BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Target – product check on sunscreens – noted that there is no standard for sunscreens in New Zealand – said only two of the five trial products advertised that they complied with the Australian standard – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – item did not discuss a controversial issue of public importance – balance standard did not apply – not upheld

Standard 5 (accuracy) – did not imply that products which did not comply with the Australian standard for sunscreens were inferior – not inaccurate – not upheld

Standard 6 (fairness) – not unfair to compare products for consumer information – clearly based on a family’s opinion – not upheld

This headnote does not form part of the decision.

Broadcast

[1] An episode of Target, a consumer affairs programme, was broadcast on TV3 at 7.30pm on 11 July 2006. The “Product Check” part of the episode focused on sunscreens, and the programme said it would compare the SPF30 sunscreen of five different brands – Nivea, Signature Range, Cancer Society, Sun Science and Piz Buin. The reporter said that a family of six was going to

…help us check which of the sunscreen products you can trust and which of them is nicest and cheapest to use.

[2] Target said that, while every sunscreen had an SPF factor displayed, consumers could not rely on these to be accurate. It noted that, in Australia, sunscreens were classified as “therapeutic” products which meant that they had to be tested on humans prior to sale. In New Zealand, it said, sunscreen was a “cosmetic” product which meant that it could be sold “without any rigorous testing”. The reporter made the following comment:

It is amazing. We live in a country with one of the highest skin cancer mortality rates in the world, yet no-one controls the effectiveness of our sunscreens.

[3] The programme said that it had asked the Ministry of Health how consumers could be sure that sunscreens purporting to be SPF30 in New Zealand were actually SPF30. The Ministry had recommended checking the label for a claim that it complied with the Australian and New Zealand standard AS/NZS 2604:1998, or a hint that it was also sold in Australia.

[4] Target noted that only two of the five test brands “advertised they comply with the standard”, and these were the Cancer Society and Signature Range products. The programme then reported what the family of six thought about the smell, texture and absorption of each product. It showed a table comparing the results for each sunscreen under the headings of price, standard, texture and scent.

Complaint

[5] The Cosmetic, Toiletry & Fragrance Association (CTFA) made a formal complaint to CanWest TVWorks Ltd, the broadcaster, that the programme lacked balance, fairness and accuracy. It submitted that CanWest should have approached the CTFA for comment to ensure that “the balancing views of the New Zealand industry were also available to consumers”.

[6] In addition, the CTFA contended that the programme implied that products which were not made in accordance with the Australian and New Zealand standard were inferior. It said that this was not true, given that this standard only provided for SPF measurement of UVB, not UVA. It noted that international measurements used in the United States and the European Union required both to be measured to demonstrate the SPF (broad spectrum), and the CTFA contended that this offered far greater protection to consumers than products only meeting the Australian and New Zealand standard. Using a higher SPF broad spectrum product would give the average consumer better protection than an SPF30 made to the Australian and New Zealand standard, it said.

[7] The CTFA maintained that the programme had presented an unfair comparison between the endorsed product and the others that were available, and had been inaccurate by omitting certain key facts.

Standards

[8] The CTFA nominated Standards 4, 5, and 6 of the Free-to-Air Television Code of Broadcasting Practice in its complaint. They 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

[9] CanWest stated that the issue of whether or not a sunscreen labelling showed information on adherence to the Australian and New Zealand standard for sunscreens was not a controversial issue of public importance. Therefore it considered that Standard 4 (balance) had no application.

[10] Looking at Standard 5 (accuracy), the broadcaster said that the point of the Target comparison was to see which products advertised that they complied with the standard. The programme did not check whether or not they actually did comply with the standard, it said, and it did not imply that advertising compliance was a requirement of the standard. It declined to uphold the accuracy complaint.

[11] As for Standard 6 (fairness), CanWest said that the Target team had decided on the criteria to be used in assessing the products. It had found that the easiest way for consumers to judge whether a product was indeed a certain SPF rating was to look for the standard information on its label. The broadcaster noted that this method had been recommended by the Ministry of Health.

[12] The broadcaster contended that each product had been judged in the same way, and none of the manufacturers had been approached for comment. It maintained that the programme did not imply that products which did not comply with the Australian and New Zealand standard (but met some other international standard) were inferior. CanWest said that it was clear in the programme that the reason products weren’t “given a tick” was solely because their labels did not have that specific information on it. It did not uphold the fairness complaint.

