Alcohol Healthwatch and Health Action and TV3 Network Services Ltd

Alcohol Healthwatch and Health Action and TV3 Network Services Ltd - 1995-026, 1995-027

Members

I W Gallaway (Chair)
L M Loates
W J Fraser

Dated

11 May 1995

Complainant

Alcohol Healthwatch, Health Action

Number

1995-026–027

Programme

Sale of the Century

Broadcaster

TV3 Network Services Ltd

Channel/Station

TV3

Standards

Free-to-air TV Code: Liquor

Summary

Sale of the Century, a game show, is broadcast on TV3 on weekdays from 7.00–

7.30pm. The Auckland Warriors rugby league team was featured on the programme

on Friday 11 November and from Monday to Friday 14–18 November.

The Health Promotion Adviser (Ms Cherry Morgan) for Alcohol Healthwatch

complained to TV3 Network Services Ltd that the programmes contravened the

standards relating to the incidental promotion of liquor. That had occurred through

the extensive display of DB Bitter logos.

For Health Action in Nelson, the Health Promotion Adviser (Ms Liz McPherson)

complained that showing the DB Bitter logos during the programmes during the week

was contrived incidental liquor promotion which breached the standards.

Explaining that the team members had worn their uniforms while on official duty to

promote the team, TV3 declined to uphold the complaints. Dissatisfied with TV3's

decision, Alcohol Healthwatch and Health Action each referred its 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 declined to uphold the complaints.

Decision

The members of the Authority have viewed the programmes complained about and

have read the correspondence (summarised in the Appendices). As is its practice, the

Authority has determined the complaints without a formal hearing.

On Friday 11 November and from Monday 14 to Friday 18 November some members

of the Auckland Warriors rugby league team appeared on Sale of the Century. A few

members were seen in the opening credits and, at the end of the show, several

members promoted some of the prizes. On a number of occasions, the programme's

presenters exchanged a few words about the team with some of the players. The team

members were wearing playing uniforms and, at the end of the broadcast on 18

November, the presenters were given large membership cards for the supporters' club

carrying the sponsoring liquor company's logo.

In view of the DB Bitter logo apparent on the players' clothing, both complainants

complained to TV3 that the broadcasts involved contrived incidental promotion of

liquor in breach of standard A3 of the Programme Standards for the Promotion of

Liquor. Alcohol Healthwatch also complained that the coverage of the DB Bitter

Warriors Support Club membership cards breached the standard.

Standard A3 reads:

A3 Broadcasters will ensure that the incidental promotion of liquor is

minimised and in particular:

a. Will not be a party to any contract or arrangement where incidental

liquor promotion is a contrived part of the programme.

b. Will ensure that backdrops and props for any in-house studio

programme do not carry liquor promotions (not applicable on radio).

c. Will not unduly focus in a live or on-location event on any particular

advertising signage, logo or any other sound or visual effect which

promotes liquor.

d. Will not broadcast anything which is in breach of section 1, relating

to incidental promotion and saturation, of the Voluntary Sports Code

for Liquor Advertising and Promotion on Television.

It is recognised that incidental liquor promotion occurs from time to time in

programmes where broadcasters have little or no control over the situation. In

those situations they must minimise the exposure to the best of their ability.

Where broadcasters have control of the situation, they will ensure that the

standards regarding incidental promotion are followed in the spirit as well as the

letter.

TV3 advised the complainants that the Auckland Warriors appeared on the

programme during a special Warriors week:

... to publicise a special prize of the Rugby League Grand Final Tour and to

promote the Auckland Warriors team which enters the New South Wales Rugby

League Winfield Cup competition next year. As a team on official duty they

wore their uniform which incorporates their name and logo, namely the

Auckland DB Bitter Warriors.

It also said that the uniforms and logos had been approved by the appropriate sports

body, that the backdrops did not contain liquor promotion and that the shots of the

players did not unduly focus on the liquor signage or the logo.

In addition, TV3 referred to rules 1.4.2 and 2.f of the Voluntary Sports Code. The

former provides under the heading "Wearing of Apparel on Television":

1.4.2 It is not acceptable for athletes to wear official team apparel –

competition, practice or casual – on special programmes, game shows,

appearances or interviews other than those regarded as official team

duties.

Arguing that the issue was whether the appearances on Sale of the Century were

official team duties, TV3 listed a range of other functions where team members had

appeared wearing competition uniform. TV3 maintained that the appearance of the

Warriors on the game show as hosts – not as contestants – to promote awareness of

the team was clearly an "official team duty".

