier shown a Kellogg’s Nutri Grain package, and the top of the package was visible when the presenter made the above statement. However, in the Authority’s view, the narrator was making a general statement about breakfast foods; he was not specifically referring to one brand of cereal. The Authority considers that the broadcaster was not required to approach one particular manufacturer for comment, and it declines to uphold this part of the complaint.

Stating that the mixture of additives in food such as biscuits, yoghurt, and fruit bars could put the level above the recommended daily intake (RDI)

[81]   The programme’s narrator made the following statement:

Sherry is preparing the kids’ lunchboxes. And even though the fresh fruit and vegetables are additive-free, the combined amounts of preservatives in the biscuits, yoghurt, fruit bars and meat sticks could push her kids over the RDI.

[82]   The Authority notes that the complainant has not provided any information to support its assertion that the above statement was inaccurate. In these circumstances, the Authority has no reasonable basis upon which to conclude that the statement breached Standard 5. It declines to uphold this part of the complaint.

Stating that microbial health is compromised by the use of additives

[83]   Dr Peter Dingle stated in the programme:

Some [preservatives] are anti-microbial, and of course in your gut you've got literally trillions of bacteria that are feeding you, they're the little chefs of the stomach, you know, they're, I shouldn't say stomach, of your intestine, they're the chefs who are feeding all the nutrients to your gut wall and onto the blood, they're breaking down chemicals, they're doing all good actions.  And if you're eating lots of food with preservatives-slash-anti-microbials, what do you think it's going to do to your healthy gut?  It's going to twist it and turn it and add other, nasty bacteria, and some fungi, things like Candida that people would know, start to take over.  On that level, you know, you can see how it has a negative effect on the nutritional intake.

[84]   The Authority notes that the complainant has not provided any information to support its assertion that Dr Dingle’s statement was inaccurate. In these circumstances, the Authority has no reasonable basis upon which to conclude that the statement breached Standard 5. It declines to uphold this part of the complaint.

Reference to the fact that the industry does not state quantities of a particular additive in a food, but no reference to the fact that the Australia New Zealand Food Standards Code prescribes the levels at which additives must be used.

[85]   The programme included the following statement:

As long as it says "flavour" on the label, manufacturers do not have to disclose the quantity or combination of chemicals they've added to our food. 

[86]   The Authority asked TVWorks to comment on whether the programme should have included the information referred to by the complainant – that the Australia New Zealand Food Standards Code prescribes the levels at which additives must be used. The broadcaster argued that the above statement represented the reality of what is done in practice. The Authority agrees; the complainant has not provided any evidence that manufacturers disclose the quantity or combination of flavourings in food, only that they must adhere to the levels set by the Food Standards Code. Accordingly, the Authority finds that the statement was not inaccurate, and it declines to uphold this part of the complaint.

Statement that flavours are totally unregulated

[87]   The narrator stated in the introduction to the section on flavours:

Flavours are totally unregulated. As long as it says “flavour” on the label, manufacturers do not have to disclose the quantity or combination of chemicals they’ve added to our food.

[88]   In the Authority’s view, the first sentence was related to and qualified by the second sentence. It considers that viewers would have understood the first sentence to be referring to the fact that manufacturers did not have to disclose the quantity or combination of flavours used in food, but did have to disclose that a flavour was present. The Authority finds that the statement was not misleading or inaccurate in breach of Standard 5. 

Stating that manufacturers do not always include the additives that are included in a product, when the ANZFS Code requires that all additives must be included on the label or information be available if the product is unpackaged.

[89]   The Authority notes that the FGC did not refer to a specific statement in the programme which it contended was inaccurate. Having viewed the item and read a transcript, the Authority could not identify any statement that manufacturers do not always include the additives that are included in a product. The only potentially relevant statement was the narrator’s comment that:

…MSG is not always labelled by name. Often it only appears as a number, under a different name, or even as an undisclosed additive within a list of ingredients…

[90]   The Authority notes that Linda Buchtmann outlined the requirements in the Food Standards Code that “MSG must be labelled, however small the amount is in there, as MSG and its additive number as well”. The FGC has not provided any evidence to suggest that all manufacturers do comply with the rules, or that MSG is always labelled correctly. In these circumstances, the Authority considers that the presenter’s statement which suggested that some manufacturers did not comply with those regulations was not misleading or inaccurate. Accordingly, the Authority finds that the presenter’s statement did not breach Standard 5.

