Dated: 25 June 2008 Decision No:  2007-114

Complainant RAYMOND GOUGH of Manukau Broadcaster TVWORKS LTD broadcasting as TV3

 

 

 

 

Members

Broadcast

[1]   An episode of Target, a consumer affairs programme, was broadcast on TV3 at 7.30pm on 21 August 2007. The programme discussed the use of formaldehyde, “a highly toxic chemical that can be fatal”, in the manufacture of clothing. The presenter stated that formaldehyde was used to help keep fabric stain-free, wrinkle-free and disinfected. Under New Zealand labeling laws, the programme said, it was compulsory to include the fibre content of clothing, but there was a five percent allowance “on the content of the fabric”.

[2]   Target tested a random selection of clothing for the total levels of formaldehyde, including “free formaldehyde” which, the presenter said, “people are initially exposed to, and formaldehyde that’s been chemically bound into the fabric”. The presenter stated:

So our results are the worst case scenario. They include formaldehyde that could be released when that chemical bond breaks down, and not just free levels of formaldehyde. The chemical bond can break down with things like sweating, exposure to the sun, and general wear and tear.

[3]   The presenter said that “those sensitive to formaldehyde experience crawling sensations, at only two to three parts per million of free formaldehyde”, and exposure to formaldehyde could cause detrimental effects on the human body such as “rashes, headaches, dizziness, joint pain, fatigue, asthma and cancer”. He then listed the results of the Target random trial as follows:

The girls’ top had a total reading of 230 parts per million, the women’s corduroys a total of 290. School shorts total 630, “Spiderman” t-shirt total 1400, pyjamas total 3400, children’s pants total 16,000, 100% woollen pants total 17,000, [trial participant’s] 100% cotton trousers total 17,000, stain-resistant pants total 18,000.

[4]   The item included comment from Green Party health spokesperson Sue Kedgley, who stated, “We shouldn’t even be permitting formaldehyde to be used in the clothing, let alone at these incredibly dangerously high levels”. She contended that the Government should be testing for chemicals in clothing on a regular basis and recalling products such as those tested by Target.

[5]   The programme also noted that an article in the “China Daily” had exposed results of safety tests on children’s clothing which revealed that only half of the clothing was of “passable quality”. The presenter said that this was important because China was “by far our largest supplier of imported clothing and textiles”. Target sent four items of children’s clothing to the laboratory to test the pH levels, noting that Chinese standards stated that levels outside of 4 to 7.5 on the pH scale could damage children’s skin. The presenter stated that two out of the four samples had come back with pH levels that would be unacceptable in China.

[6]   The programme also said that harmful dyes and “known carcinogens” called aromatic amines were present in 10 percent of the clothing tested in China. The presenter said “We tried to test our samples for amine dye, but we couldn’t find a lab in New Zealand or Australia that could do such a test”. The item ended with the following comments:

The Ministry of Consumer Affairs needs to be seeking out potential risks like this, rather than waiting for complaints to come to them. Shame on them.

In the meantime there are things you can do about some chemicals in clothes and even bedding. At room temperature formaldehyde is a gas and allergy specialists suggest it does wash out of clothing. So washing and airing all your clothes in the sun helps reduce levels.

And buying right can also help. You’re less likely to find formaldehyde in 100 percent silks, polyester, acrylics, nylon, spandex, flannel, denim and easily creased linen. Generally garments that are soft and easily wrinkled.

If you’re really worried about chemicals, soak, wash and air clothing repeatedly. You can wash clothing in baking soda – just add a drop of your favourite scent as a natural alternative to washing powders.

Complaint

[7]   Raymond Gough made a formal complaint about the programme to TVWorks Ltd, the broadcaster, alleging that it was inaccurate and misleading and damaging to New Zealand’s international reputation. He contended that the programme had claimed formaldehyde in clothes made in China were at levels 900 times higher than was safe. Mr Gough noted that the Retailers’ Association had commissioned AgResearch in New Zealand and textile testing centres in Shanghai and Hong Kong to conduct tests. Both had detected no formaldehyde in the garments tested, he said.

