BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Cleary and Talacek and TVWorks Ltd - 2008-125

Members
  • Joanne Morris (Chair)
  • Diane Musgrave
  • Tapu Misa
  • Paul France
Dated
Complainants
  • Nikki Talacek
  • Teresa Cleary
  • New Zealand Dietetic Association (NZDA), New Zealand Dietetic Association (NZDA)
Number
2008-125
Programme
Downsize Me!
Broadcaster
TVWorks Ltd
Channel/Station
TV3 # 3

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Downsize Me! – recommendations on weight loss and nutrition – allegedly inaccurate and misleading

Findings
Standard 5 (accuracy) – "factual programme" in the sense that it reported actual events and offered general information – advice and "scare tactics" presented in personable way – general messages were to eat better, exercise regularly and improve health – viewers would have understood that most of the advice was tailored to the particular participant – no misleading statements – not upheld

This headnote does not form part of the decision.


Broadcast

[1] Downsize Me! was a health, diet and exercise programme where overweight people worked for eight weeks to lose weight and reduce health risks. The Tuesday 9 September 2008 episode, broadcast at 7.30pm on TV3, featured a woman named Carolyn. The Downsize Me! team consisted of Damian Kristof, who was introduced as a "super nutrition guru", and a personal trainer.

[2] Throughout the episode, the team gave advice about Carolyn’s current health and designed an exercise and diet programme for her. At the end of the programme before the closing credits, the following words were briefly displayed in the bottom third of the screen:

The diet and exercise regime in this programme was designed and supervised by health professionals and tailored to our participant’s medical status and their specific needs. Consult with your doctor before embarking on any diet or exercise programme.

Complaint

[3] Teresa Cleary and Nikki Talacek made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the programme contained a number of specific inaccuracies and misleading statements. They nominated guidelines 5b and 5d to the accuracy standard.

[4] The complainants noted that Damian had fully assessed the participant for that episode, and so had her full history and was able to make statements specific to her health needs. However, they considered that he often presented opinions as facts, and there was a considerable risk that specific advice for the individual might be interpreted by viewers as population-wide recommendations. The complainants argued these statements contributed to inaccurate and misleading nutritional information and could result in the removal by viewers of a major food group leading to nutritional deficits.

[5] Ms Cleary and Ms Talacek outlined a number of specific aspects of the programme that they believed were inaccurate or misleading.

Reference to potatoes and bread as "poor choice carbohydrates" that will make you tired and bloated.

[6] The complainants noted that a small proportion of New Zealand people cannot tolerate food containing wheat or gluten, the symptoms of which included bloating, malabsorption and tiredness. There were also very few occurrences of people with an intolerance to potatoes, they said.

[7] However, both potatoes and bread were significant sources of dietary fibre and folate in New Zealand. Both were considered a "staple" in the New Zealand diet. Potatoes provided a significant amount of Vitamin C, antioxidants, and useful amounts of some B vitamins. At least six servings a day of breads and cereals, particularly wholegrain, were recommended by the Ministry of Health as part of a healthy balanced diet.

[8] The complainants said they were concerned that Damian could have been using information gained during his assessment of the participant that indicated she was intolerant to wheat and potatoes, and which was not revealed to viewers. His general statement could lead to viewers excluding two foods that provided a significant level of nutrition, they said. They noted that potatoes were listed as a suitable example of the Breads, Cereals, Grains and Starchy Vegetables group of the cardioprotective dietary pattern, and that six servings a day from this group were recommended. Further, this meal pattern was recommended for people with Type 2 diabetes because of their increased cardiovascular risk.

Damian stated that "eggs help to improve cholesterol”, and if the “yolks are kept runny HDL cholesterol will be improved".

[9] Ms Cleary and Ms Talacek maintained that egg yolks were high in saturated fat, which was the main dietary determinant for raising LDL cholesterol and decreasing HDL cholesterol. Egg yolks were also high in cholesterol, and while dietary cholesterol had little effect in a person with normal cholesterol, someone who already had raised cholesterol like the participant may not process cholesterol from food in the same way and should therefore limit their intake of cholesterol and saturated fat.

