BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Downsize Me! – recommendations on weight loss and nutrition – allegedly inaccurate and misleading

Findings
Standard 5 (accuracy) – "factual programme" in the sense that it reported actual events and offered general information – advice and "scare tactics" presented in personable way – general messages were to eat better, exercise regularly and improve health – viewers would have understood that most of the advice was tailored to the particular participant – however, broadcasters need to take special care when discussing medical conditions – statement about coconut oil misleading – one aspect upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1] Downsize Me! was a health, diet and exercise programme where overweight people worked for eight weeks to lose weight and reduce health risks. The Tuesday 30 September 2008 episode, broadcast at 7.30pm on TV3, featured a woman named Taryn. The Downsize Me! team consisted of Damian Kristof, who was introduced as "five plus a day Damian Kristof", and a personal trainer.

[2] Throughout the episode, the team gave advice about Taryn's current health and designed an exercise and diet programme for her. At the end of the programme before the closing credits, the following words were briefly displayed in the bottom third of the screen:

The diet and exercise regime in this programme was designed and supervised by health professionals and tailored to our participant's medical status and their specific needs. Consult with your doctor before embarking on any diet or exercise programme.

Complaint

[3] The New Zealand Dietetic Association (NZDA) made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the programme contained a number of specific inaccuracies and misleading statements. It nominated guidelines 5b and 5d to the accuracy standard.

[4] The complainant noted that the contestants had health assessments as part of being on the programme, so the experts had their full history and were able to make statements specific to their health needs. However, it considered there was insufficient mention of that fact, and so viewers might misinterpret advice for the individual as population-wide recommendations. The complainant argued there was no distinction between fact and opinion, which could lead to viewers receiving misleading and inaccurate nutritional information.

[5] NZDA then considered a number of specific aspects of the programme that it believed were inaccurate or misleading.

"Irritable Bowel Syndrome is caused by poor quality fibres going into the body."

[6] NZDA stated that the causes of IBS were unclear, and particular foods or nutrients do not cause IBS, but can trigger symptoms. The symptoms could be improved by eating different types of fibre, it said, but IBS was not caused by "poor quality fibre". Dietary fibre was extremely important for achieving and maintaining good bowel health, NZDA said. It appeared that Damian had mistaken foods that were a poor source of fibre and incorrectly labelled them "poor quality fibre". NZDA maintained that this sort of inaccurate statement could unnecessarily alarm viewers and lead them to think some fibre is bad and could cause IBS. In fact, the New Zealand population would benefit from increased fibre intake because dietary fibre may help in the prevention and management of cardiovascular disease and diabetes, and reduce the risk of some cancers. Therefore, NZDA considered this inaccuracy could impact negatively on public health.

Coconut oil was advised because "when you use a vegetable based saturated fat it doesn't burn and so when it doesn't burn you're not getting trans-fatty acids. Trans-fatty acids will encourage diabetes."

[7] NZDA claimed the reasoning for choosing coconut oil was incorrect and also contradictory. The statement was therefore misleading for the following reasons.

[8] NZDA noted that both trans fatty acids and saturated fatty acids raised LDL cholesterol which is a risk factor for heart disease. Coconut oil is very high in saturated fat and should not be recommended in place of other more beneficial oils such as rice bran or safflower oil for cooking at high temperatures.

[9] Secondly, saturated fats are not converted to trans fatty acids. Trans fats are formed when unsaturated fats are partially hydrogenated, changing the unsaturated and essential fatty acids in an oil when it reacted with hydrogen gas under pressure.

[10] Third, no fat, whether it be trans fatty acids, saturated or unsaturated, directly "encourages diabetes"; Type 2 diabetes is almost always caused by being overweight. NZDA agreed that trans fatty acids should be limited, but maintained they more directly contributed to cardiovascular disease, not diabetes.

[11] NZDA considered this misinformation could have unnecessarily harmed viewers, but also could have caused a negative effect on people's health by advising cooking with an oil high in saturated fat compared with an unsaturated fat. Reduction of fat consumption would contribute to the reduction of coronary heart disease and obesity. Saturated fat consumption in New Zealand was already high, the complainant said, and health professionals are obliged to advise people regarding minimising their intake of saturated fat in order to improve their health.

When discussing the contestant’s old diet, Damian stated that "the types of sugars she was getting into her system were putting her at risk of Type 2 diabetes."

[12] NZDA stated that becoming overweight was almost always the cause of the body becoming resistant to insulin which can trigger Type 2 diabetes. It said credible scientific research (examples provided) had concluded that the total amount of sugar consumed by an individual was not independently associated with the development of Type 2 diabetes.