[8]   The complainant noted that the CEO of the Retailers’ Association, John Albertson, had stated that Target had applied the “wrong test and the one it used wasn’t based on acceptable international standards”. New Zealand’s international reputation had been damaged, the complainant wrote, as the BBC had broadcast Target’s report around the world and posted it on the BBC’s website. In Mr Gough’s view, the broadcaster should publicly admit that it was wrong and apologise to the general public for making “unsubstantiated claims”.

[9]   In response to a request for further information from the broadcaster, the complainant said that his original letter had clearly stated the grounds of his complaint. He reiterated his view that the programme was “inaccurate and misleading” and lacked balance and fairness. Mr Gough provided a copy of a press release by the Retailers’ Association which stated that the process used by the Target show was “flawed because it is not based on accepted international standards”, and that the programme had “applied the wrong test”. The press release concluded:

Based on independent tests, clothes and textiles sold in New Zealand do not contain levels of formaldehyde in excess of international safe standards.

[10]   In the complainant’s view, the Target report was damaging to New Zealand’s reputation as a reliable and trustworthy trading partner.

Standards

[11]   Standard 5 and guideline 5b of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They 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.

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

Broadcaster's Response to the Complainant

[12]   TVWorks stated that it had sought a response from the independent production company that produced Target. The producer had advised the broadcaster that, at the time of the investigation, there were no standards or guidelines in place in New Zealand for safe formaldehyde levels in clothing, nor was there an accepted international standard. The producer said that it was only after there had been publicity for the story that the Ministry of Consumer Affairs had chosen to adopt the European standards for the safe amount of free formaldehyde in clothing and textiles.

[13]   In the producer’s view, the focus of the story was the lack of regulation in New Zealand, and the programme was not inaccurate. The producer noted that it had accurately reported the results obtained from the laboratory tests, and that Target had made it clear that it had tested for total formaldehyde which was a “worst case scenario”. The producer wrote:

This was a perfectly valid point of view. The laboratory scientists at the time and scientists we have since spoken to all express concern at the very high level of total formaldehyde found in some of the items of clothing we tested – 18,000 parts per million equates to 1.8% or almost 1/50th of a garment. So one fiftieth of a clothing item is made up of formaldehyde, mostly bonded formaldehyde. However bonded formaldehyde can become free formaldehyde over time as the fibres of the garment are subjected to wear and tear. This was mentioned in the programme.

[14]   TVWorks did not accept that the programme was inaccurate. It noted that the programme did not state, as alleged by the complainant, that formaldehyde in clothes made in China was at levels 900 times higher than what was safe. In the broadcaster’s view, Mr Gough had based his complaint on the press release from the Retailers’ Association, and it alleged that the association had “a vested interest in suggesting there is no cause for alarm”. The producer commented:

Firstly, Target understands that only a few items were tested by the members of the Retailers’ Association. Secondly, there is no indication that their members tested clothing items from the same brand and batch number as those tested by Target. Thirdly, no results (or documentation) were released to support the claim that low levels of formaldehyde were found. The “conclusion” reached at the bottom of the press release is hardly conclusive and certainly not concrete enough to provide the foundation for a complaint to the BSA.

[15]   The broadcaster noted that, since the programme had gone to air, Target had retested the original trousers that had prompted the investigation under the guidelines established by the Ministry of Consumer Affairs. The trousers had given a result of 160 parts per million, it noted, which was eight times the safe level. It maintained that Target was “justified in drawing attention to this very serious issue”.

[16]   TVWorks declined to uphold the complaint.

Referral to the Authority

[17]   Dissatisfied with the broadcaster’s response, Mr Gough referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. As a viewer, the complainant said he was struck by what seemed to be “a sensation seeking programme raising unjustified fears concerning the levels of formaldehyde in imported clothing”.

[18]   Mr Gough stated that the tests carried out after the programme by the Retailers’ Association, The Warehouse, Pumpkin Patch, and the Ministry of Consumer Affairs indicated that the programme’s claim that imported Chinese clothing contained dangerous levels of formaldehyde was false and misleading.

