BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The apparent drift of spray during aerial chemical spraying was dealt with in an item on

60 Minutes broadcast by TV One between 7.30–8.30pm on 17 March 1996. It was

alleged that drifting spray caused damage to plants on neighbouring properties and

could cause damage to health. The item focussed on the use of the spray 2,4-D ester. It

is a spray manufactured by DowElanco (NZ) Ltd.

DowElanco complained to Television New Zealand Ltd that the item was unbalanced

and would cause unnecessary alarm. The programme breached the standards, it said, as

the company's representations were only a small part of the programme and the item

implied both that the chemical was insufficiently controlled officially, and that the

company did not care about drift.

Arguing that stopwatch techniques were inappropriate in determining balance, TVNZ

maintained that the report had told of one person's story, and that the issues had been

discussed fairly in view of the evidence it had gathered. Dissatisfied with TVNZ's

response, DowElanco referred the complaint to the Broadcasting Standards Authority

under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, a majority of the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed the item complained about and have read the

correspondence (summarised in the Appendix). As is its practice, the Authority

determines the complaint without a formal hearing.

The possible damage to both plants and people's health as a result of spray drift was

examined in an item on 60 Minutes. It focussed on the concerns expressed by Mr

Lawrence Newman and his neighbours in Waiotira and included comments from Dr

Jarman, the local Medical Officer of Health. Dr Jarman said that small amounts of the

spray 2,4-D had been found in the drinking water of homes in the area 14 days after the

alleged drift.

On behalf of DowElanco, the manufacturers of 2,4-D, Mr R W Moffat complained to

TVNZ that the item was unbalanced and would cause unnecessary alarm. The

imbalance had occurred, he wrote, as about 80% of the comments contained in the item

came from people opposed to the use of agrichemicals, and he expressed particular

concern about the reporter's remark: "Drink enough of it and you'll die a horrible

death". He pointed out that that 2,4-D was not sold for drinking purposes and that

death was the probable result if a large amount of any chemical was drunk.

Contrary to the impression given in the item, Mr Moffat explained that the company,

although not legally responsible, took the issue of spray drift seriously. Further, 2,4-D

was "light years" away from the defoliant used in Vietnam which was referred to in the

item and, he concluded:

DowElanco has been the target of these types of "documentaries" in the past and

takes the view that is part of being associated with chemicals but we believe this

"60 Minutes" programme was even worse than usual in frightening and causing

undue concerns to viewers.

TVNZ assessed the complaint under the standards nominated by DowElanco. Standard

G6 requires broadcasters:

G6  To show balance, impartiality and fairness in dealing with political matters,

current affairs and all questions of a controversial nature.

The others provide:

G16 News, current affairs and documentaries should not be presented in such a

way as to cause unnecessary alarm or distress.

G17 Unnecessary intrusion in the grief and distress of victims and their families

or friends must be avoided. Funeral coverage should reflect sensitivity and

understanding for the feelings and privacy of the bereaved.

G20 No set formula can be advanced for the allocation of time to interested

parties on controversial public issues. Broadcasters should aim to present

all significant sides in as fair a way as possible, and this can be done only

by judging every case on its merits.

G21 Significant errors of fact should be corrected at the earliest opportunity.

Explaining that the item dealt with the problem of off-target spray drift and, in

particular, the drift of the herbicide 2,4-D, TVNZ pointed out that it had approached

DowElanco for comment as the manufacturer of the product. It also pointed out that the

item had focussed on the story of one man, and was not a study of 2,4-D in itself. The

man featured, Mr Newman, considered that the drifting spray had affected both his

health and his plants. His complaints had been investigated by Dr Jarman and the

Northland Regional Council, and they supported the contentions that the spray drift had

damaged plants and was found in some drinking water in Waiotira some two weeks

after the alleged drift. Further, a member of the Pesticides Board was interviewed, and

she said that she had sought a ban on the use of 2,4-D.

TVNZ maintained that balance was not achieved with the use of stopwatch journalism,

writing:

Balance is achieved when an issue is accurately and thoroughly explored giving

due weight to the various opinions of those involved. It is the purpose of G6, we

believe, to ensure that balance and fairness is achieved from the viewer's

perspective – so that by the end of the programme the viewer has had all the

relevant questions raised by the issue explained and answered in a balanced

fashion.

