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 was no standard for sunscreens in New Zealand – said only two of the five trial products advertised that they complied with the Australian standard – also stated that the recommended product was “tested to the official standard” – allegedly inaccurate, unfair and in breach of programme information standard

Findings
Standard 5 (accuracy) – some ambiguity later in segment but, overall, viewers would not have been misled about the focus of the segment – not inaccurate or misleading – not upheld

Standard 6 (fairness) – broadcaster not required to give complainant an opportunity to comment because item did not comment on effectiveness of product – not upheld

Standard 8 (programme information) – subsumed under Standard 5

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 Australia 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. The presenter said:

Overall as a family sunscreen we would recommend the Cancer Society product. It’s tested to the official standard, was our testers’ favourite and comes at a comparatively low price.

Complaint

[5] Beiersdorf Australia Ltd, the brand owners of Nivea, made a formal complaint about the item to CanWest TVWorks Ltd, the broadcaster. It argued that the programme had breached standards of accuracy, fairness and programme information.

[6] Beiersdorf referred to the table of results which contained a cross for Nivea sunscreen under the “Standard” heading. It noted the reporter’s comment that the recommended product was “tested to the official standard”. The complainant said that, from the script and the graphics, viewers would have been left with the impression that the Nivea sunscreen did not comply with the Australia and New Zealand performance standard on sunscreens.

[7] The complainant maintained that this impression was inaccurate and a serious error. It said that the Nivea product was sold both in Australia and New Zealand, and complied with the standard. Beiersdorf stated that the programme had made a representation to the effect that the product did not meet the standard on the basis that the label did not explicitly state that it did. This was a serious misunderstanding, it wrote, as there was no requirement for a sunscreen to expressly state that it complied.

[8] In the complainant’s view, it would not have taken excessive research to determine whether the sunscreens actually complied with the standard. It described the programme as “entirely deceitful, or at best, outright lazy in its approach”.

[9] Referring to Standard 5 (accuracy) and guideline 5e (reliability of information sources), Beiersdorf contended that the programme was “wholly inaccurate as it had misunderstood the nature of standards compliance”. It said that Target had incorrectly assumed that a lack of an explicit declaration of compliance automatically meant that the product was not in compliance.

[10] With respect to Standard 6 (fairness), the complainant argued that it had been treated unfairly because it was offered no opportunity to comment on the claims made in the item.

[11] Turning to Standard 8 (programme information), Beiersdorf maintained that the programme had deceived viewers. It had presented as a fact that only two of the five products tested complied with the standard, the complainant said, when this was not true. Further, it added that guideline 8e had been breached because the programme, in dealing with the Nivea sunscreen, had misled and deceived consumers about its “non-compliance” through the graphics and voiceovers.

Standards

[12] The complainant nominated the following Standards and guidelines from the Free-to-Air Television Code of Broadcasting Practice: 

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.

Guideline 5e   

Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

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.

Standard 8 Programme Information

Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.

Guideline 8e   

Programmes dealing with products or services shall not by implication, omission, ambiguity, or exaggerated claim, mislead or deceive viewers.

Broadcaster's Response to the Complainant

[13] CanWest said that Target’s list of requirements in the product test was to show easy ways that the average consumer could check that a product did what it was required to do. Testing products at a laboratory was not, it said, a method that was available to general consumers of a product. CanWest noted that the presenter had made the following comment in respect of product compliance:

Of our test products only these two products advertised they comply with the standard.

[14] The Target programme, it wrote, did not check whether in fact the products did meet the Australia and New Zealand standard, only whether they advertised compliance. CanWest said this was a simple check that could be done by consumers. While the complainant’s product may have met the standard, it said, as stated in the programme it did not advertise or state this in its packaging. It found that Standard 5 (accuracy) was not breached.

[15] CanWest found that the segment had not dealt with any of the participants unfairly, and it did not uphold the Standard 6 (fairness) complaint. It said that the Target team had decided on the criteria to be used in assessing the products. The easiest way for consumers to judge whether a sunscreen complied with its advertised SPF rating was to look for the Australia and New Zealand standard information on the package, CanWest said, and this method was recommended by the Ministry of Health.

[16] The broadcaster noted that each product had been judged in the same manner, and none of the manufacturers had been approached for comment. It said:

The Target segment did not infer or state that the products did not comply with the Australian/NZ standard or that the products were inferior if they did not adhere to the Australian standard (but met some other international or standard measurement). The point of the trial was solely whether or not the information was displayed on the packaging. There was no inference that this information was required to meet the standard, simply that the Ministry of Health advised that it would be an easy way for the consumer to guarantee that the product that they were using was fit for purpose.

