BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – interview with woman who was launching a brand of cosmetics made from natural ingredients – contained a number of statements about the chemicals contained in mainstream cosmetics, including that most contained parabens – allegedly in breach of controversial issues, accuracy and fairness standards

Findings
Standard 4 (controversial issues) – item did not discuss a controversial issue of public importance – presented one woman’s views and experiences – not upheld

Standard 5 (accuracy) – interviewee was not presented as an expert – viewers would have understood that her comments were opinion and not statements of fact – not upheld

Standard 6 (fairness) – complainant did not identify any individual or organisation treated unfairly – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]   An item on Close Up, broadcast on TV One at 7pm on 12 October 2010, interviewed a woman who was launching a new “eco-glam” cosmetics brand made from natural ingredients, in New Zealand. The presenter introduced the item as follows:

These days we’re bombarded with the organic message and all the costs that go with it. And if you’re prepared to pay, it does sound like the right thing, use more natural products. But do you actually know why you bother? Well [Interviewee’s name] is here to tell you why. [Our reporter] invited [her] in her own home to see how much she might need to rethink her own choices.

[2]   The item contained the following comments from the interviewee and the reporter:

• “The authorities would say to you, at low levels these carcinogens are okay. Well that’s palpably incorrect. There have been no scientific studies which determine a safe level for a carcinogen.” (interviewee)
• “[She] is talking about some of the cancer-causing chemicals found in our most used products.” (reporter)
• “You’re using a cocktail of chemicals. There are so many different chemicals inside your one product.” (interviewee)
• “Chemicals like propylene glycol, a petrochemical solvent found not only in industrial products like paint and varnish, but also in some toothpastes, eye and face makeups, even baby wipes.” (reporter)
• “You know I am not a scientist. I am not an expert. I am a mother and this is my journey, this is what I learnt along the way and I’m just sharing information and knowledge with other people.” (interviewee)
• “...are you ready to find out what’s lurking in your home?” (interviewee)
• “So this is the makeup I normally use, do you feel sorry for me?” (reporter) “I feel concerned for you.” (interviewee)
• “What she’s claiming is the chemicals in these common products, used over the long term, could be bad for our health.” (reporter)
• “There are literally thousands and thousands of toxic chemical ingredients and most of these ingredients have not been passed for safety.” (interviewee)
• “Her own range is the only cosmetic company in the world to be 100 percent certified vegan, 100 percent organic, 100 percent cruelty free, even certified halal.” (reporter)
• “Isn’t saying something’s pure, organic, natural, isn’t that just a great marketing tool?” (reporter)
• “It is, and a lot of companies use it that way. I dislike companies that are pretending to be natural.” (interviewee)
• “...the number one ingredient here is aluminium, and aluminium is a neurotoxin, and aluminium has also been linked to Alzheimer’s disease, which is massively on the increase now.” (interviewee)
• “Neurotoxins are often referred to as inert poison.” (reporter)
• “Most of the products in this cabinet will contain parabens. ...They’re the most commonly used preservative in cosmetics. You’ll find them in almost everything. All the scientific studies that have been done have proven that parabens are hormone disrupters, they mimic oestrogen.” (interviewee)
• “Scientific studies have established a link between oestrogen and breast cancer. This is a preservative we can do without according to this eco-warrior.” (reporter)
• “Are you scaremongering?” (reporter) “Look I’m sure that people do get scared as a result of what I’m saying. I’m not doing this to scare someone. I’m doing this to encourage people to make more natural choices.” (interviewee)
• “Scientifically, confusion still surrounds the link between cancer and personal care products.” (reporter)
• “I always say to people, don’t take my word for it, go and do your own research.” (interviewee)
• “...after this insight with [the interviewee], I’m not sure I’m ready to throw away my own makeup kit, but I’m definitely thinking about my choices.” (reporter)

Complaint

[3]   The Cosmetic Toiletry, Fragrance Association (CTFA) made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached standards relating to controversial issues, accuracy and fairness.

[4]   The CTFA considered that the item was an advertorial for the interviewee’s products, and that it lacked balance from “either regulatory authorities or the industry body”. It argued that, while products may be 100 percent organic or natural, “it is false to assume that such cosmetics are absolutely safe”. It maintained that some of their ingredients could be carcinogenic or have other health risks associated with them. The CTFA considered that it was “not accurate to claim [that mineral cosmetics] are safe or to imply that they are safer than normal cosmetics used in makeup”.

[5]   With regard to some of the claims made by the interviewee in the item, the CTFA said:

Claims that ingredients such as parabens are linked to breast cancer have been disproven and claims that such ingredients are not assessed for carcinogenic properties are inaccurate. Most are assessed and a rolling programme of reassessment is occurring within the EU to ensure the safety of all ingredients. New Zealand regulations for cosmetics are modelled on the EU ingredient schedules with maximum permitted levels established within those regulations.

