BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Holmes – cure for acne – drug identified – side effects not reported – misleading – unbalanced – partial

Findings
Standard G6 – not controversial issue to which the standard applies – decline to determine; other standards not relevant

Observation
Issue to be considered when free-to-air code is revised

This headnote does not form part of the decision.

Summary

The availability of an effective treatment for acne was the subject of an item on Holmes broadcast on TV One on 23 March 2000 between 7.00–7.30pm. A dermatologist and a doctor were interviewed, as well as two young people who had both been successfully treated by a named drug.

The Pharmaceutical Management Agency Ltd (PHARMAC) complained to Television New Zealand Ltd, the broadcaster, that the broadcast was misleading and unbalanced. In particular it expressed its concern that the broadcaster had been used to promote a prescription medicine. It also objected to the item’s failure to report that the drug was powerful and had serious side effects and further, that it was not the only effective treatment available.

TVNZ responded that the item had made clear that effective treatment for acne sufferers was available through their doctor. The item, it said, was motivated by a desire to provide information to vulnerable young people and was not intended to promote any particular product. It declined to uphold the complaint.

Dissatisfied with TVNZ’s response, PHARMAC referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declines to determine an aspect of the complaint. It declines to uphold any other aspect.

Decision

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

A Holmes item broadcast on TV One on 23 March 2000 reported on the availability of effective treatment for teenage acne. In the programme, a dermatologist and a doctor both recommended that sufferers should seek professional medical help. Two young people who had been successfully treated with a named drug reported on their experience.

PHARMAC complained to TVNZ that the item was one-sided and "an unbalanced push for a prescription medicine." It expressed its concern for the young vulnerable people who would have been misled by the item, and suggested that the manufacturer of the drug "must have been thrilled to get a free direct-to-consumer ad on a ‘current affairs’ programme." Most seriously, it said, the reporter failed to advise that the named drug had serious side effects, and that there were other brands of that particular medicine available.

PHARMAC emphasised that it was very concerned about prescription medicines being promoted in the general media because they were potent drugs, and their use should be decided by the patient and their doctor together. It noted that one of the side effects of the drug cited was that it led to birth deformities if taken by a pregnant woman. It pointed out that: "Doctors are very careful about ensuring teenaged girls are warned about this in light of the fact that they are the ones most likely to have [an] unplanned pregnancy." Yet, PHARMAC maintained, the reporter made a point of targeting the message to teenage girls.

As a further point, PHARMAC noted that the drug was identified by its brand name, and that there was another medicine marketed in New Zealand which was exactly the same product made by a competing drug company. Neither of the doctors, it observed, had referred to the drug by name. It was the reporter who had promoted it. Finally, PHARMAC expressed its concern about direct to patient advertising, which it suggested exploited consumers’ lack of medical knowledge. It provided a fact sheet outlining its views on the subject.

In a second letter to TVNZ, PHARMAC explained that it had a growing concern with the medicalisation of our culture, and the attitude that simply popping a pill was the simple answer to every problem in life. It noted that medicines had to be prescribed by a doctor because they were potent chemicals. It objected to the drug being promoted on a current affairs item. It said that the reporter had advised that after the broadcast 15–20 people had sought information from the broadcaster on how to access the drug. In its view, the programme would have been more responsible had it urged viewers to talk to their doctor, and had it advised them that there were many potential options, not just one "wonderdrug".

In its response, TVNZ reported that the item had attempted to dispel some myths about acne, to reassure those suffering from it that it could be treated and to advise that medical advice should be sought. It assessed the complaint under standards G6, G7, G12 and G14 of the Television Code of Broadcasting Practice which were nominated by the complainant. Standards G6, G7 and G12 require broadcasters:

G6 To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G7 To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.

G12 To be mindful of the effect any programme may have on children during their normally accepted viewing hours.

The other standard reads:

G14 News must be presented accurately, objectively and impartially.

TVNZ began by noting that the references to the drug appeared to be central to the complaint. Those references, it said, had to be seen in the context of the whole item. It noted that the item had made the following points:

• Acne caused a lot of embarrassment and misery to young people.
• Common methods of dealing with it were often based on old wives’ tales and myth.
• Some sufferers found that off the shelf remedies did not work.
• Dermatologists and doctors recommended that sufferers should seek medical help, because acne was a genetic
• condition and could be successfully treated.
• An example of two people who sought medical advice was provided. Both had been prescribed the drug by a dermatologist.
• Drugs that were effective against serious cases of acne were available only on prescription.
• It was important for acne sufferers to know that acne was a problem which could be fixed.

In TVNZ’s view, there had been a strong message throughout the item which stressed the importance of acne sufferers seeking professional medical help. That message was conveyed both by the reporter and by the two doctors who had been interviewed.

TVNZ said it believed there was demonstrable public interest in demystifying a common malady which "causes both psychological and physical scarring to many young people around New Zealand." The item, it continued, was not motivated by a desire to promote any product or drug manufacturer.

The named drug had been mentioned in the context of the young people who had been prescribed it, TVNZ noted. It pointed out that there was no implication in the item that the drug was available over the counter, or that it could be acquired other than by prescription.

