BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
One News – item reported that Green Party was calling for an urgent safety review of non-stick cookware – claimed the US Environmental Protection Agency had found possible links between non-stick cookware, cancer and birth defects – veterinarian stated that non-stick pans could be deadly to household birds – allegedly inaccurate and unfair

Findings
Standard 5 (accuracy) – item contained misleading and inaccurate statements – would have unnecessarily alarmed viewers – upheld

Standard 6 (fairness) – not unfair to any person or organisation taking part in the programme – not upheld

Order
Section 13(1)(a) – broadcast of a statement
Section 16(1) – payment of costs to the complainant of $927.50
Section 16(4) – payment of costs to the Crown $2,500.00

This headnote does not form part of the decision

Broadcast

[1] An item on One News broadcast on TV One at 6pm on 28 January 2006 reported that the Green Party was calling for an urgent safety review of non-stick cookware. It stated that the USA’s environmental watchdog (subsequently identified in the item as the US Environmental Protection Agency) had found “possible links with cancer and birth defects” and was asking manufacturers to wind down production.

[2] The report also included comments from a veterinarian who described how fumes from cooking with non-stick pans could be deadly to household birds. The item asked whether the same fumes could harm humans, and went on to say that:

American officials say it is too early to advise people to throw out their non-stick cookware. But they do advise you not to put the pot on the heat for too long before putting food in it, and to only cook at low or medium temperatures.

Complaint

[3] On behalf of Viking Homewares Ltd, Mr M Norden made a formal complaint about the item to Television New Zealand Ltd, the broadcaster. He said that Viking Homewares was an importer and exporter of non-stick cookware, and had been operating for 24 years in New Zealand and Australia.

[4] Mr Norden complained that the report was unfair and inaccurate. The Green Party had based its claims on the chemical Perflurooctanoic Acid (PFOA) which was used during the manufacture of non-stick cookware, he said. However, any PFOA was removed in cookware by the curing process and was not present in the finished product.

[5] The complainant noted that a number of concerned customers had telephoned the company subsequent to the broadcast. He said that the broadcast was alarmist and inaccurate, and there would be a serious effect on Viking Homewares’ business.

[6] In response to a letter from TVNZ, Mr Norden reiterated that both Standard 5 (accuracy) and Standard 6 (fairness) were relevant to the complaint. He submitted that the veterinarian’s suggestion about non-stick cookware harming birds was unfair. Her statement was in conflict with the evidence which showed that PFOA was no longer present in non-stick cookware following the curing process, he said.

Standards

[7] TVNZ assessed the complaint under Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which 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.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[8] TVNZ stated that the Green Party was drawing attention to a possible health risk, and the news media had an obligation to report it. Noting Mr Norden’s statement that PFOA was removed from cookware during the curing process, TVNZ asked why some cookware manufacturers in the United States attached warnings that non-stick products should not be over-heated.

[9] The broadcaster noted that the item pointed out that Americans were not being told to “throw out their non-stick cookware” as a result of the latest research. The item simply reflected the caution expressed in a press release from the EPA dated 25 January 2006 (refer to Appendix 2) which said that “the science is coming in, but the concern is there. So acting now to minimise future releases of PFOA is the right thing to do for our environment and for our health”.

[10] With respect to Standard 5 (accuracy), TVNZ said that the item had accurately reported the fact that the issue had been raised by the Green Party, and accurately reflected the fact that the Party’s concerns were based on the report from the EPA. It had accurately reported that Americans were not being told to throw out their non-stick cookware, but that some American companies were now attaching warning labels to their products. The broadcaster said that the item had also accurately reported the opinion of the veterinarian, and the fact that New Zealand’s Environmental Risk Management Authority (ERMA) had not yet seen the research findings referred to by the Green Party.

[11] TVNZ maintained that nobody had been quoted inaccurately, and that the item truthfully reflected the thrust of the Green Party’s release. It did not uphold the accuracy complaint.

[12] Turning to Standard 6 (fairness), TVNZ contended that the veterinarian’s remarks were used in the context of genuinely held opinion from a person with the expertise and knowledge to make such an observation. The broadcaster referred to guideline 6d which states that “broadcasters should acknowledge the rights of individuals to express their own opinions”. The veterinarian’s comments had added credibility when considered alongside the EPA release which said that “animal studies have indicated effects of concern”. TVNZ said:

The [complaints] committee sense that you may have considered it unfair that a product you distribute should come under the media spotlight in this way. While the committee understood your concern, it noted that the news media can hardly be blamed for reporting it if public concerns are expressed about the safety of certain products. It would certainly be blamed (and rightly so) if the worst were to happen, and it was subsequently revealed that the media knew about the concerns but did nothing to draw them to the public’s attention.