Acknowledging that DowElanco would have objected to some of the item's content in

view of the questions raised, TVNZ argued nevertheless that 60 Minutes' job was to

report on the issue in a fair and balanced way. It emphasised that the balance required

DowElanco's comments and they had been included, recording in its response to

DowElanco:

It seems to TVNZ's Complaints Committee that "60 Minutes" gave you the right

of reply to all of the issues and allegations made in the programme that directly

affected DowElanco. It was done fairly and impartially – and provided that

balance which the programme was seeking for the viewer.

Describing the comment about death resulting from drinking large quantities of 2,4-D as

"a simple statement of fact", and maintaining that the Pesticides Board was conducting

an "informal" review, TVNZ denied that any of the standards had been contravened.

When he referred DowElanco's complaint to the Authority, Mr Moffat persisted in the

complaint that the nominated standards had been contravened. He described the

comment about death from drinking 2,4-D as "unbelievable" and said that it indicated a

lack of emotional responsibility on TVNZ's behalf. Acknowledging that the company

had been the subject of other reports, Mr Moffat stated that the views on this occasion

were those advanced by extremist groups and, consequently:

... we do have a problem when a "documentary" programme puts the situation out

of perspective and obviously supports allegations that are not backed up by sound

peer reviewed science.

In its report to the Authority, TVNZ insisted that the standards had not been breached

and, furthermore, pointed out that the company's comments were summarised and

reported in the correspondence section of the following week's edition of 60 Minutes.

The Authority's Findings

The Authority considers that its first task is to decide on the item's theme. It is of the

view that the theme was concerned with explaining the possible untoward effects of not

using 2,4-D properly.

Although the item explained that 2,4-D was a herbicide which was used on this

occasion for controlling weed growth on pasture, it did not include any comments from

the farmer and/or the person responsible for the spraying. Such observations would

have provided what the Authority regards as useful and relevant background

information.

While the item focussed on the concerns of one man, the Authority observes that the

commentary's emotive questions about the carcinogenic properties of 2,4-D were

responded to, and indeed leavened, by the Medical Officer of Health. Moreover, the

complainant company was asked about and explained, and indeed minimised, the

potential dangers of 2,4-D.

DowElanco complained about the comment that death would follow should large

quantities of 2,4-D be drunk. In response, TVNZ said it was factually correct.

The Authority believes that the statement was not only meaningless, it was also

irresponsible. However, as it was a passing observation which did not apply directly to

the situation being investigated, the Authority does not consider that, in itself, it

contravened the standards. It is an issue taken into account, however, when the

Authority assessed the item's balance overall.

As noted above, the item examined the consequences of using a herbicide incorrectly. It

noted that there were undoubtedly dangers in this situation to neighbouring plants

because of spray drift and raised the possibility of effects on health. Some of the

potential dangers might result from involuntary ingestion, it said. (The item did not deal

with drinking the substance voluntarily.) The concerns expressed about spray drift

were shared by some authorities.

By discussing the potential problems of spray drift, the broadcast, in the Authority's

opinion, dealt with a matter of public interest. Mr Newman's articulate concerns were

put into a realistic context by the Medical Officer of Health. Further, while some

concern among environmentalists was noted - particularly when 2,4-D was related to

such material as "Agent Orange" - the central issues raised were put to DowElanco's Mr

Moffat who was given an opportunity to respond.

One member of the Pesticides Board was interviewed and expressed concern about

what she regarded as the inadequacy of the official controls and her concerns provided

valid grounds for the item to question the adequacy of the controls. In view of the

explanation of the scope of the controls exercised by the Pesticides Board, the Authority

does not accept the complaint that the item implied that use of 2,4-D was subject to

insufficient regulatory controls. Moreover, in view of Mr Moffat's comments, the

Authority does not agree with the aspect of the complaint which alleged that the

complainant company did not care about spray drift.

It could be said that much of the item, as the complainant highlighted, put the case for

the prosecution. DowElanco argued that the item was unbalanced both in its approach

to the issue overall, and because it was given an inadequate share of the total item in

which to advance the case for the defence. TVNZ contended that stopwatch journalism

was an inappropriate measure for balance. The Authority agrees with the sentiment

contained in TVNZ's response. A few pithy comments can often demolish a lengthy

but loquacious argument.

