BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
5 o’clock with Jude Dobson – naturopath promoted soy products as being efficacious for menopausal women – unbalanced – inaccurate

Findings
Advertising programme within the meaning of s.2 of the Broadcasting Act 1989 and therefore not within the Authority’s jurisdiction – decline to determine

This headnote does not form part of the decision.

---

Summary

During an item on 5 o’clock with Jude Dobson broadcast on TV One on 4 July 2000, a guest promoted the use of Blackmore’s soy products as being healthy and offering relief against menopausal symptoms. A second 5 o’clock with Jude Dobson programme, broadcast on 6 July referred to a soy-based product.

Richard James complained to Television New Zealand Ltd that the programmes were deceiving to viewers as they were actually a commercial promotion, and that it was inaccurate to claim that soy products had a palliative effect on menopausal symptoms. He also complained that the programmes failed to reveal the risk of adverse effects of consuming soy products.

As Mr James identified his complaint as an informal complaint, TVNZ provided only an informal response. When Mr James referred the matter to the Authority for review, TVNZ advised that it did not satisfy the Broadcasting Act’s definition of a formal complaint. The Authority put this to Mr James for comment, and he asserted that the fact that the complaint was in writing was sufficient to comply. The Authority then sought comments from TVNZ on the substantive issues. In its response, TVNZ contended that it was quite clear that various segments of the programme were paid for by the companies concerned, and noted that the editorial content was selected to meet the requirements of sponsorship.

For the reasons given below, the Authority declines to determine the complaints.

Decision

The members of the Authority have viewed tapes of the items complained about and have read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaints without a formal hearing.

Soy products were promoted during a segment of 5 o’clock with Jude Dobson broadcast on 4 and 6 July 2000 on TV One. The host interviewed a person who claimed that soy supplements offered relief for menopausal women. It was claimed that Japanese women, who had a high consumption of isoflavones contained in soy products, had few adverse symptoms of menopause.

4 July programme

Richard James complained to TVNZ that the use of programme time by the maker of a dietary supplement amounted to a commercial promotion. He also complained that the promotion was untruthful when it promoted soy isoflavones as having a palliative effect on menopausal symptoms. He maintained that there was no research to support those claims, and much to refute them. In his view, the manufacturer was deliberately misleading viewers.

Mr James complained that the interviewee misrepresented the statistics about Japanese consumption of soy. He said that their consumption was nowhere near the 50mg/day claimed, which he contended was a 500% overstatement. His next ground of complaint was that the programme failed to reveal the risk of adverse effects of soy consumption. He noted that a consumption rate of 50mg/day had been shown by the US Government’s Toxicological Research Centre to cause thyroid damage. In his opinion, that should have been revealed in the item.

In addition, Mr James complained that in his opinion, this item had been a blatant and cynical attempt by the manufacturers to use editorial time for spreading propaganda.

In Mr James’s view, the only form of redress was to permit equal time on the same programme to allow "correct science" to be presented by scientists who were not commercially motivated. He explained that he was making an informal complaint at this stage, but that if it were not responded to satisfactorily by TVNZ, he would refer it to the Authority.

TVNZ responded by advising Mr James that the opportunity to refer a complaint to the Authority arose if a complainant was dissatisfied with a broadcaster’s formal response to a complaint. It noted that an informal complaint could not be referred to the Authority because it had not been passed through the broadcaster’s formal complaints procedure.

Mr James then referred the matter to the Authority. He repeated his contention that the format was misleading and designed to deceive "a very sensitive class of viewers". In his opinion, TVNZ had an absolute duty of care and responsibility to its viewers, especially in matters of health. He provided some documentary evidence in support of his complaint which he noted showed that soy products did not achieve the claimed beneficial effects, and further that they had serious adverse effects on health.

Mr James expressed his view that it was "totally shocking" that TVNZ handed over editorial control of programmes about health to outside parties and was therefore not in a position to respond itself to very serious complaints. He emphasised his dissatisfaction with TVNZ’s conduct in its dealings with the company promoting the products.

6 July programme

A segment of 5 o’clock with Jude Dobson broadcast on 6 July promoted a product called Phytolife which contains phytoestrogens said to offer menopausal relief.

Mr James complained that the segment was "blatantly commercial" and that the broadcaster breached the Medicines Act and the Fair Trading Act by broadcasting the promotion. He referred to the decision of an Australian body charged with regulating the advertising of therapeutic products which had concluded that it was "misleading conduct" to represent that goods had performance characteristics which they did not have. Mr James said that in Australia, such conduct was deemed to be a "particularly serious breach of the standards expected in advertising therapeutic goods to consumers".

Mr James also complained that the item lacked balance, in that it failed to represent truthfully the known science at the time of the broadcast, and that TVNZ had "quite deliberately" broadcast material that it knew to be in breach of the Medicines Act.