[19]   The complainant provided excerpts from a statement by the Ministry of Consumer Affairs, which stated that 97 out of the 99 garments it had tested had “no detectable or very low levels of formaldehyde”. The statement said that Target had “used the wrong testing method, which is why their results were so dramatically different”. In line with best practice, the Ministry said it had tested for free formaldehyde only, whereas Target had tested for combined free and bound formaldehyde and compared this with international standards for free formaldehyde.

Broadcaster’s Response to the Authority

[20]   In its response to the Authority, TVWorks noted that there had been no testing standard in place in New Zealand to test imported clothing for formaldehyde levels. It argued that Target had been responsible for ensuring that:

• consumers now knew that formaldehyde was used in clothing
• consumers now knew that there was a level of formaldehyde which could cause a reaction in some wearers
• the government had introduced testing procedures for imported clothing
  
• manufacturers who, to that point, had taken no steps to test for formaldehyde levels, were now doing so.

[21]   The broadcaster stated that there was no evidence that manufacturers, importers, or retailers had suffered any losses as a result of the programme.

[22]   TVWorks argued that Target had made it clear that some people experienced problems at a certain level of free formaldehyde, and what was measured by the laboratory was total formaldehyde. The programme had also made it clear, it wrote, that total formaldehyde (chemically bound into the clothing fabric) could be “freed” by wearing and washing the clothing.

[23]   In the broadcaster’s view, the programme itself (unlike the media attention it received) was not sensationalist, nor did it raise any unjustified or inappropriate concerns. It stated that there was a high level of public interest in ensuring that imported goods were subjected to appropriate testing so that consumers could make an informed decision prior to purchase. This, it said, was the primary function of a consumer rights programme like Target.

Complainant’s Final Comment

[24]   Mr Gough reiterated his view that the programme had created “totally unjustified fears” in New Zealand and overseas about wearing imported Chinese clothing.  He noted that the Ministry of Consumer Affairs and a number of major retailers collectively had tested over 300 garments, and only two had presented results over the acceptable levels. Once washed, the re-test of the garments had given a result well within acceptable levels, he wrote.

Further Information Requested by the Authority

[25]   The Authority asked TVWorks to comment on the results contained in the Ministry of Consumer Affairs’ report and in the following section of the press release:

Twenty parts per million is accepted internationally as the zero mark under which formaldehyde in fabric is not detectable. Ms Tizard says the Ministry used the correct method of testing and its results were robust and credible. “Target used the wrong testing method, which is why their results were so dramatically different.”
“In line with international best practice for testing clothing, the Ministry tested for free formaldehyde only. Target tested for combined free and bound formaldehyde. They then compared this with international standards for free formaldehyde.”
“It was like testing apples and oranges against a standard for apples only.”

[26]   The Authority also asked TVWorks to outline the basis for the following statement in the Target item:

To put it into perspective, those sensitive to formaldehyde experience crawling sensations, at only two to three parts per million of free formaldehyde. Exposure to concentrations of 20 parts per million can cause detrimental effects on the human body – rashes, headaches, dizziness, joint pain, fatigue, asthma and cancer.

[27]   In response, TVWorks noted that much of the information and some of the “science” around this issue had originated (as opposed to being in existence and undiscovered) after the Target programme. It also pointed out that Target had relied on a reputable testing facility to obtain the results it published, and said that the programme had faithfully reflected those results.

[28]   The broadcaster provided answers from the producer of Target in response to the Authority’s questions. The producer stated that the Ministry did not test the same items as were tested by Target as the Ministry had only been given a description of the product (not the brand name or supplier).

[29]   The producer said that the Ministry’s statement that “twenty parts per million is accepted internationally as the zero mark under which formaldehyde in fabric is not detectable” was literally true. However, it did not tell the whole story. The producer noted that while this was a common benchmark in Europe for “free” formaldehyde, it was not universally accepted. Further, the producer wrote, an examination of medical literature on the subject showed that there was evidence that exposure to much smaller levels could cause irritation and other much worse symptoms. The producer gave the example of Lloyd Tataryn’s book Formaldehyde on Trial (published by James Lorimer and Co) which pointed to a number of studies. The producer referred to the following passage from pages 15 and 16 of the book:

…The first adverse Health Symptoms associated with formaldehyde exposure – burning and tearing of the eyes, general irritation of the upper respiratory tract – usually appear at concentrations beginning at 0.01 parts per million (ppm). Concentrations of 0.8-1.0 ppm can produce bronchitis and asthma; exposures of 10-20 ppm can produce severe coughing, a feeling of pressure in the head, headaches and heart palpitations; exposure of 50-100 ppm can cause serious lung damage and death.

