James and Television New Zealand Ltd - 1998-123
- S R Maling (Chair)
- R McLeod
- L M Loates
- J Withers
- Richard James
ProgrammeOne Network News
BroadcasterTelevision New Zealand Ltd
A new dietary supplement, aimed at men with prostate problems, was the subject of an item on One Network News broadcast on 7 July 1998 between 6.00–7.00pm. The item included interviews with a representative of the company which markets the product, a urologist, and a man who believed his prostate cancer was under control because of the supplement.
Mr James complained to Television New Zealand Ltd, the broadcaster, that the promotion of the product amounted to an advertorial and was irresponsible as it did not alert viewers to its known toxic effects. Furthermore, he questioned the qualifications of the product’s promoter to make medicinal recommendations on a prime time news programme.
In its response, TVNZ denied that the item was an advertorial, pointing out that it was initiated by TVNZ because it was considered newsworthy. The item was careful not to endorse the manufacturer’s claims, it argued, and an appropriately cautious view was expressed by a urologist. Noting the large amount of scientific literature provided by Mr James, TVNZ responded that the manufacturer had made it clear that the claims made for the product were based on scientific data. It declined to uphold the complaint.
Dissatisfied with TVNZ’s response, Mr James 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 uphold the complaint.
The members of the Authority have viewed the item complained about and have read the correspondence (summarised in the Appendix). On this occasion, the Authority determines the complaint without a formal hearing.
A dietary supplement, which the manufacturer claimed offered hope to men with prostate cancer, was the subject of a news item on One Network News on 7 July 1998 broadcast between 6.00-7.00pm. A representative from the company which manufactured the product was interviewed, along with a urologist, who expressed some caution about the efficacy of the product on prostate problems. Eion Scarrow, a television gardening personality, extolled the drug as assisting in controlling his prostate cancer. Advice was given in the item on the cost of the supplement and where it could be obtained.
Mr James of Whangarei complained to TVNZ that it had breached broadcasting standards by presenting an advertorial as a news item. He suggested its inclusion was commercially motivated, and expressed his concern that the item failed to issue specific warnings about the toxic effects of isoflavones, which he said included cancer, brain atrophy and thyroid abnormalities at dietary levels. He contended that TVNZ had a duty to investigate the accuracy of, and the profit motive for, the claims which were being promoted. At the least, he argued, it should have disclosed the abundant risks revealed by impartial medical research. He pointed out that the chemicals in the product had been recognised as carcinogens for over 40 years. Mr James also objected to the item’s failure to note that the product’s promoter, who was identified as "Dr" was actually a veterinarian. As for the interview with the urologist, Mr James acknowledged that he was eminent in his field, but pointed out that he was neither a toxicologist nor an endocrinologist. There were, he argued, other better qualified experts in New Zealand whom TVNZ could have contacted. He objected to the fact that TVNZ permitted what he described as a vet and a gardener to make medicinal recommendations on a prime time news programme. In his view, it was irresponsible that the product was apparently endorsed without any warnings being given about its effects.
TVNZ advised that it had assessed the complaint under standards G14 and G15 of the Television Code of Broadcasting Practice. Those standards read:
G14 News must be presented accurately, objectively and impartially.
G15 The standards of integrity and reliability of news sources should be kept under constant review.
TVNZ strongly denied that the item was an advertorial, noting that such a description implied that it was a result of a commercial transaction. That had not occurred, TVNZ advised, and it had initiated the story itself because the information imparted was considered newsworthy. It noted that the item was careful not to endorse the manufacturer’s claims, and this was made clear in the introduction when it reported that the claim had brought both "relief and scepticism". The urologist, who TVNZ considered could rightly claim to be an expert on prostate cancer had, it noted, adopted what it described as "an appropriately cautious view", while Mr Scarrow, who was suffering from prostate cancer, expressed his view that the major benefit of the product was that it offered hope.
While TVNZ acknowledged the large quantity of scientific papers provided by Mr James, it suggested that an equal quantity could be found to provide a different or contrary view. It maintained that the product’s promoter made it clear the claims were based on scientific evidence.
In TVNZ’s view, its principal responsibility in dealing with the complaint was to see whether the item had made it clear that not all experts were convinced of the efficacy of the new product. It believed this was achieved by the introduction’s reference to scepticism, to the urologist’s cautious approach, and to Mr Scarrow’s reference to hope being the important factor.
TVNZ advised that it found no inaccuracy in the item, which it believed was presented in an objective and impartial manner. It therefore did not uphold a breach of standard G14. As far as standard G15 was concerned, it said it remained satisfied with the credentials of the three speakers and with the source information used in the story. It declined to uphold the complaint.
When Mr James referred the complaint to the Authority he identified some specific issues which he considered should have been addressed. He listed these as including the financial disclosure of the product’s promoter, his medical qualifications and whether the item was a commercial broadcast. He also considered that TVNZ had an obligation to investigate the accuracy of the claims being reported, and to disclose the abundant risks caused by isoflavones, which he said had been recognised as carcinogens for over 40 years.