When Ms Morgan on behalf of Alcohol Healthwatch referred its complaint to the

Authority, she disputed that the appearances were "official team duties" and she also

argued that the appearances of team members each night for a week amounted to the

saturation of incidental liquor promotion in contravention of standard A1.

Dissatisfaction with the "official team duty" explanation was also expressed by Ms

McPherson on behalf of Health Action in Nelson who argued that liquor promotion

during a family show breached the spirit of the Programme Standards if not the letter.

In its report to the Authority on both complaints, TV3 repeated its argument that rule

1.4.2 of the Voluntary Sports Code allowed the players to wear their team uniforms

on an "official team duty". That, it maintained, was the situation which applied to the

members' appearances on Sale of the Century. Quoting a recent article in the "Sunday

Star Times" in its support, TV3 commented:

The Auckland Warriors are a national phenomenon and have generated much

publicity. Their appearance on Sale of the Century was part of the team's

efforts to raise their profile for the upcoming season.

Both complainants responded sharply to this comment. Ms Morgan said the

appearance of the Warriors was principally an example of the Warriors' publicity

process in action and, stressing that TV3 had control of the situation when the

Warriors appeared on the programme, pointed to the provision in standard A3 which

requires the spirit as well as the letter of the standards to be followed in that situation.

Because they were a "national phenomena", Ms McPherson wrote, the Warriors had a

strong appeal to youth and she also noted that TV3 was required to follow the

standard's spirit because it had control of the material which was broadcast.

The Authority decided to approach the complaint in the following way. First,

because the saturation aspect of the complaint (standard A1) was raised explicitly

only when Alcohol Healthwatch referred its complaint, the Authority decided that it

was unable to accept that aspect of the referral under s.7(3) of the Act which provides

that its function is to investigate and review a broadcaster's decision. The Authority

would add, nevertheless, that standard A1 refers to saturation within "a viewing

period". In this case, that would refer to each of the six incidental Sale of the Century

programmes and, in the Authority's opinion particularly as shots of the players did

not focus on the logos, the extent and number of the appearances of the logo during

each programme did not amount to saturation.

Both complainants maintained that standard A3 had been breached and each referred

to the contrived nature of the promotion. The Authority regards the introductory

sentence of the standard as the principle to be followed and points (a) to (d) refer to

specific circumstances. Although the reference to a "contrivance" in the complaints

could suggest that the complaint focussed on A3.a, the Authority has proceeded on

the basis that the complaints alleged that the incidental promotion of liquor was not

minimised in the episodes of Sale of the Century referred to.

In interpreting standard A3, the Authority has had regard to the footnote which, the

complainants pointed out, requires conscientious compliance when the broadcaster

has control of the situation as it had on Sale of the Century.

The Authority next considered under what name the team was known, and then how

it was described during the broadcast. It concluded that in common usage the team

appeared to be known as the Warriors or the Auckland Warriors. Only occasionally

are they given their full name in the media and, in the programmes complained about,

they were usually described just as the Warriors. As there were minimal verbal

references to DB Bitter during the broadcast, the Authority considered the complaint

about incidental liquor promotion was confined to the liquor logos which were seen on

the uniforms.

In studying the shots of the players, the Authority accepted that TV3 had tried to

minimise the exposure of the liquor logos.

Members of the Authority disagreed on the final matter raised by the complaint, ie

whether the broadcast complied with the provision in the footnote of standard A3

which requires broadcasters to follow the standards in spirit in addition to the letter

when it has control of the situation which is being broadcast.

The majority decided that TV3 was entitled to refer to rule 1.4.2 of the Voluntary

Sports Code when considering the application of the footnote although it was not

raised by the complainants. In view of its heading – "Wearing of Apparel on

Television" – and its reference to game shows and as standard A3.d refers specifically

to the Voluntary Sports Code, the majority concluded that TV3 was entitled to follow

the guidance contained in the rule. The rule accepts that athletes can wear competition

apparel when they are appearing on official team duty. As the members of the

Warriors who appeared on Sale of the Century – other than the coach and captain –

were not individually named and as they participated together rather than as

individuals, the majority came to the conclusion that their appearance on Sale of the

Century was an official team duty.

Taking into account this conclusion along with the title by which the team was

referred to during the programme, and the apparent efforts to limit the shots which

focussed on the logos, the majority decided that, as the incidental liquor had been

minimised, standard A3 had not been breached.