[13] TVNZ declined to uphold the fairness complaint.

Referral to the Authority

[14] Dissatisfied with TVNZ’s response, Mr Norden referred Viking Homewares’ complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He reiterated his statement that PFOA, which had been suspected of causing emissions at the time of manufacture, was eliminated in the curing process and was not present in non-stick cookware.

[15] Mr Norden noted that concerns about PFOA dated back to 2003 when the American Environmental Working Group asked the US Consumer Product Safety Commission to have a warning label on non-stick cookware. This was rejected, he said. Further, China and Denmark had conducted their own independent tests on non-stick cookware and had concluded that it was completely safe when used as intended.

[16] The complainant pointed out that the warning labels currently attached to non-stick cookware warned that the products should not be over-heated. This was because excessive heat damaged the surface and shortened the life of the non-stick coating, he said.

[17] While declining to argue with the veterinarian’s assertion that fumes from non-stick cookware could be deadly to household birds, Mr Norden pointed out that it was not only non-stick cookware which could kill birds. He enclosed a statement to this effect from the director of Special Species Medicine University, at the Pennsylvania School of Veterinary Medicine.

[18] In response to the item’s question about whether the same fumes could harm humans, Mr Norden reiterated that PFOA was emitted into the atmosphere at the time of manufacture, but was not present in the finished product. Mr Norden contended that the programme was biased and contained outdated and inaccurate information.

Broadcaster’s Response to the Authority

[19] In its response to the Authority, TVNZ noted that the Green Party’s release, which was the subject of the story, had been based on material from the EPA released three days prior to the broadcast. In TVNZ’s view, the EPA was a credible and reliable source.

Complainant’s Final Comment

[20] Mr Norden submitted that the Green Party had seized upon the EPA’s press release as a “new sensational development”, when in fact discussions had been ongoing for some years between environmental agencies and non-stick manufacturers. He noted that the item had not referred to the presence of PFOA in any other products such as carpets, paper and textiles. It had only referred to non-stick cookware, where the PFOA used in manufacture was totally eliminated in the curing process, he said.

[21] The complainant contended that the programme was misleading and reckless, and he argued that both TVNZ and the Green Party had been negligent in not checking the facts about PFOA and non-stick cookware.

Further Information Requested by the Authority

[22] The Authority asked TVNZ for further information about the sources of information given in the item, including the “links with cancer and birth defects” and the recommendations about the use of non-stick cookware.

[23] TVNZ stated that the link between non-stick cookware, cancer and birth defects had been made by Ms Sue Kedgley from the Green Party when she said:

There’s no point in using chemicals in everyday life such as our frypans that may cause cancer or birth defects.

[24] The broadcaster said that Ms Kedgley had used the word “may”, implying that she was expressing an opinion based on what she knew about PFOA drawn not only from the EPA’s press release, but from the information she had gathered as the Green Party spokesperson. TVNZ added:

With respect to the Authority and the complainant we stress that no news organisation could function if it had to be sure of the absolute veracity of what a politician, or subject expert had to say in the context of a news item. Our obligation as disseminators of news is to go to such people and ask them to explain themselves. In this case the question was, “why were the Greens calling for an urgent safety review?”

[25] Having heard from Ms Kedgley, One News had then spoken to the veterinarian about the harm suffered by some animals exposed to cooking fumes from non-stick products. TVNZ provided an article from the internet which, it said, reflected official concern in America about PFOA.

[26] With respect to the recommendations about the use of non-stick cookware, TVNZ asserted that the comments in the item were:

…a fair and reasonable translation of the bureaucratic language of the press release where it says that the aim is to reduce the presence of PFOA in products by 95 percent no later than 2010, and to work towards eliminating those sources of exposure five years after that.

[27] The broadcaster stressed that the item was not a “jack up” between the Green Party and One News. It said that the Green Party’s release was based on an authoritative American government press handout, and this had indicated to TVNZ that it was a matter worth reporting.

[28] The Authority asked TVNZ to provide a copy of the Green Party’s release. The broadcaster stated that there was “no printed release as such”, but the release was the Green Party offering Ms Kedgley as its spokesperson to comment on the EPA press release. It said that the story had been instigated by TVNZ, not the Green Party, because the broadcaster was aware that the EPA release had received media coverage in Australia and America.

[29] TVNZ wrote that its first approach was not to the Green Party, but to the Ministry of Health, which in turn referred it to ERMA whose brief reaction had been included in the item. TVNZ’s approach to the Green Party had been prompted by its awareness of the Party’s interest in such issues.