When talking about weight loss, Damian said, "It’s going to depend largely on the sorts of vegetables you're eating. If you’re going to have to rely on potato and those starchy sorts of carbohydrates, your weight loss is going to be slow."

[13] NZDA maintained that being overweight and obesity were a result of a chronic excess of energy intake through food and beverage consumption, over energy expenditure - not by the type of food eaten. It was therefore misleading and inaccurate to state that potato and starchy carbohydrate consumption would impede weight loss. This statement could have prompted viewers to exclude foods which should be a part of a healthy balanced diet, NZDA said. Both potatoes and bread are significant sources of dietary fibre and folate. NZDA considered it would be more appropriate to provide advice around portion control and to recommend consumption of wholegrain carbohydrates.

Standards

[14] The complainant nominated Standard 5 and guidelines 5b and 5d of the Free-to-Air Television Code of Broadcasting Practice in its complaint. These provide:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5b   Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5d   Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

Broadcaster's Response to the Complainant

[15] TVWorks considered that the disclaimer played at the end of the programme was relevant to the complainant's concerns that viewers would accept the advice given as targeted at the general population, and also to many of its complaints about accuracy. It said that the billboard was played over the concluding story of the featured contestant and the producer considered this was the most ideal time for screening that information. TVWorks emphasised that it was on air for "five full seconds", and was satisfied it could be read in its entirety.

[16] As a general comment, TVWorks stated that the programme was not required to include the entire range of medical and nutritional facts and opinions about specific conditions. To do so, it said, "would take what is essentially an uplifting, healt-promoting, socially responsible show and make it inaccessible and unwatchable to most viewers". It said the production team took great care to ensure that all material facts and opinions in the show were taken into consideration when making editorial choices.

[17] TVWorks was of the view that the programme did not contain any inaccurate or misleading material. It asked Damian Kristof to provide explanations regarding the factual basis of the statements complained about by NZDA.

"Irritable Bowel Syndrome is caused by poor quality fibres going into the body."

[18] Damian maintained that the point he was making was not to avoid fibre, but to avoid poor quality foods containing poor quality processed fibres. In fact, he said, in the very next sentence he recommended the inclusion of a high fibre cereal and therefore the necessity of consuming fibre to aid in the alleviation of IBS symptoms. "This is indeed what occurred," he said. He accepted there was no one cause of IBS, but considered it was clear in Taryn’s case that the type of fibre and the lack of high quality fibre from plant sources such as vegetables and fruit had "contributed to if not caused the IBS".

Coconut oil was advised because "when you use a vegetable based saturated fat it doesn't burn and so when it doesn’t burn you’re not getting trans-fatty acids. Trans-fatty acids will encourage diabetes."

[19] Damian attached further information from a study on the influence of virgin coconut oil on blood coagulation factors, lipid levels and LDL oxidation in cholesterol fed Sprague-Dawley rats, from which the programme’s producers had concluded that:

The results demonstrated the potential beneficiary effect of virgin coconut oil in lowering lipid levels in serum and tissues and LDL oxidation by physiological oxidants. This property of VCO may be attributed to the biologically active polyphenol components present in the oil.

When discussing the contestant’s old diet, Damian stated that "the types of sugars she was getting into her system were putting her at risk of Type 2 diabetes."

[20] Damian attached extracts of two unreferenced studies, one of which said:

Accumulating data indicate that a diet characterized by low glycaemic index (GI) foods not only improves certain metabolic ramifications of insulin resistance, but also reduces insulin resistance per se. Epidemiological data also suggest a protective role against development of non-insulin-dependent diabetes mellitus and cardiovascular disease.

When talking about weight loss, Damian said, "It's going to depend largely on the sorts of vegetables you're eating. If you’re going to have to rely on potato and those starchy sorts of carbohydrates, your weight loss is going to be slow."

[21] Damian referred to another unreferenced study, which concluded that:

...significantly greater weight loss was demonstrated with low carbohydrate intervention... There are several other reports indicating metabolic advantage in low carbohydrate diets over short term... the effect will be seen primarily in subjects with insulin resistance. The association of insulin resistance with diabetes makes this of great importance.

[22] TVWorks concluded that the programme was not in breach of Standard 5 and declined to uphold the complaint.

Referral to the Authority

[23] Dissatisfied with TVWorks' response, NZDA referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[24] NZDA pointed out that its members were the only nutrition experts liable under the Health Practitioners Competence Assurance Act 2003, and as such were legally bound to ensure consistency and accuracy of key messages, and help reduce misinformation. NZDA was concerned that public health and safety were at stake both in respect of viewers and participants on the show.