[10] The complainants argued there was justification for restricting eggs to three per week in people with certain conditions, and therefore it was misleading to say that "eggs help to improve cholesterol". The Evidence Based Best Practice Guidelines of New Zealand recommended that individuals at risk of cardiovascular disease consume "3 eggs weekly", they said. However, based on the comments made in the programme, viewers might believe they could consume more than the recommended three eggs per week.

A goal of 30-40kg weight loss over eight weeks was suggested by the participant and not discouraged by Damian.

[11] The complainants noted that this equated to 3.75-4kg per week, which was an "unhealthy and unrealistic" weight loss to endorse. They said a loss of 0.5-1kg per week was considered safe, healthy and sustainable by dietitians. They argued the programme could have led viewers to believe they needed to lose a large amount of weight every week to be successful with their weight loss efforts, which could lead to nutritional deficiencies if not medically supervised. Similarly, it could have led people who were losing 0.5-1kg of weight per week to believe they were not losing enough to be successful, when in fact they were doing well.

Statement that HDL cholesterol should be "above 2 but yours is very low at 0.9".

[12] Ms Cleary and Ms Talacek stated that the recommended level for HDL cholesterol, according to the New Zealand National Heart Foundation, was ?1.0mmol/L for both healthy and high risk people. They noted HDL may fall during weight loss but recover on weight stabilisation.

Damian stated that "Type 2 diabetes reacts poorly to starchy carbohydrates" when talking about potato.

[13] The complainants maintained that for a person with diabetes, potato could be a beneficial and necessary part of a meal to provide some carbohydrates for the blood. They agreed that lower Glycaemic Index (GI) carbohydrates should be chosen by people with Type 2 diabetes because they produced a slower rise in blood glucose levels. However, the GI of a meal was determined by a combination of the ingredients and cooking methods, not just the carbohydrate source. The GI of a potato can vary significantly depending on the variety of potato and cooking method. Further, the glycaemic impact relates to the amount eaten, so suggesting a smaller serving size would be more appropriate given that “starchy carbohydrates” such as wholegrain bread, rice, pasta, potatoes and kumara are an essential part of a balanced meal. Refined carbohydrates such as white bread or high sugar foods are not well tolerated by people with diabetes, the complainants said, and some starch is needed in the diet.

Statement that "sugar levels should always remain under 7.7 two hours after taking sugar in".

[14] Ms Cleary and Ms Talacek stated this was "the level diagnostic of normal blood glucose control", and was not a relevant target for those with established diabetes. They said 7% or less was the accepted indicator of acceptable blood glucose control.

Programme’s disclaimer

[15] The complainants were concerned that the disclaimer shown at the end of the programme, stating that no weight loss or diet should be attempted without medical advice, was shown so fast that a viewer would have to pause the programme to read it. They considered it should be made clear at the start of the programme that medical advice should be sought before embarking on any weight loss or diet regime.

Standards

[16] The complainants nominated Standard 5 and guidelines 5b and 5d of the Free-to-Air Television Code of Broadcasting Practice in their complaint. These provide:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5b   Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5d   Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

Broadcaster's Response to the Complainant

[17] TVWorks noted that it had dealt with a very similar complaint from Ms Talacek the previous year, and that the Authority had not upheld the complaint.

[18] As the present complaint was similar in many respects, TVWorks said, it was satisfied that the expert advice given in the programme was soundly based, and it declined to accept or investigate the complaint.

Referral to the Authority

[19] Dissatisfied with TVWorks’ response, Ms Cleary and Ms Talacek referred their complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Broadcaster’s Response to the Authority

[20] TVWorks reiterated that the basis for its refusal to consider the complaint in detail was that a very similar complaint was lodged by one of the complainants the previous year. That complaint had been referred to the Authority and the Authority declined to uphold the complaint. Given that much the same ground was covered in the present complaint, TVWorks considered it appropriate to deal with the complaint in the manner explained in its response to the complainants. However, it offered to provide a response from the programme’s producers if the Authority wished to consider the complaint in detail.

Authority's Request for Further Submissions

[21] Having considered the scope of the complaint as compared to its earlier Decision No. 2007-078 about Downsize Me!, the Authority concluded that several new matters of accuracy had been raised. Accordingly, it asked the broadcaster to address those points.