[30]   The producer noted that Target had engaged and instructed a professional laboratory (AgriQuality, now known as AsureQuality) to carry out the tests. It had been clearly instructed as to the purpose of the tests and Target relied on the laboratory to carry out the appropriate tests and supply results. The producer said:

We now understand that there are three tests that can be performed on fabric; fabric can be tested for “free” formaldehyde, “bonded” formaldehyde or “total” formaldehyde. But the lab did not make us aware of these options for testing initially. The initial tests that the lab did for us were for “total” formaldehyde and the arguments that pertain to that test and the potential for bonded formaldehyde to become free formaldehyde have been traversed in our previous submission.

[31]   However, the producer added, after the programme Target had re-tested the trousers that had alerted them to the situation in the first place, and the trousers showed 160 ppm of “free” formaldehyde. This was eight times the new standard adopted by the Ministry, the producer said, so Target was satisfied that on any test they exceeded the recommended levels.

[32]   Responding to the Authority’s request for comment in relation to the presenter’s statement outlined in paragraph [26], the producer contended that numerous sources gave similar information, such as the United States Environmental Protection Agency (EPA) and the Allergy Sensitivity and Environmental Health Association Qld Inc (ASED).

Further Submission from the Complainant

[33]   Mr Gough noted that clothing made in New Zealand, and imported clothing, had been worn for years by New Zealanders without any recorded medical problems. He contended that the small number of items that may have exceeded the international standards came well within that standard after a single wash.

Further information requested by the Authority

[34]   The Authority asked TVWorks to provide it with the specific material from the EPA and ASED, as referred to in paragraph [32].

[35]   TVWorks provided the Authority with two articles. The first article was from the website www.associatedcontent.com and was entitled “Should you wash new clothes? – They could be laced with formaldehyde”. The article contained the following passage:

It’s difficult to identify clothes that might contain formaldehyde because there are no labels that identify the chemicals used in the processing. So, unless the clothing is identified as one hundred percent organic, they should be laundered. Formaldehyde is a naturally occurring compound and is a gas at ambient (room) temperature. It’s even in our bodies and in the air, but in large enough concentrations, it’s harmful. Formaldehyde is an excellent preservative and has many beneficial uses, but because it’s an identified carcinogen, it has to be handled carefully with gloves or respirator masks to avoid inhalation or contact. Exposure of formaldehyde in concentrations of 20 parts per million can cause detrimental effects to the human body. Symptoms of exposure include vomiting and generalized pain. If the concentration is high enough, the exposed person might slip into a coma and die. Several agencies like the Environmental Protection Agency (EPA) have studied the effects of formaldehyde and determined that it is likely a human carcinogen.

[36]   The second source provided by TVWorks was an information sheet from the MFL Occupational Health Centre Inc website¹. The broadcaster pointed specifically to the following passages and table from the information sheet:

A large number of studies have investigated the potential health effects of formaldehyde (Table 3). The range of exposures reported to cause sensory irritation is quite broad, and some individuals become symptomatic at lower levels of exposure. The level of discomfort reported is also subjective. Some people may report mild discomfort while others report moderate or no discomfort at similar exposures. Individuals have reported eye irritation, throat irritation, fatigue, headache, and nausea in environmental air concentrations between 0.1 and 1 PPM.

Table 3

Human Adverse Health Effects Associated with Inhalation of Various Concentrations of Formaldehyde, Selected Studies
Reported Health Effects	Formaldehyde Concentrations (PPM)
None reported	0.05
Odour Threshold	0.05-1.0
Eye irritation*	0.01-2.0
Upper airway irritation/increased nasal airway resistance	0.1-25
Lower airway and chronic pulmonary obstruction	5-30
Pulmonary edema, inflammation, pneumonia	50-100
Death	100+
*Eye irritation reports if formaldehyde levels of 0.01 PPM occurred during exposure with other pollutants

• The United States National Research Council has concluded formaldehyde can produce a sensation of eye irritation in some individuals at 0.5 PPM.
• The World Health Organisation Working Group on Assessment and Monitoring of Exposure to Indoor Air Pollutants has concluded that indoor formaldehyde concentrations of less than 0.06 PPM were of limited or no concern while a “concentration of concern” was above 0.12 PPM.
• Although workers exposed to levels of formaldehyde between 0.12 and 1.6 PPM reported an increased frequency of irritant symptoms to the eyes, nose and throat, they exhibited no change in lung function.