TVNZ said it did not deny that it had received a number of calls from young people after the item. It said that such a response was not unusual, and that it believed many of the callers wanted to know more about the drug because they had not themselves seen the item. In accordance with its practice, TVNZ advised that the callers had been told to consult their doctors.

In TVNZ’s view, the reference to the drug had not amounted to a commercial promotion. It considered it had been legitimately referred to as a medicine which successfully treated acne.

Turning to the complaint under standard G6, TVNZ concluded that the standard had not been breached because the item was not about whether the particular drug should or should not be prescribed, but demonstrated that there were remedies available through doctors. It was TVNZ’s view that the message that acne sufferers should see their doctors was not one which required balance. While it accepted that the product might well have side effects, the context in which it was mentioned was not, in TVNZ’s opinion, the appropriate one in which to refer to them. The emphasis, it noted, was on seeing a doctor, not on receiving medical advice from a television programme. It said it went without saying that advice from a doctor would always have mentioned the side effects.

With reference to standard G7, TVNZ questioned its relevance, noting that no deceptive programme practice had been used. It repeated that the consequences of acne, both physical and emotional, had been made clear, as was the fact that it was treatable, and that sufferers should consult their doctors. It concluded that there was nothing deceptive about that.

TVNZ said it could not conclude that standard G12 had been breached, because the item had provided positive and helpful advice for young people.

Finally, it concluded that as the programme had not been inaccurate or lacked objectivity and impartiality, no breach of standard G14 had occurred. TVNZ declined to uphold the complaint.

When it referred the complaint to the Authority, PHARMAC expressed disappointment with TVNZ’s response to the complaint. The item, it said, was a "blatant promotion" of the drug, and should have been more appropriately labelled an advertorial than a current affairs item.

PHARMAC contended that TVNZ had glossed over the fact that the item had clearly told a young vulnerable audience that this drug was the simple answer to their problem. It noted that both doctors interviewed had highlighted the seriousness of acne, and emphasised the need to seek professional advice. Neither had mentioned a specific drug, or a particular treatment, it observed.

In contrast, PHARMAC continued, the reporter had advocated just one treatment, and several close-ups of the product had been shown. PHARMAC complained that the reporter had not pointed out that this was one of several treatments available, nor had he mentioned any side effects. It believed that he would have created a situation where patients would ask their doctors for a specific drug. It said research showed that 80% of doctors gave patients the drug they asked for.

PHARMAC repeated that the drug had serious side effects and it was up to doctors to assess whether it was suitable for their patients, not reporters. Concluding, it wrote that the item was an extremely one-sided promotion of the drug, and that the manufacturer would welcome the free advertising. PHARMAC contended that reporters had a responsibility to be extremely cautious when reporting treatments and prescription drugs.

In its response to the Authority, TVNZ utterly rejected the assertion that the programme had been a blatant promotion of an acne drug. Such an assertion, it suggested, implied that it had a commercial arrangement with the manufacturer which, it said, was nonsense.

TVNZ repeated that the item was about the problems young people encountered with acne and that it emphasised that the problem could be cured with proper medical advice. The item referred to two young people who had been cured and who named the drug used in their cases. TVNZ noted that in both cases the drug had been prescribed by a dermatologist. The item, it said, emphasised that the cures available were prescription medicines.

With reference to the failure to mention any side effects, it noted that neither the doctor nor the dermatologist interviewed had considered it necessary to mention them. In TVNZ’s view, the story had dealt with an important social problem of particular relevance to young people. It contended that it would have lacked credibility had it not demonstrated that the medical advice actually worked.

In its final comment PHARMAC agreed that a programme on serious acne was warranted. It also acknowledged that the two doctors interviewed had appeared to have been responsible by not discussing a particular treatment or a particular drug or brand name.

It was, PHARMAC noted, the reporter "who quite clearly and profligately ensured that the name of the drug was ingrained on the viewers’ mind." It objected to the close up shots of the packets, and by the drug being identified by its brand name instead of by its chemical name or as a prescription drug. PHARMAC expressed its concern about the item conveying the idea that the drug was the answer if you had acne because it believed young people would then request it by name from their doctor.

PHARMAC then clarified that it had not made any suggestion that TVNZ had a commercial arrangement with the drug’s manufacturer. It explained that its concern was that doctors would be pressured to prescribe the drug and that people would not know that it had serious side effects.

PHARMAC also emphasised that the story did not have a "particular news peg" and that the product had been available for years. It suggested that people could believe it had been publicised to let them know there was now an instant cure available.

Next, PHARMAC acknowledged that the final decision over whether a person was prescribed a drug was for the doctor, but noted that many doctors were often put under intense pressure to prescribe a particular drug. PHARMAC concluded:

The basis of our complaint is that the Holmes show used all the telecommunication techniques to ensure youths are given the dream, the brand name, but not all the medical facts necessary to start a potent medical treatment.

PHARMAC attached the manufacturer’s information sheet, which outlined the side-effects of the treatment.