Broadcaster's Response to Authority's Request

[22] TVWorks first made some general comments about the complaint. It considered that the issues complained about “fell squarely into the category of evaluative professional advice”, and that the programme's producers could demonstrate that Damian had a proper basis for the comments made, in the context in which they were made. TVWorks maintained that reasonable viewers would readily appreciate that the very specific advice given was appropriate for the individual concerned and was not necessarily for general application without seeking appropriate, individually tailored information. It noted there was a clear direction to viewers to that effect included in the programme.

[23] TVWorks then provided a response from Damian Kristof on the specific points raised by the complainants.

Reference to potatoes and bread as "poor choice carbohydrates" that will make you tired and bloated.

[24] Damian stated that as a practitioner and as part of educating participants and viewers, he felt he had to clarify what were "good" and "poor" choice foods, which was obviously different to the dietitians’ "food pyramid". Poor choice carbohydrates in this instance were those that elevated blood sugar rapidly, creating bloating. In the participant’s case these included potatoes, breads, cereals and some grains. Aside from the nutrient information provided by the complainants, protein, fibre, carbohydrate, and other vitamins and minerals mentioned were also found in other foods that were suggested to the participant. The food pyramid was considered a guide, he said, not a rule. Damian said that, in his experience, Type 2 diabetes was better managed with less starchy carbohydrates as evident in blood test results across the series.

[25] He provided information about the food pyramid model of food consumption, noting that it had come under scrutiny across the globe. Damian considered his classifications of good and poor choice carbohydrates was supported by current research, much of which was published after the guidelines drafted by the NZDA in 2003.

Damian stated that "eggs help to improve cholesterol", and if the "yolks are kept runny HDL cholesterol will be improved".

[26] Damian cited two studies1 in support of the advice he gave in the programme, and particularly with regard to carbohydrate-restricted diets, for example: "These results suggest that including eggs in a Carbohydrate-Restricted Diet results in increased HDL-Cholesterol while decreasing the risk factors associated with [metabolic syndrome]".

A goal of 30-40kg weight loss over eight weeks was suggested by the participant and not discouraged by Damian.

[27] The footage included in the programme clearly showed that he did not set a goal of 30-40kg weight loss, Damian wrote. He said the participant was "very ambitious and in the heat of the day made this statement". She went on to lose 18kg and through her doctors’ supervision was able to reduce her medication. This was a "very healthy outcome", he said.

Statement that HDL cholesterol should be "above 2 but yours is very low at 0.9".

[28] Damian stated that functionally, HDL cholesterol was better at the higher level. Some studies suggested 1.3mmol was the optimal range, while others suggested above 2, he said. It was widely accepted, however, that below 1.0mmol/L was disadvantageous and led to cardiovascular disease and other complications. He again cited a number of studies.

Damian stated that "Type 2 diabetes reacts poorly to starchy carbohydrates" when talking about potato.

[29] Stating that "potato is NOT a beneficial food for Type 2 diabetes", Damian maintained that it raised blood sugar levels and further complicated diabetes. It was good practice to consider GI, he said, but the Glycaemic Load, in which the amount of carbohydrate delivered over time was considered, was more clinically relevant, not just the speed at which it was delivered to the blood stream.

Statement that "sugar levels should always remain under 7.7 two hours after taking sugar in".

[30] Damian noted that HBA1C was an indicator of the degree of glycated haemoglobin in the blood stream, which in turn was indicative of the control of diabetes. On a standard Glucose Tolerance Test, the reference range stated that below 7.7mmol/L two hours following a Glucose Tolerance challenge was desirable. He said "it is fair to suggest then that meals that are less than 75mg in total glucose load should also yield a [blood sugar level] less than 7.7 after two hours".

Authority's Determination

[31] 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.

Nature of the Programme

[32] In Decision No. 2007-078, the Authority found that Downsize Me! was a "factual programme" to which the accuracy standard applied. It commented that viewers were reasonably entitled to expect that the information given in the programme was truthful and authoritative. However, while the programme was informative at a general level, the Authority considers that its overarching purpose was to entertain viewers and convey an uplifting social message. The programme’s presenters employed shock tactics, and presented advice in a personable and sometimes dramatic way, in an attempt to impress upon the participants the importance of eating well and exercising.