Further Information Provided by the Broadcaster

[30] TVNZ provided the Authority with a copy of an article from the Weekend Herald entitled “Health fears persist over non-stick pots and pans”. TVNZ submitted that this article was relevant because it demonstrated a significant level of on-going public interest in the issue. Further, the broadcaster said that the article’s content and tone reflected the “cautionary approach” taken by One News when it presented the item complained about.

Further Information Provided by the Complainant

[31] In response to the information provided by TVNZ, Mr Norden noted that a One News item on 11 May 2006 had discussed the same material as the Weekend Herald article. He said that this item had been fair and well balanced because it had included comment from a Du Pont Australia spokesman and “an official from a New Zealand department”.

[32] The complainant refuted the assertions made in the Weekend Herald article and maintained that non-stick cookware was completely safe when used in accordance with directions.

[33] In a further letter, Mr Norden outlined the adverse effects suffered by Viking Homewares as a result of the broadcast. He submitted that the item would have been viewed by approximately 360,000 people, and those viewers would have mentioned it to friends and relatives.

Authority's Determination

[34] 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.

Preliminary observations

[35] In its responses, TVNZ stated that the Green Party had based its information on a press release from the EPA dated 25 January 2006. The broadcaster attached a copy of this release, entitled “EPA Seeking PFOA Reductions” (refer to Appendix 2).

[36] The Authority summarises the contents of the EPA’s press release below:

• The EPA was launching a programme inviting companies to reduce PFOA releases and its presence in products.
• PFOA is an essential processing aid in the manufacture of fluoropolymers, which are used in the manufacture of a wide range of non-stick products. PFOA may also be produced by the breakdown of fluorotelomers, which are used to impart water-, stain- and grease-resistance to carpets, paper and textiles.
• Participating companies were being asked to reduce sources of exposure to PFOA by 95 percent by 2010.
• The programme was a result of the EPA’s on-going process to understand how people were being exposed to PFOA and what, if any, concerns those exposures may pose.

[37] In other words, the EPA’s press release was not about non-stick cookware. It was about a strategy to reduce the amount of PFOA in products, and the amount of PFOA emitted into the atmosphere during the manufacture of products. The Authority notes that the only mention of non-stick cookware in the press release was in a list of products which are manufactured using PFOA.

Standard 5 (accuracy)

[38] The essence of TVNZ’s argument in relation to accuracy was that the item accurately reported that the Green Party had raised the issue about non-stick cookware, and that the Party’s concerns were based on the EPA’s press release. It maintained that news organisations could not be expected to ensure the absolute veracity of what a politician said in the context of a news item.

[39] Contrary to TVNZ’s view, the Authority finds that the item went much further than simply reporting the Green Party’s concerns. The Authority considers that the item made several statements which purported to represent the EPA’s stance on the safety of non-stick cookware. It agrees with the complainant that the One News item translated the EPA’s concerns about PFOA emissions in its press release into concerns about non-stick cookware. In light of this finding, the Authority finds that the item was misleading and inaccurate for the reasons outlined below.

[40] First, the introduction to the item stated that the Green Party was “calling for an urgent safety review of non-stick cookware” after the USA’s environmental watchdog (the EPA) had found “links with cancer and birth defects”. In its response to the Authority’s request for the source of this statement, TVNZ stated that the link between non-stick cookware and cancer was made only by Sue Kedgley of the Green Party. While Ms Kedgley did refer to this in her statement, the introduction also clearly stated that “the USA’s environmental watchdog has found links with cancer and birth defects”. In the Authority’s view, this statement went further than simply reporting the Green Party’s views; it made a statement of fact about the EPA’s findings on non-stick cookware.

[41] As discussed in paragraph [37], the subject of the EPA’s press release was not health concerns about non-stick cookware; it was the launch of a programme to reduce PFOA in the atmosphere and in products. While TVNZ says that the news item was based on the EPA’s press release, the Authority observes that nothing in the EPA’s press release suggests that it has found “possible links” between non-stick cookware, cancer and birth defects. Further, TVNZ has not pointed to any other information source upon which it based this statement. In these circumstances, where the broadcaster has not provided any information to support the claims it has made in the item, the Authority considers that the accuracy standard was breached.

[42] Second, the Authority considers that it was misleading to state that the EPA was “asking manufacturers to wind down production” of non-stick cookware. In its press release, the EPA was in fact asking manufacturers to reduce the amount of PFOA emitted during the manufacture of such products, and its presence in other products.

