Mann and Television New Zealand Ltd - 2001-137
- P Cartwright (Chair)
- B Hayward
- R Bryant
- J H McGregor
- Professor Jim Mann
BroadcasterTelevision New Zealand Ltd
Documentary New Zealand: "To Age or Not to Age" – misleading – adverse health outcomes possible – unbalanced – broadcaster (TVNZ) upheld balance complaint – not impartial – broadcaster investigating commissioning possible documentary on dieting and ageing in 2002 – action taken insufficient
Important information contained in programme – action taken insufficient
Broadcast of approved statement
This headnote does not form part of the decision.
 "To Age or Not to Age" was the title of the documentary broadcast by TV One at 8.30pm on 30 July 2001 in the weekly documentary time slot. Using a number of medical criteria, the programme set out to measure the effectiveness of the approaches promoted by Leslie Kenton for staying healthy and feeling younger.
 Professor Jim Mann and two colleagues from the Department of Human Nutrition at Otago University complained to Television New Zealand Ltd, the broadcaster, that some of the approaches advanced were misleading, and some could lead to adverse health outcomes.
 In response, TVNZ was not prepared to adjudicate on the facts disputed in the complaint, but acknowledged that Ms Kenton had an unacceptable level of involvement in the programme’s production. Accordingly, TVNZ upheld the aspect of the complaint that the programme lacked objectivity and was not impartial. TVNZ advised that it was exploring the possibility of making a balancing programme in 2002, but could not give an absolute undertaking that this would happen.
 Dissatisfied, first, that there was no assurance that the programme would be made, and second, with the delay until such a programme would be screened, Professor Mann referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989
For the reasons below, the Authority upholds the complaint that the action taken was insufficient. It orders the broadcast of an approved statement.
 The members of the Authority have viewed a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The programme Documentary New Zealand: "To Age or Not to Age" was screened on TV One at 8.30pm on 30 July 2001. Using a number of medical criteria, the programme set out to measure the effectiveness of the approaches promoted by Leslie Kenton for staying healthy and feeling young. Eight people from a range of ages and life styles were measured before and after a five week trial on Ms Kenton’s scheme.
 Professor Jim Mann, Lecturer Dr Alex Chisholm, and Research Fellow Dr Kirsten McAuley from the Department of Human Nutrition at Otago University complained to Television New Zealand Ltd about the programme.
 They advised that they had received numerous enquiries about the authenticity of the claims made in the broadcast, noting that the interviews in the programme with some recognised scientists gave the claims some substance. In summary, they wrote, the programme claimed:
… that an insulin balance diet, rich in fruits, vegetables and meat (including apparently a relatively high intake of fat), but low in carbohydrate (even wholegrain sources) in conjunction with various lifestyle changes produce profound changes in health and well being.
 The complainants listed five specific nutritional facts which had been scientifically proven and while some of these matters were advanced in the broadcast, they maintained that some other aspects proposed in the broadcast were "extremely detrimental" in the long term or misleading. They concluded:
It is clear from the above that we believe that this particular documentary has been misleading to the extent that viewers need to be presented with a more balanced view as a matter of some urgency. We note from a newspaper article that the New Zealand Dietetic Association has expressed concern and that the producers have undertaken to consult a dietitian on a future occasion. This is not adequate. In an apparently authoritative programme on TV 1 some unsubstantiated and potentially misleading claims have been made. These may have adverse health outcomes. The imbalance needs to be redressed.
 TVNZ assessed the complaint against standards G1 and G6 of the Television Code of Broadcasting Practice. They require broadcasters in the preparation and presentation of programmes:
G1 To be truthful and accurate on points of fact.
G6 T o show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.
The Broadcaster’s Response to the Complainants
 In its response to the complainants, TVNZ’s Complaints Committee expressed concern at the "uncritical nature" of the documentary. It recorded that when the programme was devised to look at a well-known diet, it was expected that some of the eight people taking part would drop out, or would show no significant changes. TVNZ continued:
While the Committee accepted that the producer was impartial in selecting the eight people for the trial, it took the view that overall the programme failed the test of impartiality because of the unacceptably high level of involvement by Leslie Kenton. She clearly had a significant role in the production and writing of the programme as well as its presentation - and in the Committee’s view that was simply not acceptable in a programme presented as an objective documentary. In the committee's opinion any programme attempting to objectively assess the performance of any product or service needs to be completely detached from the suppliers or promoters of that product or service.
 Explaining that it had been given references in support of the item’s contentions about the benefits of the scheme, but noting that the complainants would most likely supply a list to support a different view, TVNZ declined to rule on the accuracy aspects under standard G1.
 However, acknowledging that the programme was not impartial, TVNZ upheld the standard G6 aspect of the complaint.
 As for the action it intended to take, TVNZ stated that its new commissioning editor agreed that the programme failed to meet the standards. Together with other senior staff, TVNZ continued, she was considering the prospect of an impartial documentary assessing dieting and ageing for broadcast in 2002. TVNZ accepted that the plans were preliminary but insisted that TV One management was determined to proceed.