The minority disagreed. As TV3 had control of the situation in which the Warriors

were seen, it regarded the provision in the footnote in standard A3 as being of

overriding importance. The broadcaster had total control of the situation and therefore

there is no qualification such as "minimising exposure to the best of their ability" and

no diminished responsibility. In these circumstances the broadcaster could well have

been party to a contract or arrangement where liquor promotion in the form of the

logos on the jerseys and large membership cards was a contrived part of the

programme. The minority regarded TV3's reference to rule 1.4.2 of the Voluntary

Sports Code as resorting to what might be considered a loophole. The use of the

loophole amounted to an evasion of the rule which the minority considered was an

inappropriate approach for broadcasters and sponsors to adopt. The footnote to

standard A3 requires broadcasters to ensure that the standards regarding incidental

promotions are followed in the spirit as well as in the letter when it has control of the

situation. The minority believed that this was a serious breach of the spirit of the

standards.

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

complaint.

The Authority states that it was never contemplated that "official team duties" would

include sports people wearing team playing gear participating in game shows in family

viewing time and gives notice that if the Voluntary Sports Code is not amended

immediately to ensure that this reason cannot be used again, it will take steps to

amend its own standards to prevent a recurrence of this nature.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
11 May 1995

Appendix I

Alcohol Healthwatch's Complaint to TV3 Network Services Ltd - 23 November 1994

Ms Cherry Morgan, Health Promotion Adviser for Alcohol Healthwatch, complained

to TV3 Network Services Ltd about the appearance of the Auckland Warrior rugby

league team in the promo for Sale of the Century and during the programme itself on 18

November.

Noting that the team members were wearing sports gear "emblazoned with DB Bitter

logos" and that there was promotion of the DB Bitter Warriors supporters club, Ms

Morgan wrote:

I believe this is a breach of Additional Standards A3 of the Code for Advertising

Liquor. The codes state that broadcasters will ensure that incidental promotion

is minimised and not be contrived. It is clearly a contrived situation and is

blatant incidental advertising promoting a beer brand using well known heroes of

the young.

She also expressed concern that team members wearing liquor logos on their sports

gear had featured each night on Sale of the Century during the preceding week.

TV3's Response to the Formal Complaint - 21 December 1994

TV3 began by pointing out that the programme complained about was broadcast

during a "Warriors Week" to publicise a prize for the Rugby League Winfield Cup

Grand Final and to promote the team. It continued:

As a team on official duty they wore their uniform which incorporates their

name and logo, namely the Auckland DB Bitter Warriors.

It also pointed out that the uniform had been approved by the appropriate sports and

advertising bodies, that the shots did not unduly focus on the logos and that the

backdrops did not contain liquor promotion. TV3 also referred to the Voluntary

Sports Code which accepted that athletes could wear team apparel on game shows

provided it was part of an official team duty.

In assessing whether the appearance of team members on Sale of the Century was an

official team duty, TV3 referred to the extensive number and range of functions the

players were participating in to promote the team,. It also pointed out that they

appeared on the show as hosts - not contestants - and maintained that their

appearance was an official team duty. It declined to uphold the complaint.

Alcohol Healthwatch's Complaint to the Broadcasting Standards Authority - 26

January

Dissatisfied with TV3's response, Ms Morgan on Alcohol Healthwatch's behalf

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

Broadcasting Act 1989. She was dissatisfied with TV3's decision as the broadcasts in

prime time involved the promotion of both the team and DB Bitter and was not an

official team duty.

In addition to the complaint that the broadcast breached standard A3, the Ms Morgan

maintained that it breached the saturation prohibition in standard A1. She

acknowledged that the letter of complaint had not specifically referred to this standard

but argued that it was implied by the reference to the appearance of the Warriors each

evening for a week.

TV3's Response to the Authority - 20 February 1994

In its report to the Authority, TV3 said that members of the Auckland Warriors had

appeared on the game show Sale of the Century on Friday 11 November and during the

following week 14 - 18 November. Repeating its explanation for the team's

appearance given to the complainant, TV3 maintained that the footage did not

"unduly focus" on the sponsor's logos and that as the team was an official duty, the

members were allowed by rule 1.4.2 of the Voluntary Sports Code to wear their

uniforms.

TV3 also quoted a recent article in the "Sunday Star Times" which described the

Warriors as a "national phenomenon" and wrote:

To suggest that the team was not on official duty as part of the Sale of the

Century programme one must take a very narrow view of professional sports

marketing. The Code of Broadcasting Practice sets out appropriate guidelines

for the exposure of liquor logos and uniforms. The Auckland Warriors players

uniforms comply with these guidelines. Therefore, any incidental exposure

cannot be considered contrived as per A3.a of the existing Code.