[25] The complainant argued that the explanations provided by Damian did not address the issues raised in its complaint. It noted, for example, that in his discussion of coconut oil he referenced a 2004 study conducted on rats. NZDA considered this was not a strong study, and maintained that scientific evidence indicated that consuming coconut oil in place of fats and oils high in polyunsaturated fats would increase cardiovascular risk. However, this was not the subject of the complaint, it said; there was no attempt to acknowledge or contest NZDA's concern that the reasoning for choosing coconut oil was incorrect and contradictory. NZDA said that dietitians were very concerned about the effects of coconut oil consumption on vulnerable ethnic groups with poor health outcomes.

[26] Turning to its concerns about carbohydrates, NZDA notes that TVWorks had cited articles which directly related to the use of carbohydrates in diabetes management, when in fact the contestant did not have diabetes, making these references "largely irrelevant".

[27] With regard to the statements made about "poor quality fibres", NZDA argued that Damian did not seem to understand that there was a difference between processed and unprocessed foods, and different types of fibres. He labelled processed foods "poor quality fibre" rather than poor "sources" of fibre. This was misleading and confusing for the viewer, NZDA said, as the presenter was referring to the properties of the fibre rather than the amount.

[28] NZDA stated that it was misleading and potentially alarming for viewers to be presented with information that was at odds with evidence-based guidelines which had been peer-reviewed, or recent well-designed clinical trials. It asked the Authority to review the references provided and the science behind the complaints.

[29] NZDA reiterated that an essential element of its complaint was that the billboard displayed at the end of the programme was flashed onscreen too quickly for viewers to be made aware that the information in the programme was tailored for the individual contestant. It argued that it should be clearly displayed at the beginning of the programme so that people who did not see the show in its entirety were informed appropriately about the context of the programme. NZDA noted that the disclaimer was prominently displayed at the beginning of the final episode on 4 November.

[30] With regard to TVWorks' contention that the billboard was displayed for "five full seconds", NZDA noted that throughout the series, the billboard had appeared for between 4.5 and 4.8 seconds, until the final episode. In that episode the disclaimer was on screen for 11.5 seconds, and was also read in a voiceover. NZDA said it was only possible to read the first sentence, not the full disclaimer, when it was shown for less than five seconds. It was also shown while a contestant was talking, being spoken to, or in the middle of their final challenge, which distracted the viewer from fully understanding the contents of the disclaimer.

[31] NZDA reiterated its argument that throughout the programme Damian made statements of fact. It considered it would have been beneficial for him to show that the information was tailored to the participant's medical status and specific needs.

[32] The complainant concluded its referral by saying:

We are aware of instances where the information from this series is being applied inappropriately and are concerned that this programme is misleading and causing harm to the public and to the individuals who participated in the programme.

Broadcaster's Response to the Authority

[33] TVWorks attached further responses from the executive producer of Downsize Me!, and Damian Kristof in association with the Head of the Charter for Natural Health Practitioners.

[34] The executive producer said that the programme makers found it "incredible that the NZDA continually disregard the information we have provided and evidence-based results consistently achieved on the show". She emphasised that:

We have never once said that Damian is a dietitian and are proud that he is a naturopath having chosen to go in this direction and achieve the results we have been able to and the phenomenally positive public response.

[35] With regard to NZDA’s argument that the programme's advice went against evidence-based best practice guidelines, Damian noted that diabetes was recognised as the second leading cause of death in New Zealand. He was of the view that the guidelines referenced by the complainant "have proven to be a complete and total failure in regards to the correction of this endemic problem and have not resulted in a desired and positive outcome". He emphasised that as a natural healthcare practitioner he had achieved positive health outcomes by incorporating a healthy diet and positive lifestyle changes.

[36] In response to NZDA’s argument that TVWorks was using “carbohydrates” and "sugars" interchangeably, Damian maintained that for centuries it had been recognised that carbohydrates are the main source of metabolic energy. Sugars and starches which convert to sugar in the body represent 50 to 70 percent of the energy intake, he said, largely from starch and sucrose. Basically, Damian argued, “carbohydrates are the monosaccharide sugars”.

[37] With regard to the programme's disclaimer, Damian emphasised that a disclaimer was published similar to other disclaimers.

[38] In response to the complainant's argument that the use of coconut oil was not advisable, Damian said that the NZDA had been "duped by the very successful campaign conducted by vegetable oil manufacturers to effectively downgrade the importance of coconut oil and its role in a healthy diet".