In addition, Mr James maintained that the programme had been fraudulent in not revealing the medically proven risks of health damage which had been publicised by US Government laboratories. He appended some scientific reports to support his views.

As TVNZ did not respond to this complaint, Mr James referred it to the Authority for review.

TVNZ's Response to the Complaints

TVNZ advised the Authority that it had not responded to the complaints because they were expressly designated as informal complaints. It noted that it had advised Mr James of its position on this point. In its submission, Mr James, having opted to have the matter treated informally could not later refer it to the Authority for review.

TVNZ arranged for the programme’s producer to respond to Mr James’s complaint. It provided a copy of the letter to the Authority in which the producer denied that incorrect product claims had been made, or that the information presented had been untruthful and in breach of the Medicines Act and the Fair Trading Act. To the claim that TVNZ had failed to represent the known science at the time of the broadcast, the producer said that there had been considerable debate on the properties of plant-based estrogens, and to his knowledge there was no legislation in New Zealand which categorised phytoestrogens as illegal or harmful. Responding to Mr James’s point that the programme was fraudulent in not revealing medically proven risks of health damage, the producer said his understanding was that the findings of the US Government agencies did not have a legal status in this country. In summary, he reiterated that the company did not knowingly or willingly present information that was illegal, untruthful or incorrect. The producer said he would work to ensure that the programme presented information that was helpful to its viewers.

Responding to the criticism of the manner in which the complaints had been dealt with, TVNZ assured the Authority that it had in place a robust system which was in compliance with the Broadcasting Act.

Mr James’s Further Referral

Upon receipt of TVNZ’s response, Mr James replied that in his view TVNZ had breached s.4(1)(d) of the Broadcasting Act by not providing balance. He objected to the response from the programme’s producer, pointing out that the producer was not the broadcaster and should not be writing directly to a complainant.

When Mr James was asked to comment on TVNZ’s claim that his complaints had not been dealt with as formal complaints and therefore could not be referred to the Authority, he responded that was "nonsense". He pointed to the Act’s requirement for dealing with complaints "without undue formality" (Section 5). He submitted that both of his complaints had fully complied with the Act, and as they were not answered satisfactorily by TVNZ, they had been referred to the Authority.

TVNZ’s Further Response

The Authority sought TVNZ’s view on the status of the complaints, on the basis that it was:

…inclined to the view that TVNZ’s strict interpretation of the provisions of the Act can be seen as inconsistent with the principles of sections 5 and 10, which emphasise the lack of formality of the complaints process.

TVNZ responded that it wished to place on record that it strongly disagreed with the Authority’s decision to accept a referral which had not passed through its formal complaints process.

TVNZ submitted that it seemed to be an oxymoron to suggest that a formal complaint should be dealt with "without undue formality". It considered that for the Authority to accept the referral would establish an unfortunate precedent, especially as Mr James had specified in his complaints that they were to be regarded as informal. It noted further that Mr James was notified at the time of lodging the first complaint that it was not able to be referred to the Authority because of its informal status.

The broadcaster acknowledged that Mr James’s complaints did relate to alleged breaches of broadcasting standards, but said it did not consider that was sufficient reason to allow the complainant to bypass the broadcaster’s formal complaints process. It advised that it reserved its legal rights if the Authority proceeded to consider the complaints as referrals within the meaning of s.8 of the Broadcasting Act.

In addition, TVNZ submitted that the questions raised pertained principally to matters not raised in the Codes of Broadcasting Practice, including the debate over what constituted advertising.

Notwithstanding its view that the complainant had bypassed its formal complaints process, TVNZ provided a response on the substantive issues. It began by noting that 5 o’clock with Jude Dobson was transparently a sponsored programme, pointing out that various segments within it were quite obviously paid for by the companies concerned, and the editorial content was selected to meet the requirements of sponsorship.

The logo of one of the major sponsors, Blackmores, was shown at several points during the programme, it noted, especially at the beginning of the segment in which its products were promoted. It submitted:

So transparent is the presentation, and so heavy the emphasis on the branded products, that we do not believe that any viewer is misled about what they are watching.

Turning to the complaint about the 4 July programme, TVNZ rejected the assertion that it had been "a commercial promotion in disguise", noting that even the interview subject had been identified as a "Blackmores’ naturopath".

As for the complaint that the programme lacked truth, TVNZ said it declined to get into a scientific argument about whether or not the products had a palliative effect on menopausal symptoms. In its view, this was not relevant when the products were legally marketed.

To Mr James’s further arguments, TVNZ responded that they were irrelevant when it had already been noted that this was a sponsored programme in which sponsors promoted legally marketed products.