  In summary, odour detection can begin as low as 0.05 PPM and some individuals may also experience eye irritation at this level. As the level of exposure increases, more individuals may experience eye irritation and upper airway and nasal symptoms can occur. Levels up to 3 PPM have not led to tightening of the airways in asthmatics, but these individuals will complain of more symptoms.

Authority's Determination

[37]   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.

[38]   Mr Gough’s essential concern is that Target misled consumers by inaccurately reporting that there were dangerously high levels of formaldehyde in imported clothing.

[39]   Looking first at the testing method used by Target, the Authority notes that the laboratory conducted a test for the “total” levels of formaldehyde (both free and bound).The presenter explained the testing method in the following terms:

We then asked the lab to test for formaldehyde. They tested the total levels of formaldehyde. This includes free formaldehyde, which people are initially exposed to, and formaldehyde that’s been chemically bound into the fabric.
So our results are the worst case scenario. They include formaldehyde that could be released when that chemical bond breaks down, and not just free levels of formaldehyde. The chemical bond can break down with things like sweating, exposure to the sun, and general wear and tear.

[40]   According to the Ministry of Consumer Affairs report (Evaluation of Alleged Unacceptable Formaldehyde Levels in Clothing), the internationally accepted method for testing textile formaldehyde levels measures free formaldehyde only. This is on the basis that adverse health effects from formaldehydes in textiles are likely to be skin reactions to “free or easily hydrolysable”² (reacts with water) formaldehyde.

[41]   To present a programme that would accurately inform viewers about whether the levels of formaldehyde in imported clothing in New Zealand were dangerous, the Authority finds that the broadcaster would have had to adopt the standard internationally accepted method for measuring formaldehyde in clothing – that is, to test for levels of free formaldehyde only. By testing for total (i.e. free and bound) formaldehyde, Target produced results that could not be validly compared to the most stringent international limits for formaldehyde in clothing, which are based on free formaldehyde only. Yet, Target compared its results with a benchmark based on levels of free formaldehyde: the 20 parts per million that the programme said was the point at which detrimental effects could be experienced.

[42]   The broadcaster stated that it relied on the laboratory to “carry out the appropriate tests and supply results”. However, the broadcaster cannot abdicate its responsibility to present an accurate programme. Having received test results such as those outlined in the programme – with some clothing returning 900 times more than the benchmark of 20ppm being used by Target – the onus was on the broadcaster to ensure that the comparisons being made in the programme were valid and accurate.

[43]   The Authority finds that Target was misleading and inaccurate in comparing the total formaldehyde levels against a benchmark of 20ppm of free formaldehyde. The presenter said:

Exposure to concentrations of 20 parts per million can cause detrimental effects on the human body – rashes, headaches, dizziness, joint pain, fatigue, asthma and cancer.

[44]   A banner stating “detrimental effects: 20ppm” remained on the screen as viewers were told that the imported clothing had returned test results of up to 18,000 parts per million of formaldehyde. The presenter described them as “shocking results” and “unbelievable”, and Sue Kedgley commented that they were “incredibly dangerously high levels”.