[43] Overall, the Authority finds that viewers would have been left with the inaccurate impression that the EPA considered non-stick cookware to be dangerous to their health. As outlined above, TVNZ has not provided the Authority with any information to suggest that this was a truthful representation of the EPA’s stance with respect to non-stick cookware. The EPA’s press release – on which TVNZ says the item was based – did not state that non-stick cookware was potentially dangerous. Rather, it focused on a chemical used in the manufacture of those products.

[44] The Authority also notes the reporter’s statement that “American officials…advise you not to put the pot on the heat for too long before putting food in it, and to only cook at low or medium temperatures”. The Authority disagrees with TVNZ’s assertion that this was “a fair and reasonable translation of the bureaucratic language” of the EPA’s press release. The EPA’s press release made no recommendations about the use of non-stick cookware; in fact, the only mention of non-stick cookware was in a list of products which are manufactured using PFOA.

[45] Standard 5 places an obligation upon broadcasters to ensure that news items are truthful and accurate on points of fact. On this occasion, TVNZ has not provided the Authority with any information which supports the statements made in the item about the EPA’s stance on non-stick cookware, despite being requested to do so. In these circumstances, the Authority concludes that the accuracy standard was breached.

[46] Furthermore, the Authority is of the view that this item contravened the requirements of guideline 5b to Standard 5. This guideline provides that broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers. The item made several statements which purported to represent the EPA’s stance about non-stick cookware, and TVNZ has been unable to support those statements. The Authority agrees with TVNZ that the EPA is a credible and reliable source, and accordingly it considers that viewers would have taken very seriously the message that the EPA had found a link between non-stick cookware and cancer. Because non-stick cookware is widely used, the Authority considers that viewers would have been unnecessarily alarmed by the message that the EPA believed non-stick cookware posed a risk to their health.

[47] Accordingly, the Authority upholds the Standard 5 complaint.

Standard 6 (fairness)

[48] The complainant argued that it was unfair to broadcast the veterinarian’s statement that fumes from non-stick cookware could be deadly to household birds. The information available to the Authority suggests that birds have a unique respiratory system which makes them particularly sensitive. This was not explained in the item.

[49] However, the Authority notes that Standard 6 (fairness) only applies to “any person or organisation taking part or referred to” in a programme. Because the complainant has not alleged that the item was unfair to any such person or organisation, the Authority does not uphold the fairness complaint.

Bill of Rights

[50] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on One News on 28 January 2006 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice. It declines to uphold the Standard 6 complaint.

[51] Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[52] On behalf of Viking Homewares Ltd, Mr Norden submitted that the Authority should order TVNZ to broadcast an apology and a statement acknowledging “that non-stick cookware is safe to use”. He contended that the statement should be broadcast during peak time on four separate occasions, and should be reprinted in the major city daily newspapers on at least two occasions in a prominent position.

[53] Mr Norden sought $5,000 reimbursement for reasonable costs and expenses. He provided an invoice from the company estimating the cost of its time as $2,773.13, and an invoice from the company’s lawyer for the amount of $2,587.50. Mr Norden also submitted that costs to the Crown should be ordered, contending that there had been a detrimental effect on Viking Homewares’ business in New Zealand as a result of the item.

[54] In response, TVNZ said that it was prepared to broadcast a “clarifying statement”. However, it did not believe that it should be required to stress that “non-stick cookware is safe” because the information from the EPA did not state this as a fact.

[55] The Authority agrees that it is appropriate to order TVNZ to broadcast a statement summarising the Authority’s decision and clarifying the EPA’s stance with respect to non-stick cookware. However, because the Authority’s decision does not include a finding that “non-stick cookware is safe to use”, the Authority agrees with TVNZ that this should not form part of the statement. The Authority’s usual practice is to order the broadcast of a statement on only one occasion, and no special circumstances exist in this case which would lead the Authority to depart from this practice.

[56] The Authority notes Viking Homewares’ submission that TVNZ should publish a statement in several major newspapers. This order has previously been made only in exceptional circumstances. On this occasion, the Authority believes that the on-air statement and the publicity attracted by the publication of its decision will be sufficient.

[57] The Authority declines to order an apology to Viking Homewares Ltd, because the company was not referred to in the item complained about.

[58] Mr Norden has submitted an invoice for the company’s time in bringing the complaint. The Authority notes that costs awards made under section 16(1) of the Broadcasting Act 1989 are primarily intended to cover a complainant’s legal costs, and the Authority has not previously awarded a complainant costs for its time in making a complaint. It does not consider that such an order would be appropriate on this occasion. However, the Authority awards the complainant $65 for the cost of postage, faxes and photocopying.