TV3 concluded:

On Sale of the Century, although the Auckland Warriors featured as a significant

part of the programme (over 14.5 minutes during the three hours of the

programming), the actual sponsors logo was visible for only about 2% of this

time as the producer was careful to minimise the incidental exposure. For these

reasons, the complaint was not upheld as the exposure is within the guidelines

of A3 and Section 1 of the Voluntary Sports Code.

Alcohol Healthwatch's Final Comment to the Authority - 3 March 1995

When asked to comment on TV3's reply, on behalf of Alcohol Healthwatch Ms

Morgan noted that the complaint referred to the broadcast of Sale of the Century on

Friday November 18.

Ms Morgan pointed out that the newspaper article which referred to the Warriors as a

phenomenon, added that it was such because of its marketing machine which never

passed an opportunity for publicity. She continued:

The use of television programming, in this case an entire week of the (DB Bitter)

Warriors on Sale of the Century, is yet another example of the "never miss an

opportunity for publicity".

Referring to the requirements in standard A3 both to minimise the incidental

promotion of liquor and to follow the standards in spirit when a broadcaster had

control of the situation, Ms Morgan wrote:

The Warriors' appearance on Sale of the Century was an organised exercise and I

understand the programme is pre-recorded. The Broadcasters had complete

control of the programme and have not ensured that liquor promotion was

minimised. The programme included extensive coverage of DB Bitter logos on

clothing and large membership cards presented to the hosts of the programme

also featured prominent DB Bitter logos.

Arguing that promotion of the team could have occurred without the promotion of

alcohol if the logos had been eliminated on a family oriented programme, Ms Morgan

said that the amount of liquor promotion, rather than being minimised, had involved

saturation.

Appendix II

Health Action - Nelson's Complaint to TV3 Network Services Ltd - 17

November 1994

Ms Liz McPherson, Health Promotion Adviser for Health Action in Nelson,

complained to TV3 Network Services Ltd about the programme Sale of the Century

which is broadcast each week from Monday to Friday between 7.00 - 7.30pm.

She believed standard A3 of the Promotion of Liquor standards had been breached

during the broadcast on Monday 14 November and the following days of the week as:

The show contained segments of incidental promotion of liquor as a contrived

part of the programme by including members of the Auckland Warriors rugby

team with DB Bitter logos on the front and back of their sweatshirts.

TV3's Response to the Formal Complaint - 21 December 1994

Referring to standard A3 under which the complaint about the show during the week

14 - 18 November had been assessed, TV3 wrote:

The programme you complain about was part of our special WARRIORS

WEEK where the Auckland Warriors appeared on the show in official capacity

as "the Auckland Warriors" Team to publicise a special prize of the Rugby

League Grand Final Tour and to promote the Auckland Warriors team which

enters the New South Wales Rugby League Winfield Cup competition next year.

As a team on official duty they wore their uniform which incorporates their

name and logo, namely the Auckland DB Bitter Warriors.

TV3 then pointed out that the uniforms had been approved by the appropriate sports

bodies, that the backdrops did not contain liquor promotion and that the shots of the

players did not unduly focus on the logos. TV3 also noted that rules 1.4.2 and 2.f of

the Voluntary Sports Code accepted that athletes could wear official team apparel on

game shows provided that the appearance was an official team duty.

As to whether the appearances on Sale of the Century was an official team duty, TV3

pointed out that publicity was the reason for the appearances and it listed a number of

other official functions in November at which the team had also appeared in uniform.

Declining to uphold the complaint, TV3 concluded:

These [other] appearances were not broadcast functions, however, it illustrates

the principle that it is quite common for the team to appear in uniform at official

team duties and that these team duties are aimed at generating public awareness

about the upcoming season.

Health Action's Complaint to the Broadcasting Standards Authority - 7

February 1995

Dissatisfied with TV3's response, on behalf of Health Action Ms McPherson referred

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

Broadcasting Act 1989.

Pointing out that members of the Auckland Warriors team members wearing uniforms

had been extensively involved in modelling prizes, Ms McPherson said that they were

"a very visible and significant part of the programme". She maintained that the

broadcasts had breached the standard as incidental liquor promotion had occurred in a

programme over which TV3 had control. She also emphasised the aspect of standard

A3 which requires broadcasters, when they have control of the situation, to follow the

standards in the spirit as well as the letter.

TV3's Response to the Authority - 20 February 1995