The Complainant’s Response and Referral to the Authority
 Professor Mann replied to TVNZ on some matters. On the list of references supplied by Ms Kenton, he observed that one of the world’s leading nutritional scientists was cited, a person who Professor Mann said he knew well. He added:
I can assure you he would be horrified to hear his name being quoted as a reference to substantiate the Kenton programme.
 In regard to TVNZ’s proposed programme in 2002, Professor Mann noted that there was no guarantee that it would be made, that there was no indication as to who would participate, and he described the delay as "totally unacceptable". Because many doctors had little training in nutrition, and because many people had been misled by the programme just broadcast, he argued that the matter needed to be rectified urgently.
 Professor Mann reiterated the points about the suggested programme when he referred to the Authority his complaint about TVNZ’s proposed action. He stated:
There is unquestionably a risk of detrimental health effects which may be directly attributable to the unsubstantiated claims made on this programme.
The Broadcaster’s Response to the Authority
 TVNZ said that it understood Professor Mann’s frustration at the absence of a firm undertaking to make a programme in 2002 which would provide balance. Nevertheless, it assured the Authority that it was TV One’s intention to explore the possibility of a programme next year.
The Complainant’s Final Comment
 In his final comment, Professor Mann reiterated the point that the broadcast had raised a major health issue "which requires immediate redress". He enclosed a letter as an example of the queries with which he was dealing, and asked that the Authority consider requiring the preparation of a programme immediately.
The Authority’s Determination
 TVNZ upheld a complaint from three staff members of the Department of Human Nutrition at Otago University that the documentary, "To Age or Not to Age", lacked objectivity and was not impartial.
 The complainants also maintained that the item was inaccurate on a number of points. TVNZ declined to rule on that aspect of the complaint on the basis that it was not qualified to do so. The Authority records that the Broadcasting Act requires broadcasters to establish a procedure to investigate complaints and to make decisions on them. While the broadcaster’s action in declining to reach a decision does not, on this occasion, necessarily affect the outcome of the complaint, the Authority notes that it expects broadcasters to meet its legislative responsibilities when determining complaints.
 Having upheld the complaint as a breach of standard G6 of the Television Code, TVNZ advised it was its intention to examine the subject of dieting and ageing again in a programme to be broadcast in the year 2002. It noted that the plans were preliminary and while there was a strong intention to make a programme, it was unable to give a guarantee that it would proceed.
 Professor Mann was dissatisfied with TVNZ’s action, not only because of the lack of an assurance that the proposed programme would be made and uncertainty as to its structure, but also because of the time delay before such a programme would be screened. In his correspondence, he emphasised the immediate impact of the documentary on the public, and that it was misleading in a number of important particulars.
 The Authority notes the strong concern about the programme expressed by a noted authority in the field. The Authority cannot require TVNZ to make another documentary about dieting and ageing, and notes that some time will elapse even if the documentary is produced.
 The complainant has advanced a strong case for immediate action, and the Authority agrees with him that the action taken to date is insufficient. The Authority has the power to order the publication of an approved statement and, it concludes, that a statement is appropriate on this occasion. The Authority requires that the statement acknowledge that TVNZ upheld the complaint that "To Age or Not to Age" was not impartial. In addition, it shall be broadcast at an approved time.
 In reaching the decision that the publication of a statement is appropriate, the Authority records that it has considered whether the broadcaster’s right to freedom of expression, as contained in s.14 of the New Zealand Bill of Rights Act 1990, is unjustifiably infringed. The Authority is satisfied that its decision to uphold this complaint that TVNZ’s actions are insufficient, and its resultant order, are made under its empowering legislation. The Authority is also satisfied that the exercise of its power on this occasion does not unduly restrict the broadcaster’s right to express itself freely. Indeed, it considers that the upholding of this complaint is reasonable and demonstrably justified, while giving effect to the intention of the Broadcasting Act. In coming to this conclusion, the Authority has taken into account all the circumstances of this complaint, including the nature of the error, the broadcaster’s admission of the error, and the potential impact of the order.
For the reasons above the Authority upholds the complaint that the action taken by Television New Zealand Ltd, when it upheld the complaint about Documentary New Zealand: "To Age or Not to Age" broadcast on TV One on 30 July 2001, was insufficient.
 Having upheld a complaint, the Authority may impose orders under ss13 and 16 of the Broadcasting Act 1989.
 In view of the nature of the breach, discussed above, the Authority imposes the following order.
Pursuant to Section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be approved by the Authority and shall be broadcast at a time and date to be approved by the Authority.
The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the order has been complied with.
Signed for and on behalf of the Authority
29 November 2001
The following correspondence was received and considered by the Authority when it determined this complaint:
- Professor Mann, Dr Alex Chisholm and Dr Kirsten McAuley’s Complaint to Television New Zealand Ltd – 6 August 2001.
- TVNZ’s Response to the formal complaint (plus attachment) – 31 August 2001
- Professor Mann’s Response to TVNZ – 4 September 2001
- Professor Mann’s Referral to the Broadcasting Standards Authority – 4 September 2001
- Professor Mann’s Response on Process to the Authority – 10 September 2001
- TVNZ’s Response to the Authority – 14 September 2001
- Professor Mann’s Final Comment – 20 September 2001