[33] The Authority acknowledges that discussions which challenge orthodox or mainstream medical opinion are important parts of the right to freedom of expression provided by the New Zealand Bill of Rights Act 1990. It would therefore be hesitant to limit the expression of genuine opinion on matters of health, provided that it was clearly distinguishable as opinion. Further, the perspective and qualifications of the person giving the advice should be disclosed so that viewers can make an informed decision about the validity of their opinions. This is particularly important where a programme is discussing specific health conditions such as diabetes, because the potential consequences of a viewer adopting incorrect or controversial advice could be life-threatening.

[34] TVWorks argued that the disclaimer at the end of each episode of Downsize Me! was sufficient to make it clear that the advice in the programme was tailored to the particular participants, so that viewers would not adopt it themselves. The Authority disagrees. The disclaimer was small, difficult to read and was not displayed for sufficient time for an ordinary viewer to read and understand it. Furthermore, Damian Kristof’s qualification as a naturopath was never disclosed to viewers; he was simply described as a "super nutrition guru" and the disclaimer referred to "health professionals".

[35] In order for a disclaimer to operate in the manner suggested by the broadcaster – effectively as a "cure-all" - the Authority considers that it would need to specify the qualifications of the person giving advice and, ideally, be presented verbally and visually at the beginning of the programme.

[36] Having determined that the disclaimer was not sufficient to frame the programme so as to avoid breaching the accuracy standard, the Authority now proceeds to consider each of the statements claimed to be inaccurate by Ms Cleary and Ms Talacek.

Reference to potatoes and bread as "poor choice carbohydrates" that will make you tired and bloated.

[37] The Authority notes that the statement made by Damian when discussing what Carolyn had typically been eating for breakfast was as follows:

You used to have a fry-up. You’ve got sausages, fried eggs – all we’re talking about there is lots of saturated fat. But when you get to the potato and the bread, they’re really poor choice carbohydrates that would make you tired, bloated, full.

[38] Carolyn then remarked, "No wonder I get tired by lunchtime". Damian recommended that Carolyn replace the fry-ups with a meal that was high in protein and iron, such as fish and spinach salad.

[39] The Authority disagrees with the complainants that reasonable viewers would have interpreted the statement as encouraging them to completely eliminate potatoes and bread from their diets. Damian was simply introducing Carolyn to healthier alternatives, based on what he already knew about her diabetes and her health.

[40] In these circumstances, the Authority declines to uphold the complaint that the statement was misleading or inaccurate.

Damian stated that "eggs help to improve cholesterol", and if the "yolks are kept runny HDL cholesterol will be improved".

[41] The complainants argued that this statement from Damian breached Standard 5 because eggs were high in cholesterol and best practice guidelines recommended limiting intake to three eggs per week.

[42] The Authority notes that Damian did not specify how many or how few eggs Carolyn should be eating. The meal that he recommended at this point in the programme was a salad including one egg, and was only an example of what Carolyn should be eating for lunch; Damian did not suggest to Carolyn that she could eat eggs every day or as often as she liked.

[43] Regardless, the information provided by Damian and the broadcaster suggested egg intake need not be rigorously restricted. A 2008 study on overweight/obese males following carbohydrate-restricted diets (CRD), in which some subjects increased egg intake to three eggs per day, found that "including eggs in a CRD results in increased HDL-Cholesterol while decreasing the risk factors associated with [metabolic syndrome]".2

[44] The Authority concludes therefore that Damian had sufficient justification for the statement he made in the programme, and that the statement was not misleading or inaccurate. It declines to uphold this aspect of the complaint.

A goal of 30-40kg weight loss over eight weeks was suggested by the participant and not discouraged by Damian.

[45] The Authority notes that the following exchange took place between Damian and Carolyn:

Damian:   So how much weight do you want to lose over the next eight weeks?

Carolyn:   Um, between 30 and 40 kilos.

Damian:   Jeepers, that’s quite a lot. We’ve got to do whatever it takes to make sure you’re
               healthy. So if you lose that much weight, then that’s fantastic. That’s a lot of
               weight to lose in a short space of time.