[45]   However, according to the Ministry’s press release, 20ppm is “accepted internationally as the zero mark under which formaldehyde in fabric is not detectable”. The report also gives some information about the international regulated limits of free formaldehyde in clothing which, it says, “show a fairly diverse spread”. The following table from page 6 of the report gives the formaldehyde limits in a variety of countries:

Austria	Textiles that contain 1500ppm or above must be labelled
China	Textiles for infants and babies ≤ 20ppm Textiles in direct skin contact ≤ 75ppm Textiles not in direct skin contact ≤ 300ppm
Finland and Norway	Textiles for babies under 2 years: 30ppm Textiles in direct skin contact: 100ppm Textiles not in direct skin contact: 300ppm
France	For products intended to come in contact with human skin – Textiles for babies: 20ppm Textiles in direct skin contact: 100ppm Textiles not in direct skin contact: 400ppm
Germany	Textiles that normally come into contact with the skin and release more than 1500ppm formaldehyde must bear the label “Contains formaldehyde: Washing this garment is recommended prior to first time use in order to avoid irritation of the skin.”
Japan	Textiles for infants: not detectable (20ppm) Textiles in direct skin contact: 75ppm
Netherlands	Textiles in direct skin contact must be labelled “Wash before first use” if they contain more than 120ppm formaldehyde and the product must not contain more than 120ppm after wash.

[46]   The report states that, in the European Union, if testing suggests levels below 20ppm then a zero level of formaldehyde is assumed. A test result of less than or equal to 30ppm is considered by the European Union to be an acceptable lower limit."

[47]   The Authority acknowledges that the Ministry’s report was not available to Target before the broadcast; in fact, the Ministry’s investigation was conducted as a direct result of the Target programme complained about. However, the broadcaster could have obtained the information outlined above (about internationally accepted limits of formaldehyde) through its own research. Had it done so, it would have become obvious that comparing the results for total formaldehyde against a benchmark of 20ppm – which is an internationally accepted safe level of free formaldehyde in clothing – was not a valid or accurate comparison. In the Authority’s view, by making that comparison, the programme would have misled viewers.

[48]   Finally, the Authority considers that the presenter’s description of the potential health effects of formaldehyde would have unnecessarily alarmed viewers (guideline 5b). The presenter said:

To put it into perspective, those sensitive to formaldehyde experience crawling sensations at only two to three parts per million of free formaldehyde. Exposure to concentrations of 20 parts per million can cause detrimental effects on the human body – rashes, headaches, dizziness, joint pain, fatigue, asthma and cancer.

[49]   The Authority asked TVWorks to supply it with the information sources for the above statement, and the broadcaster said that it had relied on information from three sources: the United States Environmental Protection Agency (EPA), the Allergy Sensitivity and Environmental Health Association Qld Inc (ASED), and Lloyd Tataryn’s book Formaldehyde on Trial, from which it provided the quote outlined in paragraph [29] above. After a further request for specific material, TVWorks provided an information sheet from the MFL Occupational Health Centre and an article posted on www.associatedcontent.com.

[50]   The Authority notes that some of the information from these sources does support the contention that exposure to formaldehyde at concentrations of 20 parts per million can cause skin irritations and breathing difficulties. However, the broadcaster has not provided the Authority with any information or source which supports the Target presenter’s statement that exposure to formaldehyde at concentrations of 20ppm through clothing could cause cancer. The Authority considers that this was an extremely serious claim which required independent verification from a credible and reliable source. Despite specific requests to the broadcaster to supply the source of this information, it was unable to do so.

[51]   In these circumstances, the Authority finds that not only was the programme misleading, but also that it would have unnecessarily alarmed viewers by stating that the imported clothingcontained levels of formaldehyde as much as 900 times above an amount which the programme said could cause cancer. It concludes that the broadcast was in breach of Standard 5 and therefore it upholds the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of an item on Target on 21 August 2007 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[52]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[53]   Mr Gough submitted that the Authority should order TVWorks to “publicly apologise” for making unsubstantiated claims in the programme. He said that any statement should reassure the public that imported clothing from China met internationally safe standards.

[54]   TVWorks submitted that the publication of the decision would be sufficient. It argued that the broadcast had not caused any harm, stating that the “consumer public of New Zealand has overall benefited from the publication of the programme by way of increased awareness of the presence of formaldehyde in clothing and the imposition of a safety testing standard”. TVWorks said that to impose an order would be disproportionately punitive in the circumstances.