[6]   Making further comments on the claims in the item relating to parabens, the complainant said, “The reason parabens are used widely in cosmetics, is that since the 1930s, they have been used safely within cosmetics and throughout a range of other products including medicines”. It considered that it was “an unfair denigration of the other cosmetic products in the market to imply that because they use these ingredients they are less safe or are ‘toxic’ when there is no scientific evidence of this”. The CTFA maintained that it was inaccurate to imply that “all cosmetics use parabens” because “not all cosmetic products need a preservative due to the natural preservation effects of their ingredients in dealing with microbial contamination”. It noted that any products that required a preservative but did not use parabens “either requires the need to use an alternative which may not be as effective against all microbiological contamination or may have other harmful side effects requiring additional ingredients to neutralise those effects”.

[7]   The complainant concluded by arguing that the views expressed in the programme were considered highly controversial within the cosmetic industry, and that they were used to launch a range of products that had “no proven greater safety profile than traditional cosmetic products”. It considered that “the programme played on the fears of hidden toxic substances and lacked any representation of the industry or regulatory facts.”

Standards

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

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[9]   Looking at Standard 4, TVNZ stated that it must first consider whether the item discussed a controversial issue of public importance. It contended that an “issue of public importance” was typically defined by the Authority as something that would have “a significant potential impact on, or be of concern to, members of the New Zealand public” (e.g. Powell and CanWest TVWorks¹), while a “controversial issue” was defined as one which had topical currency and excited conflicting opinion, or about which there had been ongoing public debate” (for example, MSD and TVNZ²).

[10]   TVNZ was of the view that, while there was public interest in the topic discussed, it was not a controversial issue of public importance. However, TVNZ argued that if it was such an issue, appropriate viewpoints were sought and presented.

[11]   The broadcaster maintained that the item was clearly presented as a personal story and was not designed to be an investigation of the entire cosmetics industry. It considered that the interviewee’s perspective was made clear to viewers, and noted that at the beginning of the item she explicitly stated, “I am not a scientist. I am not an expert. I am a mother. This is my journey. This is what I learnt along the way and I’m just sharing information and knowledge with other people.” TVNZ was of the view that the interviewee’s comments were clearly her personal opinion to which she was entitled under broadcasting standards.

[12]   The broadcaster concluded that in the context of an item focusing on the personal experiences of one woman, appropriate viewpoints had been sought and presented. It declined to uphold the Standard 4 complaint.

[13]   Turning to consider Standard 5 (accuracy), TVNZ argued that the interviewee was not presented as “an expert in this area”, and that “from the outset, the audience was informed that she was neither a scientist nor an expert”. It considered that viewers would have understood that her comments were her personal opinion rather than statements of fact.

[14]   With regard to the complainant’s arguments about parabens and breast cancer, TVNZ maintained that there was “some factual foundation” for the interviewee’s claims in this respect, citing a 2004 study relating to the detection of parabens in breast tumours. However, it said, “this is an ongoing scientific dispute and the Close Up item never set out to answer the dispute nor could it be expected to do so”. For the purposes of Standard 5, the broadcaster considered that viewers would have been unlikely to consider the interviewee’s comments to be “scientifically factual”, noting that she said in the item, “I always say to people, don’t take my word for it, go and do your own research.”

[15]   TVNZ also noted that immediately following the reporter’s comment that “scientific studies have established a link between oestrogen and breast cancer,” the reporter also stated, “This is a preservative we can do without according to this ecowarrior,” which it considered made it clear to viewers that this was the interviewee’s viewpoint.

[16]   The broadcaster disagreed that the item implied that natural products were safer; “it simply referred loosely to consumer trends and asked whether consumers even knew why they made the choices they did,” TVNZ said.

[17]   TVNZ concluded that the item was not inaccurate and declined to uphold the Standard 5 complaint.

[18]   The broadcaster noted that Standard 6 (fairness) was designed to ensure that any person or organisation referred to in a broadcast was treated fairly. It said that the interviewee was the only person referred to, and that she was fully informed of the reasons for her participation in the interview. It noted that her cosmetics brand was the only organisation referred to, and said that it could not identify any unfairness to that company. TVNZ disagreed that the item was unfair to the wider cosmetic industry “when it was clear the focus of the item was on [the eco-glam cosmetics brand] and its founder”.

[19]   TVNZ therefore declined to uphold the fairness complaint.

Referral to the Authority

[20]   Dissatisfied with the broadcaster’s response, the CTFA referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[21]   With regard to Standard 4, the complainant maintained that “any programme which presents a view that a substantial range of products within every household contains hidden toxic substances without substantial underlying scientific backing or without providing a reasonable countervailing viewpoint whether that is an official regulatory view or an industry view, creates controversy”. It argued that the item was presented in a highly respected programme, which added credibility to the opinion being expressed, so that at the very least the item should have included an industry statement to provide balance.

[22]   The CTFA contended that the study cited by TVNZ with regard to parabens “was not a study of links but of the presence of parabens within cancerous tissue. It did not show or establish any link but suggested that further research was necessary on parabens,” it said. Further, the study did not consider the source of the parabens, which could have come from medicines or common food sources. The complainant pointed out that an EU body, the Scientific Committee for Consumer Products, which looked at the study, found that “in the case of most common parabens there was no evidence, in the levels they were used within cosmetics, of any such risks,” and had not seen any reason to impose bans or increase restrictions on the use of parabens. It therefore considered that the study cited by TVNZ was now widely discredited.