It advised that its response to the second complaint was similar to the first, and repeated its view that the programme was transparently a sponsored programme with the sponsors having an opportunity to promote their products in a context which was not in any way misleading.

Mr James’s Further Comment

In a further letter, Mr James complained about TVNZ’s procedures, which he contended were "variable, even capricious and arbitrary". He noted that nowhere in the Act was there any procedure termed "informal complaint".

He suggested that the Authority should, of its own initiative and pursuant to s.21(1)(d) of the Act, produce an Advisory Opinion outlining a procedure for broadcasters to deal with complaints. In doing so, he suggested the Authority should be mindful that complainants were often individual citizens without the information and resources to protect against improper conduct.

Mr James then outlined a history of his dealings with TVNZ over a programme which he said could provide another view on the consumption of soy products.

Mr James’s brief final comment was that in his view, there was no such thing in the Broadcasting Act as an informal complaint. He maintained that if a complaint was in writing then it was a formal complaint.

The Authority’s Findings

The issue for the Authority is whether the programmes complained about are "advertising programmes" within the meaning of s.2 of the Broadcasting Act 1989. If they are, then the Authority has no jurisdiction to deal with the complaints. If not, the Authority can turn to consider whether the programmes breached broadcasting standards.

When the Authority first dealt with these complaints, it concluded that they were advertising programmes under s.2 of the Broadcasting Act, and therefore not within its jurisdiction. It therefore submitted them to the Advertising Standards Complaints Board for investigation. Mr James advised the ASCB that he did not submit to its jurisdiction, and the matter was referred back to the Authority. The Authority then sought assistance from the parties to determine the jurisdictional point. It asked Mr James and TVNZ to assist it in establishing whether the programme material which followed the credit placement by the sponsor satisfied the Act’s definition of an advertising programme.

Subsequently, the Authority received those submissions. Mr James argued that the segments complained about were "programmes" within the meaning of the Act, and that under s.4(1)(d), the broadcaster had an obligation to make a reasonable effort to present significant points of view when dealing with controversial issues. He claimed that TVNZ had evidence that the claims made by the advertiser on 5 o’clock with Jude Dobson were untrue, misleading and potentially harmful to the target audience. He also argued that the average viewer would have understood the segments to be part of a programme because "it was divided into segments which were interrupted by separate easily identified advertising slots, as in most other viewing times."

In addition, Mr James argued that the promotion of soy products in the programme was in violation of the principles of the Code of Health and Disability Services Consumers’ Rights, the International Code of Advertising Practice and the Fair Trading Act. He criticised what he perceived to be a deliberate policy on the part of TVNZ to withhold "the truth about soy products". He said that all he sought was equal time to put before the public "honest and balanced presentation of fact and divergent opinions". In his view, the right of the public to fair treatment was the very crux of the issue. Mr James provided a number of attachments in support of his claims.

In its submission, TVNZ described the programme segments as "sponsored programmes". In its view, they:

…transparently involve the promotion of services and goods offered by named and clearly identifiable commercial sponsors. In the case of the complaint from Mr James, the sponsor is Blackmores – the principal sponsor of 5 o’clock with Jude Dobson.

TVNZ stressed that the programmes differed from routine advertisements or infomercials in that the final decision on content was that of the programme maker, and not the advertiser. However, it acknowledged that it was true that the programmes paid for by sponsors presented the products of those sponsors in a favourable light.

Referring to the Act’s definition of an advertising programme, TVNZ submitted that the Blackmores segment was intended to promote the company’s products according to that definition. It advised that the commercial arrangement for 5 o’clock with Jude Dobson was not one in which a sponsorship credit was involved (according to the definition in paragraph (b) below). It acknowledged that this was a "grey" area.

The Authority has considered carefully these submissions. It has also considered carefully the definition of "advertising programmes" in s.2 of the Broadcasting Act. It is the Authority’s view that the interpretation of this section is at the heart of its consideration on this complaint. The Interpretation section provides:

     2.    "Advertising programme" 
            (a)    Means a programme or part of a programme that
                    (i)  Is primarily intended to promote –
                          (A) The interest of any person; or
                          (B)  Any product or service for the commercial advantage of any person; and
                    (ii) Is a programme or a part of a programme for which payment is made, whether in money
                        or otherwise; and

            (b)    Includes a credit in respect of a sponsorship underwriting arrangement, being a credit that
                    (i)  Is intended to promote any of the matters specified in paragraph (a)(i) of the definition;
                    and
                    (ii) Is a credit for which payment is made whether in money or otherwise; but

            (c)     Does not include programme material that is the subject of a credit to which paragraph (b)
                     of the definition applies; and

            (d)     Does not include any programme or credit of the kind described in paragraph (a) or
                     paragraph (b) of this definition
                    (i)  That promotes a scheduled programme on behalf of a broadcaster; or
                    (ii) That promotes only a station identity on behalf of a broadcaster; or
                    (iii) That constitutes an election programme.