However, the Authority is divided as to whether balance was achieved on this occasion.

The majority considers that Mr Moffat, the company spokesperson, was given an ample

and sufficient opportunity to deal with each of the points raised. It does not accept that

standard G6 was transgressed on this point.

The minority of the Authority considers that the requirements in standard G6 were

breached. Noting that it is not a matter of the division of time, the minority considers

nevertheless that the prosecution case was put in such an overwhelming way that the

comments in defence were insufficient to comply with the standard's requirement for

balance, fairness and impartiality.

Despite the disagreement on this specific point, the Authority does not consider that the

programme, overall, breached the requirements in standards G16, G17, G20 and G21.

For the above reasons, a majority of the Authority declines to uphold the

complaint that the broadcast of "Chemical Trespass" by Television New

Zealand Limited on 60 Minutes on 17 March 1996 breached standard G6

of the Television Code of Broadcasting Practice.

It unanimously declines to uphold the other aspects of the complaint.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
27 June 1996

Appendix

DowElanco (NZ) Ltd's Complaint to Television New Zealand Ltd - 29

March 1996.

On behalf of DowElanco (NZ) Ltd, R W Moffat complained to Television New Zealand

Ltd about an item entitled "Chemical Trespass" broadcast on 60 Minutes between 7.30 -

8.30pm on Sunday 17 March 1996. The item, he noted, dealt with the problem with

off target spray drift and, in particular, the use of 2,4-D ester. DowElanco as the

manufacturer of the herbicide had provided comment for the programme.

Mr Moffat complained that the item lacked balance, and was in breach of standard G6,

and caused unnecessary alarm in contravention of standard G16. The company

accepted the broadcaster's right to edit material but maintained that the company's

representative had been treated unfairly. Further, although its complaint referred only to

the comments broadcast, it argued that the inferences complained about were strongly

supported by the background film and music used.

With regard to balance, the company pointed to the fact that almost 80% of the

comments presented were made by people opposed to agrichemicals. That matter, it

wrote, was not an impartial presentation of views. The complaint focussed specifically

on the comment "Drink enough of it, and you'll die a horrible death." After observing

that 2,4-D was not sold for drinking purposes and that a similar reaction was likely if a

large amount of any chemical was drunk, the company described the comment as going

"well beyond the limits of objectivity."

The company also objected to the inference that it did not care about spray drift. While

it was not "legally responsible", it was an issue which was treated seriously. In

addition, it objected to the inference in the comment about registration that there was a

complete lack of control over the product. On the contrary, it recorded, the registration

board had links with agencies in other countries, and changes could be required should

environmental problems arise. However, over the years there had never been a problem

with 2,4-D when used properly.

As for the complaint alleging that the item caused unnecessary alarm, the company

referred first to the comment about drinking the chemical. It also said that use of 2,4-D

in Vietnam was "light years" away from the use of it for agriculture purposes in New

Zealand. It was incorrect to suggest that 2,4-D was responsible for the abnormal

foetuses shown. Further it was irresponsible to use the speculative material in Dr

Sharp's work on the use of the chemical overseas.

These matters were also breaches of standards G17, G20 and G21 and, the company

concluded:

DowElanco has been the target of these types of "documentaries" in the past and

takes the view that is part of being associated with chemicals but we believe this

"60 Minutes" programme was even worse than usual in frightening and causing

undue concerns to viewers.

TVNZ's Response to the Formal Complaint - 19 April 1995

Assessing the complaint under the nominated standards, TVNZ described the item in the

following way:

The piece was subtitled "Chemical Trespass" and examined the phenomenon of

drift during aerial chemical spraying - a phenomenon some participants in the

programme blamed for various ailments from which they were suffering. The

programme also studied the hormonal spray 24-D (which was distributed by your

company) about which your company made comment.

The item examined the problems caused by the drift of aerial-delivered

chemicals, and was not a study of 2,4-D per se, TVNZ said. It was built around the

story of one man, and the illness he and others had suffered, which he believed was

caused by the drift of chemical spray.