[23]   The complainant was of the view that the reporter’s statements in the item had endorsed the interviewee’s opinions and did not clearly identify them as opinions. It reiterated its view that “this programme is considered a credible source of information by a wide sector of the public and therefore such comments move the programme from just opinion to... perceived facts”.

[24]   The CTFA maintained that the programme implied that natural ingredients were safer, and argued that “there are many natural mineral products which are highly toxic and should never be allowed in a cosmetic product”, and that the programme contained references to hidden toxic substances in mainstream products.

[25]   With regard to fairness, the complainant maintained that “while no company or individual outside of the participant and her company [was] specifically mentioned, the broad comments [did] unfairly denigrate other products by mainstream brands within New Zealand”.

Authority's Determination

[26]   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 (controversial issues – viewpoints)

[27]   Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[28]   The Authority has already considered the Close Up item subject to complaint in relation to Standard 4, and found that it did not discuss a controversial issue of public importance to which the standard applied. In Reade and TVNZ,³ the Authority said:

The Authority has previously found that Standard 4 does not apply to programmes focusing on individual stories (e.g. Egg Producers Federation and TVWorks⁴). On this occasion, we consider that the focus of the item, which was in the format of an infomercial, was the interviewee and her views on why her brand of cosmetics was preferable to other brands, which she believed contained harmful ingredients. We note that near the beginning of the item, the interviewee made it clear that she was offering her perspective, when she stated, “I am not a scientist. I am not an expert. I am a mother and this is my journey. This is what I learnt along the way and I’m just sharing information and knowledge with other people.” She went on to discuss her personal experiences with how using natural products had positively impacted her health.

Accordingly, we find that the item did not discuss a controversial issue of public importance because it was squarely focused on the interviewee’s personal views and the promotion of her products, as opposed to any wider debate about whether common cosmetic products could be harmful.

[29]   In our view, it was therefore not necessary, in the interests of balance, to present the perspective of “either regulatory authorities or the industry body”, as argued by the CTFA.

[30]   In any case, we consider that viewers were left to form their own judgement about the interviewee’s position. We note that she said at the conclusion of the item, “I always say to people, don’t take my word for it, go and do your own research.” The reporter also stated that, “Scientifically, confusion still surrounds the link between cancer and personal care products”, and questioned whether the interviewee was “scaremongering”, before reaching the conclusion that she was not yet convinced she should swap her mainstream products for natural products.

[31]   For these reasons, we decline to uphold the complaint that the Close Up item breached Standard 4.

Standard 5 (accuracy)

[32]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[33]   The CTFA complained that the following aspects of the item were inaccurate:

• Claims that ingredients such as parabens are linked to breast cancer.
• Claims that such ingredients are not assessed for carcinogenic properties.
• Claims that mineral cosmetics are safer than standard cosmetics.

[34]   In our view, the item did not state as fact that parabens are linked to breast cancer, or that these ingredients are not assessed for carcinogenic properties. We note that the item contained the following statements by the interviewee:

• “The authorities would say to you, at low levels these carcinogens are okay. Well that’s palpably incorrect. There have been no scientific studies which determine a safe level for a carcinogen.”
• “There are literally thousands and thousands of toxic chemical ingredients and most of these ingredients have not been passed for safety.”
• “Most of the products in this cabinet will contain parabens. ...They’re the most commonly used preservative in cosmetics. You’ll find them in almost everything. All the scientific studies that have been done have proven that parabens are hormone disrupters, they mimic oestrogen.” 

[35]   With regard to the third point raised by the CTFA, we consider that, if the interviewee implied that mineral cosmetics were safer than standard cosmetics, viewers would have understood that she was offering her personal opinion.

[36]   The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion (guideline 5a). The complainant characterised the item as an “advertorial” and we agree the item seemed more like an infomercial than a news item. As noted above under Standard 4, we consider that the interviewee made it clear that she was offering her own opinions and perspective, and that it would have been evident to viewers that her agenda was promoting her own brand of natural cosmetics.

[37]   Accordingly, we do not consider that the item was inaccurate or that viewers would have been misled, and we decline to uphold the Standard 5 complaint.

Standard 6 (fairness)

[38]   The CTFA argued that, “It is an unfair denigration of the other cosmetic products in the market to imply that because they use these ingredients they are less safe or are ‘toxic’ when there is no scientific evidence of this”.

[39]   We note that Standard 6 applies only to individuals and organisations taking part or referred to in a programme. As the complainant did not identify any individual or organisation that it believed had been treated unfairly, we have no basis upon which to uphold this part of the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
29 March 2011

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 – 13 October 2010

2                 TVNZ’s response to the complaint – 3 December 2010

3                 The CTFA’s referral to the Authority – 6 December 2010

4                 TVNZ’s response to the Authority – 10 February 2011

¹Decision No. 2005-125

²Decision No. 2006-076

³Decision No. 2010-159 at paragraphs [15] to [16]

⁴Decision No. 2009-053