Referral to the Authority

[13] Dissatisfied with the broadcaster’s decision, the CTFA referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. It added nothing further to the points made in its original complaint.

Broadcaster's Response to the Authority

[14] CanWest provided an article from the Herald on Sunday which said that the Cancer Society

…warns that many overseas sunscreens don’t meet requirements here because they are designed for northern hemisphere conditions.

…It tells consumers to buy only a sunscreen rated at least SPF 30+ to ensure protection against UVB rays. The sunscreen should be broad spectrum to protect against UVA rays. And be sure to look for the mark AS/NZS2604 which means the product meets the Australia New Zealand sunscreen standards.

David Russell of the Consumers’ Institute said consumers would be wise to use sunscreens that met these standards.

[15] CanWest commented that it was interesting that the Cancer Society and the Consumers’ Institute made “the same point about the [Australian and New Zealand] standard compliance that was made in the programme”.

Complainant's Final Comment

[16] The CTFA disagreed with the point made by the Cancer Society that products which met the Australian and New Zealand standard were safer. Most other products met international standards, it said, and would “blow the requirements of the Joint Standard AS/NZ 2604 standard away”.

Authority's Determination

[17] 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 4 (balance)

[18] Standard 4 requires that balance be provided when controversial issues of public importance are discussed. The Authority agrees with CanWest that the Target item complained about did not discuss such an issue. The segment reported a family’s rating of five sunscreen brands based on price, texture and scent, and it noted that a simple way for the average consumer to ensure that “the SPF30 they buy is really SPF30” was to see whether it advertised compliance with the Australian and New Zealand standard. Contrary to the complainant’s view, the programme did not purport to be a discussion about the lack of sunscreen regulations in New Zealand which would have required “the balancing views of the New Zealand industry”. That subject was merely raised incidentally in the course of discussing how consumers could check the SPF rating of sunscreens in this country. Accordingly, the Authority concludes that the balance standard does not apply and it declines to uphold this part of the complaint.

Standard 5 (accuracy)

[19] The CTFA complained that the programme inaccurately implied that products that did not meet the Australian and New Zealand standard were inferior. It said that most other sunscreens complied with international and EU requirements which were actually more rigorous.

[20] The Authority disagrees that the programme would have left this impression with viewers. The item noted that, unlike in Australia, “any sunscreen could be sold without rigorous testing” in New Zealand. The presenter said:

We asked the Ministry of Health how New Zealand consumers can be sure that the SPF30 they buy is really SPF30. They recommend checking the label of a sunscreen for a claim that it complies with the standard, or a hint that the product is sold in Australia.

[21] The programme advised consumers that looking for compliance with the Australian and New Zealand standard was an easy way to check that the SPF rating of a sunscreen was accurate. In the Authority’s view, it did not imply that products that did not comply with that standard were inferior, as it made no statements about the effectiveness of the products. The programme simply stated that if the products advertised that they complied with the standard, consumers could be sure that their SPF rating was correct.

[22] Accordingly, the Authority finds that the programme was not misleading or inaccurate and it declines to uphold the Standard 5 complaint.

Standard 6 (fairness)

[23] The CTFA argued that the programme presented an unfair comparison between the endorsed product and the other products which were tested on Target. The complainant did not nominate a “person or organisation taking part or referred to” in the programme which it alleged was treated unfairly. However, the Authority considers that it is implicit in the complaint that the CTFA was complaining the broadcaster treated the brand owners of those products unfairly.

[24] Target is a consumer advocacy programme which provides practical advice to consumers about products and service providers. The Authority considers that the broadcaster was entitled to present a comparison between a number of sunscreens, and the results were clearly presented as being the opinion of one family who had trialled the products. The complainant has not provided the Authority with any information to suggest that the products were not treated equally, or that the results were presented incorrectly. Accordingly, the Authority finds nothing unfair in the presentation of the programme which would lead to a breach of Standard 6 (fairness).

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 December 2006

Appendix

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

1  The Cosmetic, Toiletry & Fragrance Association’s formal complaint – 3 August 2006

2  CanWest’s decision on the formal complaint –

3  The Cosmetic, Toiletry & Fragrance Association’s referral to the Authority – 22 September 2006

5  Further information provided by the broadcaster – 14 November 2006

6  The Cosmetic, Toiletry & Fragrance Association’s final comment – 17 November 2006