As for the aspect of the complaint which claimed that 80% of the comments came from

people opposing the use of agrichemicals, TVNZ denied that balance was achieved by

the use of a stopwatch. Rather, it contended:

Balance is achieved when an issue is accurately and thoroughly explored giving

due weight to the various opinions of those involved. It is the purpose of G6, we

believe, to ensure that balance and fairness is achieved from the viewer's

perspective - so that by the end of the programme the viewer has had all the

relevant questions raised by the issue explained and answered in a balanced

fashion.

Repeating the point that the item was essentially the story of one man who believed his

health and that of his family was damaged by the use of the difficult to control 2,4-D,

TVNZ said the item reported his claim and that of some residents of nearby Waiotira.

These complaints had been investigated by the Northland Medical Officer of Health (Dr

Jarman) who reported (1.10.95) that the residents of Waiotira were exposed to 2,4-D in

July that year, that some residents reported spray damage, and that small amounts of

2,4-D were found in the drinking water of three homes in the area 14 days after the

alleged spray drift. TVNZ argued:

In TVNZ's view "60 Minutes" was correct in concluding that the allegations made

by Mr Lawrence and his neighbours at Waiotira, coupled with the investigation by

Dr Jarman (an independent expert) made it likely that 24-D spray drift had

damaged plants and caused some sickness in the community.

The item then raised the questions of how common was off-target drift, how dangerous

was exposure to 2,4-D and how difficult was it to control the aerial spraying of 2,4-D

ester.

TVNZ said it was ascertained that since November 1993, 24 confirmed incidents of

damage caused by the spray drift of 2,4-D had been reported to the Northland Regional

Council. Research disclosed a significant scientific literature on the effects on human

health of 2,4-D exposure, and one member of the Pesticides Board, Ms n Watts, in

October 1995 had sought a ban on the use of 2,4-D. Ms Watts told 60 Minutes of the

reasons for her action and, TVNZ commented to the complainant:

All of this information is doubtless familiar to you, but in setting out the research

behind the programme TVNZ is endeavouring to demonstrate how it tries to

identify that information which makes a programme fair and balanced from the

point of view of the television watcher.

It added:

We can understand that unflattering references to a product your company

distributes does not go down well with you, but stress that journalists must stand

back from that and identify what it is that makes an investigation fair and balanced

for the viewer.

As the manufacturer's comments were important for a balanced and fair item, TVNZ

said that the item included the points (either by way of interview or from the reporter's

script) that 2,4-D was safe when applied properly, and that while 2,4-D was poisonous

as noted on the label, it biodegraded quickly. The item included the reply from the

company's representative that:

"It is most unlikely that 24-D could cause cancer because, one, it gets into the

body and is rapidly excreted and, two, it is not metabolised into some other

chemical which is normally the way a carcinogen works so we are quite confident

that there is no problem and therefore no need to withdraw".

It was also denied clearly that the 2,4-D manufactured in New Zealand by DowElanco

contained any of the dioxin 2378. Voluntary tests, the item reported, had not been done

in New Zealand as the tests carried out in the US were done in conditions which did not

apply here.

TVNZ also stated:

Off camera you told "60 Minutes" that responsibility for off-target drift rested

with those who used 24-D and that DowElanco accepted no legal responsibility

for spray drift caused by off-label use of 24-D. You were then asked how much

of a problem you believed spray drift was and replied: "Oh a major problem and

there is a problem at the present time that these people even if something is

reasonably small they have great problems in getting compensation and I can't

offer a simple solution and I think we ought to look at this"

On the aspect of the complaint dealing with the extent of the complainant company's

involvement, TVNZ concluded:

It seems to TVNZ's Complaints Committee that "60 Minutes" gave you the right

of reply to all of the issues and allegations made in the programme that directly

affected DowElanco. It was done fairly and impartially - and provided that

balance which the programme was seeking for the viewer.

TVNZ described the comment about a horrible death from drinking large quantities of

2,4-D as "a simple statement of fact". It did not accept that the comment that spray drift

was not the company's responsibility implied that the company was uncaring especially

when the script then noted that spray drift was acknowledged by the company to be a

major problem.