[39] NZDA argued that TVWorks had cited articles directly relating to the use of carbohydrates in the management of diabetes, when in fact the participant on the show did not have diabetes, making the references largely irrelevant. Damian responded that the NZDA seemed to hold the opinion that obesity had no relationship with the onset of diabetes – "the end result and a scientific fact that has been recognised by the medical profession for at least the last one hundred and forty years".

[40] With regard to the complainant’s argument that it was inaccurate to state that "poor quality fibre" caused irritable bowel syndrome, Damian said he agreed that "processed fibre is not only poor quality fibre but is also a poor source of fibre". However, he considered NZDA was "splitting hairs" in order to find the intent behind the statement misleading.

[41] Finally, in response to NZDA’s argument that advice given on Downsize Me! was misleading the public, he stated that:

Every day of the week the general public is exposed to misleading and potentially alarming information in the media. However, the general public is sophisticated to a degree to be able to be discerning and sort the wheat from the chaff.

I have never taken it upon myself to provide misleading information to clients or the general public. My guiding principle is and always has been to assist my fellow man and woman to obtain and maintain a balanced healthy lifestyle, by promoting a wellness programme.

Authority's Determination

[42] The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Nature of the Programme

[43] In Decision No. 2007-078, the Authority found that Downsize Me! was a "factual programme" to which the accuracy standard applied. It commented that viewers were reasonably entitled to expect that the information given in the programme was truthful and authoritative. However, while the programme was informative at a general level, the Authority considers that its overarching purpose was to entertain viewers and convey an uplifting social message. The programme’s presenters employed shock tactics, and presented advice in a personable and sometimes dramatic way, in an attempt to impress upon the participants the importance of eating well and exercising.

[44] The Authority acknowledges that discussions which challenge orthodox or mainstream medical opinion are important parts of the right to freedom of expression provided by the New Zealand Bill of Rights Act 1990. It would therefore be hesitant to limit the expression of genuine opinion on matters of health, provided that it was clearly distinguishable as opinion. Further, the perspective and qualifications of the person giving the advice should be disclosed so that viewers can make an informed decision about the validity of their opinions. This is particularly important where a programme is discussing specific health conditions such as diabetes, because the potential consequences of a viewer adopting incorrect or controversial advice could be life-threatening.

[45] TVWorks argued that the disclaimer at the end of each episode of Downsize Me! was sufficient to make it clear that the advice in the programme was tailored to the particular participants, so that viewers would not adopt it themselves. The Authority disagrees. The disclaimer was small, difficult to read and was not displayed for sufficient time for an ordinary viewer to read and understand it. Furthermore, Damian Kristof's qualification as a naturopath was never disclosed to viewers; he was simply described as "five plus a day Damian Kristof" and the disclaimer referred to “health professionals”.

[46] In order for a disclaimer to operate in the manner suggested by the broadcaster – effectively as a "cure-all" – the Authority considers that it would need to specify the qualifications of the person giving advice and, ideally, be presented verbally and visually at the beginning of the programme.

[47] Having determined that the disclaimer was not sufficient to frame the programme so as to avoid breaching the accuracy standard, the Authority now proceeds to consider each of the statements claimed to be inaccurate by NZDA.

Coconut oil was advised because "when you use a vegetable based saturated fat it doesn't burn and so when it doesn't burn you're not getting trans-fatty acids. Trans-fatty acids will encourage diabetes."

[48] The complainant argued that coconut oil was high in saturated fat which raised ‘bad’ cholesterol, and should not be recommended to people in the contestant's medical condition. Coconut oil was listed in the "mostly avoid" section of the cardioprotective dietary guidelines, NZDA said. Damian attached information from a study on the influence of virgin coconut oil on blood coagulation factors, lipid levels and LDL oxidation in cholesterol-fed Sprague-Dawley rats.¹

[49] Having considered the information provided by both parties, it is clear to the Authority that Damian's advice about coconut oil is contrary to mainstream medical opinion. The Authority notes that the Cardioprotective Dietary Patterns issued by the Ministry of Health for the management of Type 2 diabetes twice expressly discourage the use of coconut oil. In its recommendations for the use of fats and oils, diabetics are advised to "mostly avoid" coconut oil, as opposed to, for example, safflower, sesame or olive oil which are described as "best choices". Similarly, the guidelines advise that when consuming oils, spreads and nuts, diabetics should "choose products made from sunflower, soya bean, olive, canola, linseed, safflower or nuts and seeds, other than coconut".

[50] If Damian had been clear that it was merely his genuinely-held opinion that coconut oil was good to use, and that this was contrary to mainstream advice, viewers could have made up their own minds about his recommendation. However, the programme gave no indication that this recommendation was innovative or alternative. Viewers were therefore likely to interpret Damian's advice as fact, and as mainstream opinion among nutrition experts.