[59] In determining whether to order a contribution towards legal costs, the Authority has taken into account the relatively straightforward complaints process. However, the Authority considers that it was not unreasonable for the complainant to seek legal advice in respect of submissions on orders. It considers a reasonable award in this case to be one-third of the complainant’s legal costs, i.e. $862.50.

[60] The Authority has determined that the One News item would have unnecessarily alarmed viewers, and it considers that the item was a significant departure from the standards of journalism that viewers are entitled to expect. In these circumstances, it concludes that TVNZ should pay costs to the Crown in the amount of $2,500.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision during One News, at a time to be approved by the Authority
• contain a comprehensive summary of the Authority’s decision and clarify the EPA’s stance with respect to non-stick cookware.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $927.50, within one month of the date of this decision.

3. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,500, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 October 2006

Appendix 1

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

1. Viking Homewares Ltd’s formal complaint – 9 February 2006
2. TVNZ’s decision on the formal complaint – 28 February 2006
3. Viking Homewares Ltd’s referral to the Authority – 23 March 2006
4. TVNZ’s response to the Authority – 6 April 2006
5. Viking Homewares Ltd’s final comment – 17 April 2006
6. Further information provided by TVNZ – 1 May 2006
7. Further information provided by TVNZ – 2 May 2006
8. Further information provided by TVNZ – 15 May 2006
9. Further information provided by Viking Homewares Ltd – 24 May 2006
10. Further information provided by TVNZ – 30 May 2006
11. Further information provided by Viking Homewares Ltd – 6 June 2006
12. Submissions on orders by Viking Homewares Ltd – 14 August 2006
13. Submissions on orders by TVNZ – 28 August 2006
14. Further submissions from Viking Homewares Ltd – 4 September 2006
    

Appendix 2

Transcript of EPA press release

EPA Seeking PFOA Reductions

Release date: 01/25/2006

(Washington, D.C.-Jan. 25, 2006) EPA is launching a global stewardship program inviting companies to reduce PFOA (Perfluorooctanoic acid) releases and its presence in products by 95 percent by no later than 2010 and to work toward eliminating these sources of exposure five years after that but no later than 2015.

PFOA is an essential processing aid in the manufacture of fluoropolymers, which are used in the manufacture of a wide range of non-stick and stain-resistant surfaces and products. PFOA may also be produced by the breakdown of fluorotelomers, which are used to impart water, stain, and grease resistance to carpets, paper and textile.

PFOA is persistent in the environment, it has been detected in low levels in wildlife and humans, and animal studies have indicated effects of concern.

“The science is still coming in, but the concern is there so acting now to minimize future releases of PFOA is the right thing to do for our environment and our health,” said Susan B. Hazen, acting assistant administrator of EPA’s Office of Prevention, Pesticides and Toxic Substances. “EPA is please to provide companies the opportunity to step up to the plate and demonstrate their leadership in protecting our global environment.”

Participating companies will commit to reduce by 95 percent facility emissions and product content levels of PFOA, PFOA precursors, and higher homologue chemicals, but no later than 2010, with the year 2000 as the baseline for measuring reductions. The program also calls for companies to commit to work towards eliminating these sources of PFOA exposure five years after attaining the 95 percent reduction but no later than 2015. Companies are being asked to meet these commitments in the United States as well as in their global operations.

Also, participants are being asked to provide their commitment to EPA by March 1, 2006, and to submit their year 2000 baseline numbers for emissions and product content to EPA by Oct. 31, 2006. Annual public reports on their progress toward the goals will be due in October of each successive year. To ensure comparable reporting of reductions, participating companies must commit to work with EPA and others to develop and agree upon analytical standards and laboratory methods for these chemicals. EPA will also initiate efforts to add PFOA and related chemicals to the Toxics Release Inventory (TRI) to help monitor the results of the stewardship program.

This stewardship program is a result of the Agency’s on-going process with industry, stakeholders, consumer groups, and interested parties to identify and develop the scientific information needed to fully understand how people are being exposed to PFOA and what, if any, concerns those exposures may pose. Industry has responded by initiating new studies, including through enforceable as well as voluntary testing efforts, and this important data gathering effort will continue as an additional element under the Stewardship Program.

PFOA, also known as C8 or Ammonium Perfluorooctanoate (APFO), is used in the manufacturing process of fluoropolymers. Fluoropolymers impart desirable properties, including fire resistance and oil, stain, grease, and water repellency. They are used to provide non-stick surfaces on cookware and waterproof, breathable membranes for clothing. PFOA can also be found as an impurity in the production of some products.

For more information on the Agency actions on PFOA or to read any available commitment letters, visit: http://www.epa.gov/opptintr/pfoa/pfoastewardship.htm.