BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld a complaint that an item on Fair Go breached the accuracy and fairness standards. The item investigated a mother’s concerns following her son getting severe sunburn despite applying Banana Boat SPF50 sunscreen, and more broadly how sunscreens are tested under New Zealand regulations, and whether the public should be able to rely on claims on sunscreen labels. The Authority found the mother’s comments were clearly her opinion, to which the accuracy standard did not apply, and the programme was not otherwise inaccurate or misleading. The programme did not allege Banana Boat sunscreen does not work, nor that it does not comply with regulatory requirements. The complainant, as the company responsible for Banana Boat, was given a fair and reasonable opportunity to comment in response to issues raised in the story and its response was fairly presented.

Not Upheld: Accuracy, Fairness

The broadcast

[1]  An item on Fair Go, broadcast on 22 March 2021 on TVNZ 1, investigated a mother’s concerns following her son getting severe sunburn despite applying Banana Boat SPF50 sunscreen. It also looked more broadly at how sunscreens are tested under New Zealand regulations, and whether the public should be able to rely on claims on sunscreen labels. The item included comments from Edgewell Personal Care (the company responsible for Banana Boat) and the CEO of the Cancer Society:

Reporter:            We asked Banana Boat why four applications of its 50+ sunscreen, both at home and at the beach, didn’t stop [the boy] getting fried. It’s seen the damage and says it’s very sorry, but…

Voiceover:          [from Banana Boat’s statement] …based on our experience, a leading cause of sunburn is not using enough product. Sunscreen is only one part of a combination of actions people must take. No sunscreen products provide 100 percent protection from the sun.

Reporter:            The company’s standing by its product’s SPF, telling Fair Go it undergoes rigorous testing and complies with all the regulations…But you may be surprised how SPF testing is carried out and how often manufacturers are required to test their products. The internationally accepted test is for a person covered in sunscreen sitting in a spa pool for up to four hours. They’re then put in front of a UV lamp to see how long it takes for their skin to burn. This testing is conducted on a sample size of 10 people with a variety of skin types and must be carried out every seven years.

                                                …

Cancer Society: The claims on the bottles are accurate in terms of how they tested…I just think it’s a misunderstanding of what that means.

Reporter:            Banana Boat confirms its testing is thorough and meets the regulatory requirements of the Australian and New Zealand Sunscreen Standard, along with the New Zealand Cosmetics Standard and Fair Trading Act.

Cancer Society: So I'm really disappointed to tell you that New Zealand’s sunscreen regulation is, I think, below par.

[2]  The item concluded with hosts giving general advice on how to apply sunscreen and recourse options if someone is dissatisfied with how a sunscreen performs.

Summary of the complaint and the broadcaster’s response

[3]  Edgewell Personal Care complained the item was misleading with respect to Banana Boat sunscreen (including stating and/or implying it doesn’t work or is not fit for purpose) and may discourage use of sunscreen generally: ‘the inaccuracies…will have serious negative consequences for the public health of New Zealand consumers and particularly children, if confidence in sunscreen is diminished.’ It also alleged the item failed ‘to accurately acknowledge Edgewell’s position and its compliance with both local and Australian laws in respect of compliance with sunscreen testing and labelling’.

[4]  TVNZ did not uphold the complaint and provided a comprehensive response in relation to the accuracy and fairness standards. It did not agree the programme ‘gave the impression that Banana Boat sunscreen does not work’, noting ‘the story was limited to the experience of one child’ and a statement from the complainant was included in the broadcast which explained why the child may have been burned. The programme explained ‘while sunscreen is an important facet of a responsible sun protection regime, it cannot be relied upon on its own’. Additionally, there was ‘a high level of public interest in the issues examined’.

[5]  The parties’ submissions are included in more detail as part of our analysis below.

The standards

[6]  The purpose of the accuracy standard¹ is to protect the public from being significantly misinformed.² It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[7]  The fairness standard³ requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.⁴ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[8]  We have watched the broadcast and read the correspondence listed in the Appendix.

[9]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. Our task is to weigh the right to freedom of expression, and the level of public interest, against the harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.

[10]  For the reasons below we have not found such harm in this case.

Accuracy

Parties’ submissions

[11]  Edgewell alleged the programme gave the impression Banana Boat sunscreen ‘does not work; and/or does not comply with proper testing standards’, as ‘the voice-over cherry-picked’ from Edgewell’s statement and ‘omitted key sections’, in breach of the accuracy standard. Its specific arguments follow, with TVNZ’s responses to each:

• ‘BANANA BOAT® sunscreen undergoes rigorous internal and independent, third-party testing, including compliance with the Standard as well as being tested under the supervision of dermatologists for Phototoxicity and Photoallergy.’
  • TVNZ: ‘The Programme explained that Banana Boat meets the applicable testing and compliance standards.’
• ‘Edgewell investigates all customer incidents thoroughly. The health and wellbeing of consumers is a number one priority and all incidents like [the boy in the item] are taken extremely seriously.’
  • TVNZ: ‘The Programme did not suggest that Edgewell does not investigate complaints.’
• ‘It is also important that consumers understand how to apply sunscreen correctly – as the identified BANANA BOAT® product is labelled: apply generously; apply 20 minutes before you go outside or in the water, so it has time to absorb properly; and reapply at least every two hours.’
  • TVNZ: ‘This information was included in the back-announce at the end of the Programme: “When it comes to applying sunscreen, you need to put it on at least twenty minutes before you go outside. You actually need to do that; it doesn’t just say that for fun. You should put at least a teaspoon of sunscreen on each limb and reapply after being in the water”’
• ‘Edgewell strongly advises that consumers and their children always wear protective clothing, hats and eyewear, in and out of the water.’
  • TVNZ: ‘This information was included in the Programme.’