The Authority’s Findings

The essence of this complaint is that a named drug was promoted as being the cure for acne. PHARMAC’s objection was that the reporter failed to refer to the known side effects of taking this powerful drug, and that he promoted it to a teenage audience. Notwithstanding that reference was made to the fact that the drug was available only on prescription, it was PHARMAC’s view that by naming the drug, doctors would be under pressure by patients suffering from acne to prescribe it.

The complainant alleged that the programme breached standards G6, G7, G12 and G14. The Authority’s task is to assess the programme against each of the nominated standards to determine if there is a breach.

It begins by considering standard G6. That standard has application when the subject includes "political matters, current affairs and all questions of a controversial nature". It is the Authority’s view that the report on acne treatment does not fall into any of these categories. Clearly, it is not a political matter. Secondly, as it did not report on any new development or elaborate on any current news, the Authority does not consider that the report could be seen as a current affairs story. Finally, in the Authority’s view, the item did not deal with a question of a controversial nature, but simply provided information about a long-standing treatment regime which, the item reported, is in most cases effective. The naming of the drug and the failure to mention its side effects are, the Authority acknowledges, separate issues to which it turns below. Having concluded that the report does not satisfy the criteria for consideration under standard G6, the Authority goes no further in its consideration of this standard.

Next, the Authority turns to the complaint that standard G7 was breached. This standard relates to the use of a deceptive programme practice and has generally been interpreted as involving technical trickery or editing techniques which mislead viewers. It finds no evidence that this occurred here, and concludes that the standard was not breached.

The complaint under standard G12, which relates to the broadcaster’s obligation to be mindful of children, is considered next. In the Authority’s view, the item’s content was not inappropriate for the target audience of teenagers, and it declines to uphold the complaint under this standard. It acknowledges PHARMAC’s concern about the omission of reference to the drug’s serious side effects, and that it would, as a consequence of the broadcast, be requested by name. These matters it considers below.

With reference to the complaint under standard G14, the Authority concludes that as the standard is specific to news reporting, it does not apply to this item. It declines to uphold this aspect.

Conclusion

The Authority recognises that its determination of this complaint results in an unsatisfactory outcome for the complainant. PHARMAC’s real concern was about the naming of the drug which, it believed, would create a demand by teenagers who would not understand that it could only be prescribed in serious cases, or that there were significant side-effects to its use. The Authority has considered on previous occasions complaints which relate to the promotion of a therapeutic product. In Decision No:1998-123 it dealt with the ethical issues raised when the broadcaster advised viewers about a therapeutic product which in that case was available over the counter. There it wrote:

Where a therapeutic product is promoted in an advertisement, the advertiser is obliged to comply with the Code for Therapeutic Advertising, developed by the Advertising Standards Complaints Board. That Code requires, among other things, that the advertisement should comply with the laws of New Zealand, observe a high standard of social responsibility, and not mislead or deceive consumers. Further, any scientific information in an advertisement is required to be presented in a fair and balanced manner. The Authority considers that similar responsibilities also attach to a broadcaster who promotes a therapeutic product within a news programme. In addition, ethical issues may be relevant. On this occasion, the Authority is satisfied – with some reservations – that the broadcaster fulfilled its responsibilities and did not contrive to misrepresent the product’s properties. In particular, it notes the cautious approach taken in the item by the urologist, who was not prepared to endorse the product without first seeing the evidence of its efficacy.

Earlier this year the Authority adjudicated on complaints from the Ministry of Health about items concerning the release of the dietary supplement Lyprinol, which was hailed as a cure for cancer (Decision No: 2000-030 and 031). On that occasion, the balance provisions of standard G6 applied because the story was controversial. It was also presented as breaking news. The complaint under this standard was not upheld because the balance deficiency of the first days was remedied in subsequent days.

While the present complaint can be distinguished on its facts, in that the item dealt with a prescription drug available only through a specialist dermatologist, the ethical issues relating to the product’s apparent promotion remain. This is particularly so as here, on technical grounds, the balance standard was deemed inapplicable and the item’s alleged deficiencies were therefore not addressed by the Authority. It is frustrated in its ability to deal further with the complaint for that reason. At present, television broadcasters are reviewing the code of practice which applies to free-to-air television. The Authority signals its intention to draw the attention of broadcasters again to the need to develop a standard which would apply to complaints about the promotion of medicines and therapeutic products.

For the reasons set forth above, the Authority declines to determine the complaint that standard G6 was breached.

It declines to uphold any other aspect of the complaint.

Signed for and on behalf of the Authority

Rosemary McLeod
Member
6 July 2000

Appendix

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

1.    PHARMAC’s Complaint to Television New Zealand Ltd – 24 March 2000

2.    PHARMAC’s Further Complaint to TVNZ – 4 April 2000

3.    TVNZ’s Initial Response to the Complaint – 10 April 2000

4.    PHARMAC’s letter to TVNZ – 20 April 2000

5.    TVNZ’s Response to the Formal Complaint – 28 April 2000

6.    PHARMAC’s Referral to the Broadcasting Standards Authority – 15 May 2000

7.    TVNZ’s Response to the Authority – 30 May 2000

8.    PHARMAC’s Final Comment – 8 June 2000