Dr Fewtrell’s statement that she told her clients to shop around the outside of the supermarket to find food, because in the middle of the supermarket was “food science”

[91]   The Authority considers that Dr Fewtrell’s comment that she told her clients to shop around the outside of the supermarket to find food, because in the middle of the supermarket was “food science”, was clearly her own opinion. It was not a statement of fact to which the accuracy standard applies. In these circumstances, the Authority declines to uphold this part of the complaint.

Stating that manufacturers would make “crap in a can, for as cheap as they can for as long as you will eat it”, that good food is additive-free, and that manufacturers are only motivated by financial pressure.

[92]   Angus Allan from Naked Organics made the following comments in the programme which the FGC complained were inaccurate:

 “They’ll sell you crap in a can, for as cheap as they can as long as you’ll eat it and until you start complaining about it they won’t do anything.”

“We don’t use additives, flavourings, nothing. If you buy good ingredients you shouldn’t need additives… Having nothing added to food is the best way to eat it.”

“At the end of the day, the only way that companies are socially responsible is if the market that they’re selling to pressures them into being socially responsible.”

[93]   In the Authority’s view, these statements were Mr Allan’s genuine opinion about the quality of some food produced in New Zealand, and whether manufacturers would change. He was not purporting to make statements of fact to which the accuracy standard would apply, and this would have been clear to viewers. Accordingly, the Authority finds that Standard 5 did not apply and it does not uphold this part of the complaint.

Stating that using additives saves the food industry millions of dollars, so there is no need for it to change.

[94]   The complainant argued that it was inaccurate and “cast serious aspersions on the industry” to imply that companies would only be socially responsible if the market forced them to be. The Authority notes that the narrator stated:

The substitution of fresh ingredients with cheaper additives saves the food industry millions of dollars. So without tighter regulation, manufacturers have no impetus to change.

[95]   The Authority considers that this was not a statement of fact to which the accuracy standard applies. Viewers would have understood it to be editorial opinion that money was the prime motivating factor for manufacturers. The Authority finds that Standard 5 did not apply to the comment, and it declines to uphold this part of the complaint.

Stating that there was a “spill over” effect with additives and that a significant proportion of the population cannot cope with this overload. There was no scientific basis for this statement.

[96]   The Authority notes that the programme contained the following statements which are relevant to this part of the complaint:

Dr Fewtrell:          Nobody can tell us what’s going to happen to people that are eating
                           large amounts of additives now… how are they going to be in 20 to 30
                           years time… because it’s impossible to have done the studies.

Jenny Barlass:    If you imagine your body like a bucket, you have a tap that’s dripping
                          into it, and it drips constantly into that bucket, eventually that bucket’s
                          going to overflow. Now they may not have had many symptoms as a
                          child, but by the time they get to an adult, the spill-over effect of that
                          constant barrage is going to start to show some quite nasty symptoms.

Dr Fewtrell:        We haven’t changed, our genes, our detoxification systems take
                         many many thousands of years to change, so we’re in an overload
                         situation where a significant proportion of the population just can’t
                         tolerate this degree of insult.

[97]   The Authority considers that the above statements were presented as the opinions of Dr Fewtrell and Jenny Barlass, a naturopath. The interviewees did not purport to be basing their comments on science or research, but were presenting their own views about how the accumulation of additives might affect the human body. The Authority finds that the accuracy standard did not apply to these statements, and it does not uphold this part of the complaint.

Standard 4 (balance)

[98]   Standard 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed. The programme complained about looked at the safety of certain additives which are used in New Zealand food. In the Authority’s view, this was a controversial issue of public importance to which the balance standard applied.

Omission of Information

[99]   In order to meet the requirement for balance, the complainant argued that the following information should have been included in the programme:

• Food additives are a very minor contributor to the adverse health effects suffered by a small sector of the population.
• The programme failed to address the fact that the participants in the programme, who had experienced adverse effects, would have an intolerance or sensitivity to the chemical in question. They would react to that chemical whether it was in the form of an artificial additive or in a natural ingredient.
• Some of the research linking additives to adverse reactions, particularly hyperactivity, was subjective.
• There were many other causes of behavioural problems.

[100]   With respect to the first bullet point, the Authority notes that Linda Buchtmann discussed the fact that food additives were not a major health risk. She stated:

Consumers could eat a huge amount of additive-rich food over a lifetime and never have any...problems with making themselves ill from that. Remember, they’re a tiny part of the food, over a lifetime you’re never going to get to dangerous levels with them...

[101]   While the information in the second bullet point relating to people’s reactions to certain chemicals was relevant to the discussion, it was not, in the Authority’s view, a significant perspective which was required to provide balance. Further, the Authority considers that most viewers would be aware that individuals who reacted to a particular chemical in food would also experience sensitivity to that chemical in other forms.