Our decision

[12]  Audiences may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme as a whole.⁵ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.⁶ The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁷

[13]  On watching the programme, we did not agree it would have left viewers with the impression Banana Boat sunscreen does not work or does not meet regulatory standards. While the programme discussed one family’s experience with Banana Boat, it broadened its enquiry to sunscreen regulations generally. This carried high public interest. The item accurately reported Banana Boat’s statement that it meets sunscreen regulations; but the programme also raised a question of whether those sunscreen regulations are fit for purpose. Viewers would have understood this is an issue which goes beyond an individual product or company.

[14]  We did not consider there to be any material inaccuracies in the programme, for the following reasons:

• The comments from the family, particularly the mother, about her son were comment and opinion on the efficacy of the Banana Boat sunscreen, clearly based on their personal experience, to which the accuracy standard does not apply (under guideline 9a).
• As noted by TVNZ, the programme was clear that ‘while sunscreen is an important facet of a responsible sun protection regime, it cannot be relied upon on its own and should be used as part of a suite of sun protection measures’. This did not amount to an allegation that Banana Boat sunscreen does not work, and was consistent with Edgewell’s own statement.
• The programme did not allege Banana Boat does not comply with sunscreen testing standards or the overarching regulatory regime in New Zealand. It contained statements from Banana Boat that ‘it undergoes rigorous testing and complies with all the regulations’, and from the CEO of the Cancer Society confirming ‘The claims on the bottles are accurate in terms of how they tested…’
• The ‘key sections’ from Edgewell’s statement alleged to have been left out, were not in our view ‘key’ pieces of information or material to viewers’ understanding overall. As outlined by TVNZ in its decision on the complaint, the way the statement was edited was reasonable and would not have misled viewers:
  
  The “omitted key sections”…were not material to viewer understanding of the substance of the statement…They were omitted as part of the editing process, in the interests of rendering the statement sufficiently concise for broadcast purposes. Statements included in news, factual and current affairs programmes are frequently edited for brevity. Often this is necessary given the inherent time constraints. It is unusual for statements to be included in their entirety, unless there is a persuasive reason to do so, which there was not in this case.

[15]  We therefore have not found harm under the accuracy standard that justifies regulatory intervention or limiting the right to freedom of expression. We do not uphold the accuracy complaint.

Fairness

Parties’ submissions

[16]  Although not explicitly raised by Edgewell in its complaint, TVNZ noted Edgewell raised concerns appropriately addressed by the fairness standard, and also responded under this standard:⁸

There was the potential for Edgewell to have been adversely affected by the Programme, and therefore Edgewell was given a fair and reasonable opportunity to comment for the Programme…the tenor of Edgewell’s views [was] fairly reflected in the edited excerpts from its statement and other relevant material.

Our decision

[17]  A consideration of whether Edgewell was treated fairly includes consideration of:⁹

• the nature of the programme (eg news, current affairs or factual programming, as opposed to comedic or satirical programmes)
• whether the audience would have been left with an unduly negative impression of the organisation
• whether the organisation was adequately informed of the nature of its involvement in the programme, and given a reasonable opportunity to comment
• the nature of the organisation
• whether any critical comments were aimed at people in their business or professional life or in their personal life
• the public significance of the broadcast and its value in terms of free speech.

[18]  Applying these factors and our reasons in paragraphs [13]-[14], we are satisfied Edgewell was not treated unfairly:

• While the broadcast portrayed one consumer’s negative experience with Banana Boat, it did not allege Banana Boat does not work when used correctly, along with other sun protection measures.
• The item also focused more broadly on criticism of sunscreen regulations generally, which it noted Edgewell complied with.
• Sunscreens have been a regular media topic over several years and viewers are well aware of issues and discussion associated with them.¹⁰
• Edgewell was given a fair and reasonable opportunity to comment, and its response was adequately included in the programme.
• Overall the item was very measured in its presentation and included a range of perspectives enabling viewers to consider and form their own views on the issues raised.
• Viewers would not have been left with an unduly negative impression of Edgewell or Banana Boat.
• Edgewell is a business capable of responding appropriately to media enquiries (and did so in this case).
• The item carried public interest by highlighting a legitimate issue for consumers and providing general advice on sun safety and options for recourse if consumers were unsatisfied with how a sunscreen performed.

[19]  We have not found any harm under the fairness standard which justifies limiting free expression, and we therefore do not uphold this part of the complaint.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Acting Chair
15 September 2021    

Appendix

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

1  Edgewell Personal Care’s complaint to TVNZ – 8 April 2021

2  TVNZ legal counsel’s response regarding the Fair Trading Act – 21 May 2021

3  Edgewell’s response – 28 May 2021

4  TVNZ’s decision on the broadcasting standards complaint – 18 June 2021

5  Edgewell’s referral to the Authority – 14 July 2021

6  TVNZ’s confirmation of no further comments – 19 July 2021

¹ Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁶ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
⁷ Guideline 9a
⁸ Referring to guidelines 11d and 11f
⁹ As above
¹⁰ See for example, “Ministry of Health says regulation of sunscreen SPF is coming, but has been delayed by Covid-19” 1 News (online ed, 9 December 2020); Miriam Bell “Five out of ten sunscreens don't meet SPF claims - Consumer NZ” Stuff (online ed, 7 December 2020); “Nine sunscreen brands fail protection tests - Consumer NZ” RNZ (online ed, 21 November 2019); Kim Moodie “Almost half of sunscreens tested don't live up to label claims in Consumer NZ report” NZ Herald (online ed, 21 November 2019)