[55]   The broadcaster noted that the research had been conducted by a reputable testing facility. While that did not excuse the broadcast of an inaccuracy, it said, it was relevant to a consideration of penalty. TVWorks said that the distinction between total and free or bound formaldehyde was not brought to the producer’s attention until hours before the programme went to air. It contended that the basic premise for the programme was accurate and there were only “minor glitches in an overall success story”. With respect to the comment about low levels of formaldehyde causing cancer, TVWorks acknowledged that it was a mistake but said that it would be disproportionately harsh to punish one error, and it might “induce an unfortunate chilling effect on programming of this sort”.

[56]   The broadcaster recommended that the Authority should “be careful to avoid being captured by the benefit of hindsight” and ensure that any penalty did not have a disproportionate impact on freedom of speech. It argued that consumer information programming was in a category of speech that should have a high value placed upon it. If programmes like Target were to be discouraged from researching and bringing results to the public, TVWorks wrote, it would be inconsistent with the proper operation of the media in a free and democratic society.

Authority’s response to TVWorks’ submissions on orders

[57]   Before outlining its decision on orders, the Authority wishes to respond to several of the points raised by TVWorks in its submissions on orders.

[58]   First, the Authority notes TVWorks’ argument that, prior to the Target programme, there was no safety testing standard for formaldehyde in clothing in this country. The broadcaster submitted that the Authority should not place too much weight on the information made available by the Ministry of Consumer affairs after the programme was broadcast. The Authority observes, however, that all of the information in the Ministry’s report was available at the time of the broadcast – albeit not compiled in one report. The Authority stands by its assessment that a responsible broadcaster embarking on a consumer study of this topic was required to have an understanding of the international position on formaldehyde in clothing. This included knowledge of the internationally accepted testing method and accepted levels of formaldehyde. Having received the test results that it did, it was incumbent on the broadcaster to check that the results were valid. It failed to do so.

[59]   Second, the Authority disagrees with TVWorks that the programme was an “overall success story”. This statement indicates that the broadcaster has failed to appreciate the seriousness with which the Authority views the breach of broadcasting standards as outlined in this decision. This decision makes it clear that the programme was not an overall success; rather, the entire story was based on inaccurate and invalid information and testing methods. The results in the programme were not only meaningless, but statements in the item would have unnecessarily alarmed viewers.

[60]   While the broadcaster may regard the success of the programme as being the implementation of a safety standard for formaldehyde in clothing, the subsequent action by the Ministry of Consumer Affairs does not ameliorate the fact that TVWorks presented a misleading and alarming programme. The Authority agrees that consumer information programming is an important form of speech, but when that information is grossly inaccurate and in breach of broadcasting standards, it finds that upholding the complaint and imposing an order are reasonable limitations upon the broadcaster’s freedom of expression.

Authority’s Decision on Orders

[61]   The Authority orders TVWorks to broadcast a statement during the Target programme containing a comprehensive summary of this decision. The statement will serve two purposes: first, it will advise Target viewers that the broadcast was inaccurate and misleading and, second, it will require the broadcaster to acknowledge the errors in the same forum as they were originally published.

[62]   The Authority also considers that an order of costs to the Crown is justified on this occasion. In determining the quantum of that award it has had regard to similar decisions (see for example Decision No. 2006-021) where programmes have contained misinformation about consumer products or services. The Authority considers that the breach of the accuracy standard was significant, and that $4,000 is an appropriate award in all the circumstances.

Bill of Rights

[63]   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 its determination and in making the above orders. The  Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Orders

1. Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast within Target, on a date to be approved by the Authority
• contain a comprehensive summary of the Authority’s decision.

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 of the manner in which the above order has been complied with.

2. Pursuant to section 16(4) of the Act, the Authority orders TVWorks Ltd to pay to the Crown costs in the amount of $4,000, within one month of the date of this decision.

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

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
25 June 2008

Appendix

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

1.           Raymond Gough’s formal complaint – 5 September 2007
2.           Further letter from Mr Gough to TVWorks – 18 September 2007
3.           TVWorks’ decision on the formal complaint – 9 October 2007
4.           Mr Gough’s referral to the Authority – 20 October 2007
5.           TVWorks’ response to the Authority – 21 November 2007
6.           Mr Gough’s final submission – 28 November 2007
7.           TVWorks’ response to the Authority’s request for information – 14 March 2008
8.           Further submission from Mr Gough – 28 March 2008