BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Family Health Diary – item broadcast during One News – included comment that high blood cholesterol was a risk factor in heart disease – followed by claim that a product called "Logicol" could reduce cholesterol absorption – medical information – unbalanced and inaccurate

Findings
Family Health Diary is advertising programme – decline to determine

This headnote does not form part of the decision.

Summary

[1] A promotion for the product "Logicol" was included in the "Family Health Diary" broadcast on TV One during One News between 6.00–7.00pm on 27 September 2001.

[2] Mr James complained to Television New Zealand Ltd, the broadcaster, that the item included medical information which was unbalanced and inaccurate.

[3] As TVNZ said that the "Family Health Diary" was an advertising programme put together by Brand World, it referred the complaint to the Advertising Standards Complaints Board for determination.

[4] Because he insisted the item was a programme, not advertising material, Mr James was dissatisfied with TVNZ’s decision. He referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority concludes that the item was an advertising programme and declines to determine the complaint.

Decision

[5] The members of the Authority have viewed a tape of the programme Family Health Diary and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] A reference to a product named "Logicol" was screened during the "Family Health Diary" broadcast during One News on TV One on 27 September 2001. The presenter claimed that high blood cholesterol was a major risk factor for heart disease and that "Logicol" could help lower cholesterol absorption.

The Complaint

[7] Mr James complained to TVNZ that the proposition that high cholesterol leads to heart attacks was a matter of medical controversy. He enclosed a transcript of an interview on Radio New Zealand’s National Radio with the head of the Cardiology Unit at Christchurch Hospital which gave a contrary perspective to that in the "Family Health Diary". Accordingly, Mr James complained, the "Family Health Diary" was unbalanced.

The Broadcaster’s Response

[8] On the basis that the item complained about was considered to be an advertising programme, and not a news item, TVNZ forwarded the complaint to the Advertising Standards Complaints Board (ASCB).

The Advertising Standards Complaints Board’s Decision

[9] The ASCB dealt with the complaint in Chairman’s Ruling 01/279 dated 29 October 2001. The Chairman of the ASCB stated that the item involved the product promotion of "Logicol" and was clearly an advertisement. He referred to earlier decisions which had dealt with issues similar to those raised in the current complaint. As those decisions (01/87 and 01/199 – both dated 11 September 2001) had not upheld the complaints, the Chairman ruled that the same conclusion applied to Mr James’ complaint and he declined to accept the present complaint.

[10] Mr James was notified accordingly.

The Complainant’s Response to the Broadcaster’s Decision

[11] On being advised by TVNZ that it had referred his complaint to the ASCB, Mr James complained to the Broadcasting Standards Authority on the basis that TVNZ had refused to accept his complaint. He wrote:

My formal complaint about what is clearly programming that makes untrue health recommendations, and dietary advice has not been considered by them.

The Broadcaster’s Response to the Authority

[12] TVNZ advised the Authority that Mr James had complained about an advertisement made by an organisation called "Brand World" which combined advertising for a number of products into a single advertising spot. It had not, it reported, refused to accept the complaint. Rather, it had directed the complaint to the organisation empowered to deal with it.

The Complainant’s Response to the Authority

[13] Mr James maintained that the material was not an advertisement. The programme had been broadcast during One News and as the Heart Foundation was running an appeal for donations at the time, Mr James argued:

The Heart Foundation’s presence in that programme gave the impression that it was a public service news item endorsed for a publicly profiled charity. Four of us saw that item, all have University degrees, and not one of us could believe that the Heart Foundation would endorse an advertisement.

[14] In later correspondence, Mr James contended that the item was a "hybrid programme", where commercial messages were disguised. He maintained that the item should be assessed under the broadcaster standards relating to accuracy and balance.

The Authority’s Determination

[15] The complainant considered that the item "Family Health Dairy", broadcast during One News on 27 September 2001, was a news item. He complained to TVNZ. On the basis that the item was advertising material, TVNZ referred the complaint to the Advertising Standards Complaints Board (ASCB) for determination.

[16] The complainant referred TVNZ’s action to the Authority. He argued that the contents of the "Family Health Diary" was unbalanced and in breach of the broadcasting standards.

[17] The Authority’s first step is to determine whether the "Family Health Diary" is a news item or advertising material. If it decides it is a news item, the balance requirement in the broadcasting standard is relevant: if it decides that it is advertising material, then advertising standards applied by the ASCB are applicable.

[18] The Broadcasting Act (s.2) defines an "Advertising Programme" as:

(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 or underwriting arrangement, being a credit that –

(i) Is intended to promote any of the matters specified in paragraph (a) (i) of this 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 this 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.

[19] The Authority concludes that the "Family Health Diary" is an "Advertising Programme". Its conclusion is based on the following points:

• the "Family Health Diary" was screened during a commercial break;
• it was primarily intended to promote commercial products for commercial advantage. The products promoted were Logicol, Golden Canola Oil, and the breakfast cereal Light and Tasty;
• it included commercial symbolism and imagery such as product icons, telephone numbers, product endorsement and photographs of products displaying brand names; and
• TVNZ has advised that it was paid to screen "Family Health Diary".

[20] Under s.8(3) of the Act, complaints about "Advertising Programmes" are to be determined by the ASCB.

[21] It is the Authority’s practice to forward complaints received about advertisements to the ASCB. However, as the ASCB ruled on Mr James’ complaint when it was referred by TVNZ, the Authority does not intend to forward it to the ASCB on this occasion. Rather, it notes that in a Chairman’s Ruling on Complaint 01/279 dated 29 October 2001, the complaint was not accepted as the ASCB had ruled on the issues raised on this occasion in previous complaints about Logicol (01/87 and 01/199, 27 September 2001).

[22] In view of the Authority’s finding that "Family Health Diary" is an "Advertising Programme" the Authority declines to determine the complaint pursuant to the power given to it in s.11(b) of the Broadcasting Act 1989. Moreover, in view of the ASCB’s ruling on the issues raised by the complainant, it does not intend to take any further action.

For the reasons above, the Authority declines to determine the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
21 February 2002

Appendix

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

1. Richard F James’ Complaint to Television New Zealand Ltd (plus attachments) –
   27 September 2001
2. TVNZ’s Referral of the Complaint to the Advertising Standards Complaints Board –
   4 and 5 October 2001
3. Mr James' letter to TVNZ – 6 October 2001
4. Mr James' Referral to the Broadcasting Standards Authority – 7 October 2001
5. Mr James’ Letter to TVNZ – 8 October 2001
6. TVNZ’s Letter to Mr James – 9 October 2001
7. TVNZ’s Fax to the Authority – 12 October 2001
8. Mr James’ Reply to TVNZ (plus attachments) – 15 October 2001
9. Mr James’ Letter to the Authority – 16 October 2001
10. Mr James’ Letter to the Authority (plus attachments) – 17 October 2001
11. TVNZ’s Reply to Mr James – 19 October 2001
12. Mr James’ Response to TVNZ – 21 October 2001
13. ASCB’s Reply to Mr James – 24 October 2001
14. Mr James’ Response to the Authority – 27 October 2001
15. Mr James’ Response to the ASCB – 28 October 2001
16. Mr James’ Letter to the ASCB – received 5 November 2001
17. ASCB’s Response to the Authority (plus attachments) – 29 November 2001
18. Mr James’ Response to the Authority (plus attachments) – 7 December 2001
19. Mr James Further Correspondence – 7 February 2002