The question for the Authority is whether, under this definition, the segments complained about are advertisements. If they are advertisements, they do not come under the Authority’s jurisdiction. If they are not advertisements, then it is for the Authority to consider whether they comply with the balance requirement of s.4(1)(d) of the Broadcasting Act.

Upon a close analysis of the intepretation section, the Authority concludes that the Blackmores segments satisfy the definition of an advertising programme under paragraphs (a) (i) and (ii) because they are programmes which are primarily intended to promote a product, for which payment is made. The question then is whether they constitute "programme material" to which the exemption in paragraph (c) applies. The Authority notes that this exemption refers to "programme material" which is the subject of a credit to which paragraph (b) applies. In practice, the Authority is aware of programmes which have a major sponsor who underwrites the programme, but where the programme content is unrelated to the sponsor or its products (eg Holmes, Montana Sunday Theatre). In the Authority’s view, it is this kind of programme which the exemption in paragraph (c) is intended to cover. The programme material contained in these programmes is not an advertising programme within the meaning of the Act.

The Authority acknowledges that it has had difficulty ascertaining the precise ambit of the exemption to "advertising programme" in paragraph (c). The kind of programme it is considering on this occasion – which is the subject of a credit under paragraph (b), but is also promotional material in itself – appears to be distinguishable from the examples given above. What creates the "grey area" in relation to this complaint is that the advertiser was not only a sponsor or underwriter of the programme but it also promoted its products in the programme. However, according to TVNZ the advertiser had no influence on the programme content. In addition, the programme segments in which the advertiser was named and its products referred to were presented under the auspices of an apparently neutral host, and had the appearance of being part of the programme. The programme segments were also separated by clearly distinct advertising blocks.

However, the Authority must interpret the statute as it is written. The programmes complained about are clearly "primarily intended to promote" Blackmores’ products and in its view fall within the definition of an advertising programme in paragraph (a).

In addition, the Authority does not consider this programme material is specifically exempt from the meaning of "advertising programme" under paragraph (c) of the interpretation section.

Having reached this conclusion, the Authority determines that the programmes are advertising programmes and that it does not have jurisdiction to determine complaints about them. Accordingly, under s.11(b) of the Broadcasting Act 1989, it declines to determine the complaints.

Finally, the Authority refers to its Decision No: 2000-148, dated 16 September 1999, in which a similar issue was discussed. There it signalled that, when next revised, the Television Code of Broadcasting Practice should include a provision similar to the following two standards.

The first is guideline 7f from the Radio Code of Broadcasting Practice, which reads:

7f   Advertisements and infomercials shall be clearly distinguishable from other programme material.

The second is Rule 1 of the Advertising Code of Ethics which states:

1. Identification – Advertisements should be clearly distinguishable as such, whatever the form and whatever the medium used; when an advertisement appears in a medium which contains news or editorial matters it must be presented so that it is readily recognised as an advertisement.

The process of revision of the Television Code of Broadcasting Practice is currently in progress. These matters are before broadcasters and the Authority in that context.

For the reasons given, the Authority declines to determine the complaints.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
7 December 2000

Appendix I

(4 July item)

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

1. Richard James’s Complaint to Television New Zealand Ltd – 5 July 2000 (plus attachments)
2. TVNZ’s Informal Response to the Complaint – 17 July 2000
3. Mr James’s Referral to the Broadcasting Standards Authority – 4 August 2000
4. TVNZ’s Response to the Authority – 10 August 2000 (plus attachments)
5. Mr James’s Final Comment – 14 August 2000
6. Mr James’s Further Comment – 23 August, 30 August, 31 August, 3 September (3), 6 September
   (plus attachments)
7. TVNZ’s Further Comment – 8 September 2000
8. Mr James’s Further Comment – 8 September, 10 September, 22 September 2000 (plus attachments), 22 September, 23 September (2), 29 September (2), 30 September (2), 1 October, 1 and 2 October (2) (from Mrs James), 2 October (2), 3 October (2) (plus attachments), 6 October, 7 October (plus attachments), 10 October (2) (plus attachments), 16 October (plus attachments), 17 October (from Mrs James), 22 October (plus attachments)
9. Mr James’s Submission on the Jurisdictional point – 4 November 2000 (plus attachments)
10. TVNZ’s Submission on the Jurisdictional point – 6 November 2000

Appendix II

(6 July item)

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

1. Richard James’s Complaint to Television New Zealand Ltd – 15 July 2000 (plus attachments)
2. Mr James’s Referral to the Broadcasting Standards Authority – 17 August 2000
3. TVNZ’s Response to the Complaint – 6 September 2000
4. Further correspondence as above