[102]   Similarly, the Authority considers that it would have been obvious to viewers that some of the research linking additives to hyperactivity was subjective, and that there were many other causes of behavioural problems. The experiment shown on the programme where children ate food from two different groups was clearly not a scientific experiment. Further, the lack of scientific evidence linking additives and hyperactivity was referred to in the programme by Professor Ray Winger, who said:

There are a group of people, particularly ADHD children, who seem to react to some of these particular colours, tartrazine being one. But generally the reactions aren’t there, they cannot, it’s just not been shown by science.

[103]   For the reasons outlined above, the Authority considers that the information outlined in paragraph [68] was not required in order for TVWorks to meet the requirement for balance in Standard 4.

[104]   The FGC also complained that the programme contained misleading assertions with respect to aspartame, MSG, and sulphites, and it argued that the information outlined in [29], [31] and [33] should have been included in the programme to balance those assertions. The Authority has dealt with these matters above in its consideration of Standard 5 (accuracy). However, for the record, it considers that the decision about whether to include most of this information was a matter of editorial discretion, not broadcasting standards.

[105]   While it may have been appropriate to include the additional information provided by the FGC in a programme that focused solely on one of these additives, in the context of a general discussion about food additives in a documentary this information was not required to provide balance.

[106]   Accordingly, the Authority declines to uphold this part of the complaint that Standard 4 (balance) was breached.

Insufficient time given to “pro-additive” interviewees

[107]   The complainant also argued that the “pro-additive” speakers and scientific experts were allocated only two to three minutes out of the 40 minute programme to put forward their views. The Authority has said in previous decisions (e.g. Decision No. 2007-042) that balance is not achieved by the “stopwatch”, meaning that the time given to each competing party does not have to be mathematically balanced. Further, it notes that the anti-additive perspective was not allocated the remaining time; much of the programme consisted of narration and case studies.

[108]   Overall, the Authority finds that Lydia Buchtmann and Professor Ray Winger, who were the “pro-additive” speakers, were given the opportunity to address each of the issues raised in the programme. The programme made it very clear to viewers that different perspectives existed on the issue of whether certain additives were safe.

[109]   Accordingly, the Authority considers that the broadcaster gave reasonable opportunities to present significant perspectives on the controversial issue under discussion. It declines to uphold the balance complaint.

Standard 6 (fairness)

[110]   The complainant did not specify in its complaint who it alleged was treated unfairly by the broadcast. TVWorks assumed that the FGC regarded the programme as being unfair to the suppliers and manufacturers of processed food whom it represented. The Authority agrees that the suppliers and manufacturers of processed foods were referred to in the programme, and therefore Standard 6 applies.

[111]   In the Authority’s view, the suppliers and manufacturers of processed foods were treated justly and fairly by the broadcaster. The programme included comments from experts who supported the use of additives and preservatives in food, and they clearly outlined their arguments in favour of that practice. Further, the programme stated that local big-brand manufacturers had been offered an opportunity to appear in the programme, but had declined to participate. In these circumstances, the Authority finds that Standard 6 was not breached. It does not uphold the fairness complaint.

Bill of Rights

[112]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination. The  Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of What’s Really in Our Food on 13 September 2007 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[113]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to impose an order on this occasion. Two aspects of the broadcast were upheld as being inaccurate, but in the context of the item, the Authority is of the view that the breaches were not significant. The Authority considers that the publication of its decision is sufficient on this occasion.

Signed for and on behalf of the Authority

Joanne Morris
Chair
26 May 2008

Appendix

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

1.            The New Zealand Food and Grocery Council’s formal complaint – 19 September 2007
2.           TVWorks’ decision on the formal complaint – 26 October 2007
3.           The New Zealand Food and Grocery Council’s referral to the Authority – 19 November 2007
4.           TVWorks’ response to the Authority – 22 December 2007
5.           TVWorks’ response to the Authority’s request for further information – 14 March 2008
6.           The New Zealand Food and Grocery Council’s response to the Authority’s request for further
              information – 14 March 2008
7.           Further information from the New Zealand Food and Grocery Council – 11 April 2008
8.           Further information from TVWorks – 30 April 2008

¹World Health Organisation – Fifty-first meeting of the Joint FAO/WHO Expert Committee on Food Additives. Safety Evaluation of sulfur dioxide and sulfites and addendum, Geneva: World Health Organisation, 1999 (http://www.inchem.org/documents/jecfa/jecmono/v042je06.htm)

²http://www.foodstandards.govt.nz/thecode/foodstandardscode.cfm