[51] Accordingly, the Authority finds that the endorsement of coconut oil, without qualification that it was opinion which challenged current Ministry of Health guidelines, was misleading.

[52] Having found that this aspect of the programme was misleading, the Authority must consider whether to uphold this part of NZDA's complaint as a breach of Standard 5 (accuracy).

[53] The Authority acknowledges that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-040, the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[54] The Authority also considers that it would be a reasonable and proportionate limit on TVWorks' freedom of expression to uphold a breach of the accuracy standard on this occasion. Upholding NZDA's complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. The Authority considers this was particularly important in this instance, where the information related to viewers' health. In these circumstances, the Authority upholds this part of the accuracy complaint.

"Irritable Bowel Syndrome is caused by poor quality fibres going into the body."

[55] NZDA stated that the causes of IBS were unclear, and particular foods or nutrients do not cause IBS, but can trigger symptoms. The symptoms could be improved by eating different types of fibre, it said, but IBS was not caused by "poor quality fibre".

[56] In the Authority's view, Damian was using shorthand and conversational language to explain to the contestant what was triggering her IBS symptoms. It was not necessary for him to explain in detail what was or was not believed to be the cause of the condition. His statement was general, conversational, and was not inaccurate in the sense that he was attempting to explain to Taryn the connection between her symptoms and the amount of poor quality processed food in her diet. Viewers would have understood that Taryn was being advised to eat healthier food to alleviate her symptoms.

[57] The Authority therefore finds that the statement was not misleading. It declines to uphold this aspect of the complaint.

When discussing the contestant’s old diet, Damian stated that "the types of sugars she was getting into her system were putting her at risk of Type 2 diabetes."

[58] NZDA argued that becoming overweight was almost always the cause of the body becoming resistant to insulin which can trigger Type 2 diabetes. It said credible scientific research had concluded that the total amount of sugar consumed by an individual was not independently associated with the development of Type 2 diabetes.

[59] In the Authority's view, viewers would have understood that this statement was pertinent to Taryn and the amount of sugar she was consuming. Referring to her risk of developing diabetes was a "scare tactic" used to encourage her to eat better and lead a healthier lifestyle.

[60] The Authority considers the statement was general enough not to be misleading. While it did not explain the role of sugar in the development of diabetes, viewers were likely to understand that excess sugar consumption led to weight gain and obesity which was a major contributing factor for diabetes.

[61] In these circumstances, the Authority concludes that the statement was not misleading or inaccurate, and considers that upholding the complaint would unreasonably restrict the broadcaster's right to freedom of expression.

When talking about weight loss, Damian said, "It's going to depend largely on the sorts of vegetables you're eating. If you’re going to have to rely on potato and those starchy sorts of carbohydrates, your weight loss is going to be slow."

[62] NZDA maintained that it was misleading and inaccurate to state that potato and starchy carbohydrate consumption would impede weight loss. This statement could have prompted viewers to exclude foods which should be a part of a healthy balanced diet, NZDA said.

[63] One of the themes of the episode was Taryn's fear of vegetables, and it was stated early on that the only vegetable she ate was potato. Damian did not instruct Taryn to completely exclude potato from her diet; he only said that her weight loss would be slow if she had to rely on potato, as she had been, as opposed to eating a variety of vegetables. In the Authority’s view, the audience would have understood that Damian's advice was particular to Taryn’s situation, and that he was not encouraging all viewers to avoid eating potato.

[64] Accordingly, the Authority declines to uphold this part of the complaint.

For the above reasons the Authority upholds the complaint that an episode of Downsize Me! broadcast by TVWorks Ltd on 30 September 2008 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[65] Having upheld the complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. Only one aspect of the broadcast was upheld as being misleading, but in the context of the programme, the Authority is of the view that the breach was not sufficiently serious to warrant an order. It considers that the publication of its decision is sufficient on this occasion.

Signed for and on behalf of the Authority

Joanne Morris
Chair
6 May 2009

Appendix

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

1.  New Zealand Dietetic Association's formal complaint – 29 October 2008
2. TVWorks' response to the complaint – 20 November 2008
3. NZDA's referral to the Authority – 17 December 2008
4. TVWorks' response to the Authority – 12 February 2009

¹K.G. Nevin and T. Rajamohan. 'Beneficial effects of virgin coconut oil on lipid parameters and in vitro LDL oxidation.' Clinical Biochemistry, September 2004, 37(9), 830-835. Department of Biochemistry, University of Kerala, Kariavattom, Thiruvananthapuram, India.