[46] The Authority agrees with the broadcaster that Carolyn set that goal for herself in the heat of the moment, after finding out that she weighed 185 kilograms. It also agrees that Damian did not explicitly promote that degree of weight loss, but twice expressed the concern that 30 to 40 kilograms was a lot of weight to lose in the space of eight weeks. Further, at the end of the eight weeks, Carolyn was praised and congratulated by Damian and her trainer for losing 18 kilograms.

[47] Therefore, the Authority disagrees with the complainants that the programme presented this as a healthy and realistic weight loss goal, and that the average viewer would have concluded they were not successful if they did not lose 30-40kg in eight weeks. The Authority does not uphold this aspect of the complaint.

Statement that HDL cholesterol should be "above 2 but yours is very low at 0.9".

[48] The complainants stated the recommended level for HDL cholesterol, according to the New Zealand National Heart Foundation, was ?1.0mmol/L for both healthy and high risk people. HDL may fall during weight loss but recover on weight stabilisation.

[49] Damian stated that functionally, HDL cholesterol was better at the higher level. Some studies suggested 1.3mmol was the optimal range, while others suggested above 2 was optimal. It was widely accepted, however, that below 1.0mmol/L was disadvantageous and led to cardiovascular disease and other complications. He cited a number of studies.

[50] The Authority notes that both parties appear to agree that an HDL level greater than 1 is recommended, even though there may be some division in opinion of what is an optimal range. It is of the view that Damian was recommending what he believed to be an optimal level for Carolyn, based on his research of other studies. Accordingly, the Authority finds Damian’s statement was not inaccurate or misleading.

Damian stated that "Type 2 diabetes reacts poorly to starchy carbohydrates" when talking about potato.

[51] The complainants maintained that for a person with diabetes, potato could be a beneficial and necessary part of a meal to provide some carbohydrates for the blood. Damian maintained that "potato is NOT a beneficial food for Type 2 diabetes". He said it raised blood sugar levels and caused further complications for diabetics.

[52] The Authority notes that the Ministry of Health Cardioprotective Dietary Patterns recommended for the management of Type 2 diabetes allow for "one small potato" as part of six servings of breads, cereals, grains and starchy vegetables per day, but with additional instructions to "limit [starchy vegetables] for weight control and diabetes control". It is clear that Damian holds a firm belief that potato is not a beneficial food for diabetics, and the complainants have not provided any information to convince the Authority that his statement in the programme, in the context of advising Carolyn, was not justified. Accordingly, it declines to uphold this aspect of the complaint.

Statement that "sugar levels should always remain under 7.7 two hours after taking sugar in".

[53] The complainants stated this was the accepted level of normal blood glucose control, and was not a relevant target for those with established diabetes.

[54] In the Authority’s view, this information was too technical and specialised to have misled or alarmed viewers. It considers that most viewers would have taken from the statement only that there was a certain blood sugar level that was desirable, and that across the eight-week programme Carolyn had managed to lower hers to a safer level.

[55] Accordingly, the Authority declines to uphold the complaint that Damian’s statement was misleading in breach 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
6 May 2009

Appendix

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

1.  Teresa Cleary and Nikki Talacek's formal complaint – 7 October 2008
2. TVWorks' response to the complaint – 9 October 2008
3. Ms Cleary and Ms Talacek's referral to the Authority – 10 November 2008
4. TVWorks' response to the Authority – 24 November 2008
5. TVWorks' response to the Authority’s request for further submissions –
    16 December 2008


1Mutungi, G., et al. 'Dietary cholesterol from eggs increases plasma HDL cholesterol in overweight men consuming a carbohydrate diet.' Journal of Nutrition, 2008, 138(2), 272–276; Schnohr, P., et al. 'Egg consumption and high-density-lipoprotein cholesterol.' Journal of International Medicine, 1994, 235(3), 249–251.

2Mutungi, G., et al. 'Dietary cholesterol from eggs increases plasma HDL cholesterol in overweight men consuming a carbohydrate diet.' Journal of Nutrition, 2008, 138(2), 272–276.