[17] The broadcaster also found that Standard 8 (programme information) and guideline 8e were not breached. The product was judged not to have the Australia and New Zealand standard information on the packaging, it wrote, and there was no inference that this information was required to meet the standard.

Referral to the Authority

[18] Dissatisfied with the broadcaster’s decision, Beiersdorf referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. It reiterated its view that the programme breached Standards 5, 6 and 8.

Broadcaster’s Response to the Authority

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

…to 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.

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

Complainant’s Final Comment

[21] Responding to CanWest’s comment, Beiersdorf submitted that the broadcaster had missed the point of its complaint. It pointed out that the Cancer Society was not a regulatory body, but was itself a participant in the sunscreen market. It was in the society’s self-interest to tell consumers to “look for the mark”, it said, and there could be an inherent conflict between commercial interests and the society’s message to consumers.

[22] In the complainant’s view, the key issue was that CanWest had implied that having the standards mark was a minimum regulatory requirement, when this was not true. Its Nivea sunscreen met the standard, Beiersdorf wrote, and there was no legal requirement for the sunscreen to carry the mark. Despite this, CanWest had “blatantly led consumers to believe otherwise”.

[23] The complainant reiterated its view that, if CanWest had a genuine interest in consumer safety, Target would have looked at whether the products actually complied with the standard, not simply whether or not they carried the mark. 

Authority's Determination

[24] 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)

[25] Beiersdorf complained that the programme inaccurately implied that Nivea sunscreen did not comply with the Australia and New Zealand standard. It specifically noted the table of results showing a cross for the Nivea brand under the “Standard” heading, which was accompanied by the reporter’s comment that the recommended sunscreen was “tested to the official standard”.

[26] In the Authority’s view, Target made it clear at the outset that it was not investigating which of the sunscreens actually complied with the standard. Rather, it was checking which of the products advertised on their packaging that they complied with the standard. As the programme said, this was a simple way for the average consumer to ensure that “the SPF30 they buy is really SPF30”.

[27] The Authority acknowledges the complainant’s argument that the combination of the graphics and the reference to the recommended sunscreen as being “tested” to the official standard may have misled some viewers who only saw the end of the segment. However, in determining whether there has been a breach of the accuracy standard, the Authority’s task is to review the item complained about in its entirety.

[28] Accordingly, despite some ambiguity surrounding the script and graphics later in the segment, the Authority considers that the clear introduction to the item would have left viewers in no doubt that Target was not investigating which of the sunscreens complied with the standard. It does not agree with the complainant that viewers would have inferred that the Nivea product did not comply with the standard. Rather, they would have been left with the message that the Nivea product did not advertise compliance on its packaging.

[29] Therefore, the Authority declines to uphold the accuracy complaint.

Standard 6 (fairness)

[30] Beiersdorf complained that, as the brand owner of Nivea, the company was treated unfairly because it was not offered an opportunity to comment on the results of the product check. Standard 6 requires broadcasters to deal justly and fairly with persons or organisations that are “taking part or referred to” in a programme. In this case, the Authority agrees that Beiersdorf was “referred to” in the programme by virtue of the fact that it owns the brand rights to one of the featured products.

[31] However, the Authority does not agree that the broadcaster was required to offer the complainant an opportunity to respond. The programme did not make any statements about the effectiveness of Beiersdorf’s product, nor did it state that the Nivea product did not comply with the Australia and New Zealand standard on sunscreens. Rather, it simply observed that the Nivea brand did not advertise compliance on its packaging. In the Authority’s view, this factual observation did not require any comment from the complainant, and it finds that Beiersdorf was not treated unfairly by the broadcaster in this respect.

[32] Accordingly, it finds that Standard 6 was not breached.

Standard 8 (programme information)

[33] The complainant’s argument under Standard 8 was that viewers would have been left with the misleading impression that the Nivea product did not comply with the Australia and New Zealand standard on sunscreens. The Authority considers that this complaint has already been appropriately dealt with under the accuracy standard, and it therefore subsumes this part of the complaint into its consideration of Standard 5.

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    Beiersdorf Australia Ltd’s formal complaint – 7 August 2006

2    CanWest’s decision on the formal complaint – 1 September 2006

3    Beiersdorf Australia Ltd’s referral to the Authority – 27 September 2006

4    CanWest’s response to the Authority – 3 November 2006

5    Further information provided by CanWest – 14 November 2006

6    Beiersdorf Australia Ltd’s final comment – 21 November 2006