It also denied that the factual comment about registration suggested a lack of control

over the product, adding:

TVNZ believes you may be mistaken in assessing that there has never been a

suggestion to review 24-D when used according to label claims. The dealings "60

Minutes" had with Helen Rowe [Chair] of the Pesticides Board suggests

otherwise. A document dated 10 March confirms that, while no formal review

has been undertaken, "an informal review is underway".

Disagreeing that the item had omitted to deal with the relatively rapid breakdown of 2,4-

D, TVNZ declined to upheld the complaint that the item breached standard G6.

On the basis that standard G16 dealt with comment with enormous consequences,

TVNZ said that it had not been contravened by the item on 2,4-D. TVNZ also denied

that the item had been edited in a way which distorted the views advanced and thus

standard G19 was not transgressed. Standard G20 was subsumed by standard G6,

TVNZ wrote, and standard G21 was not an issue. The complaint was not upheld.

DowElanco's Complaint to the Broadcasting Standards Authority - 30

April 1996

Dissatisfied with TVNZ's decisions, Mr Moffat on DowElanco's behalf referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989. He began:

Since the screening of the programme, we have had both users of agrichemicals

and the general public expressing confusion and personal health concerns about

agrichemicals which supports our view that the programme has raised undue

concerns.

It commented specifically on the following points:

* the stopwatch was a measure of balance when the time disparity was significant;

* surely Mr Newman, not Mr Lawrence, was the centre of the story and this error

raised question about TVNZ's accurate interpretation of the facts;

* Mr Newman's allegations about plant damage resulting from drift was not

responded to by the company because of the possibility of legal proceedings;

* 2,4-D was classified as a volatile substance, but what was in dispute was

whether the volatility was a major cause of target drift and damage to plants on

neighbouring properties as:

Experience in New Zealand over 40 years has shown that the

volatility of a herbicide has a negligible effect on plant damage.

In response to TVNZ's comment about the "unflattering references" to the product,

DowElanco observed that the comments were those which had been promoted by

extremist groups for several years. However:

... we do have a problem when a "documentary" programme puts the situation

out of perspective and obviously supports allegations that are not backed up by

sound peer reviewed science.

As for the registration of 2,4-D, it wrote:

When introducing DowElanco comments the presenter stated that "some say that it

(2,4-D) wouldn't pass today's rigorous registration standards." DowElanco

responded to this that a 5 year re-evaluation programme of 2,4-D using the latest

technology was being completed in the USA this year with no problems. No

mention of our response was made which is a further example of lack of balance.

This topic about the potential effects of the use of 2,4-D on health and the

environment is of prime interest to the viewing public and one would have

expected some statements to be aired by the registration authorities rather than

confining comments to Meriel Watts [of the Pesticides Board] who obviously has

her own agenda.

On DowElanco's behalf, Mr Moffat concluded:

Your comments on "drink enough of it and you will die a horrific death" are

unbelievable and show complete ignorance of toxicological matters and lack of

any emotional responsibility.

TVNZ's Response to the Authority - 8 May 1996

In its brief report to the Authority, TVNZ acknowledged that the name of the man at

the centre of the story was Mr Laurie Newman. It disputed "strenuously" the

complainant's comment that the use of a stopwatch was essential for balance.

Balance, it retorted, was achieved by giving a party the right of reply and:

A variety of viewpoints were represented and the interests of balance were served

that when a question was raised about one of the other participants in the

programme, that participant was seen to have the right of reply.

Moreover, it argued that stopwatch journalism was "notoriously unreliable" as a

guide to balance as it could mean the inclusion of irrelevant material. TVNZ

concluded:

We also remind the Authority, ... when the company wrote to "60 Minutes"

during the week following this broadcast, a summary of its views was included in

the correspondence section of the next edition of "60 Minutes".

DowElanco's Final Comment - 20 May 1996

DowElanco made two points in its final comment to the Authority.

First, TVNZ had misunderstood its main objection to the programme in suggesting

that it was the time difference. Rather, it was an indication that balance overall was

not achieved.

Secondly, the main reason for the complaint was the response from members of the

public - especially women - as to the health dangers. It wrote:

The overall perception presented to the public was that New Zealand was being

deluged with vast quantities of agrichemicals under virtually no control which

pose a significant threat to health.