When it responded, TVNZ said this was an area in which a large variety of scientific opinion existed, and argued that absolute accuracy could not be established. It believed that while some scientific opinion supported Mr James, other researchers took a contrary view and endorsed products using the plant extracts. Still others had an ambivalent view, it reported. TVNZ noted that the item reflected this by stressing that the claim for the new product was greeted with both relief and scepticism.
In his final comment, Mr James contended that the expression of scepticism did not suffice to inform the audience of the acknowledged risk of the supplement, especially considering that TVNZ had, in effect, promoted it by including in the item the price and advice on how to purchase the product.
The Authority’s Findings
For the Authority, this complaint raises a number of issues. The first question relates to Mr James’s assertion that the item was an advertorial because it promoted a product for the financial gain of the manufacturer and its promoter. The Authority accepts TVNZ’s assurance that the item was not an advertorial because no payment was sought, or received, for the item’s placement in the news programme. Indeed, TVNZ advises that it initiated the contact because it considered the matter newsworthy. Putting aside the matter of payment, in the Authority’s view there is still a question about whether the promotion of a dietary supplement in a news item could be perceived as an advertorial, especially when viewers were advised the price and told that the product could be purchased at pharmacies around the country. 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. It also notes TVNZ’s explanation for providing the price and source of the product which it said was to prevent its switchboard being jammed with inquiries.
Next, the Authority turns to the complaint that standard G14 was breached because the item was not accurate, objective or impartial. In particular, Mr James objected to the item’s failure to advise viewers of the serious risks involved in using the red clover supplement. He referred to the scientific literature which identified the hormonal compounds in clover as being implicated in birth defects, hormonal disturbance and a variety of cancers, including breast cancer, prostate cancer, thyroid cancer, adrenal cancer, endometrial cancer and clear cell carcinoma of the cervix. Mr James questioned whether medicinal advice dispensed by a gardener, and a veterinarian who owned the company and had a commercial interest in sales promotion, should be preferred to that of the chief reproductive endocrinologist of the USFDA and of totally independent Dutch and German research establishments whose research had proven there were serious side effects from using such red clover supplement.
TVNZ maintained that the item was presented objectively and impartially. It argued that it was not for TVNZ to make a judgment as to the product’s efficacy and safety.
The Authority acknowledges that the item was not unequivocal in its promotion of the product. The urologist made it clear that he wished to see the evidence before he would endorse the product and recommend it to his patients. Mr Scarrow, who believed the product had alleviated his prostate cancer, emphasised that its main benefit was that it offered hope. The product’s promoter highlighted the fact that prostate cancer was not a characteristic in Eastern countries where the diet was rich in vegetables containing isoflavones, and that the supplement was designed to remedy that deficiency in Western diets. It was acknowledged that clinical trials were still being carried out.
On balance, the Authority concludes that insofar as the item was simply a report about a new product which might be of interest to viewers, particularly to men suffering prostate problems, it did not breach standard G14. It does not consider it was necessary in that context to refer to the scientific literature which Mr James quoted. Further, the Authority notes, the claim that the product had a positive effect on some prostate problems was somewhat neutralised by the muted response of the urologist and by the item’s introduction which indicated that its arrival was being met with both scepticism and relief. Moreover, the Authority observes the literature provided by Mr James acknowledges that the research is ambivalent.
The Authority next deals with the complaint that standard G15 was breached. It notes that TVNZ advised that it was satisfied with the credentials of the three speakers, and with the source information used in the reporter’s commentary. Mr James expressed concern about the academic credentials of the product’s promoter, and the inclusion of the urologist, who was not an expert on dietary supplements. Despite Mr James’s concern, the Authority for its part is not persuaded that TVNZ acted on unreliable information sources, or sources which lacked integrity, in compiling the programme.
Finally the Authority deals with the question of the promoter’s academic qualifications. It notes that Mr James suggested he was a veterinarian, but did not provide evidence for his claim. The Authority does not believe the promoter’s qualifications – if indeed he is a veterinarian – compromised his credibility as an authority on a product which he markets. The role of the urologist, the Authority notes, was to comment on the efficacy of the supplement for prostate sufferers. He expressed an appropriately cautious view. The fact that he was not an expert on dietary supplements was not, in the Authority’s view, an impediment.
The Authority has experienced some difficulty in dealing with this complaint because it raises ethical issues about a broadcaster’s responsibility when it undertakes to advise viewers about new products. As noted earlier, a specific and tightly framed code exists for advertisements of therapeutic products. The Authority notes TVNZ’s argument that it considered the topic newsworthy because it offered hope to cancer sufferers. However, it responds, TVNZ had a duty to obtain a balanced and factual report. In the event, the Authority considers it achieved this because the item dealt only with the possible efficacy of the supplement on prostate problems.
For the reasons set forth above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
15 October 1998
Mr James’s Complaint to Television New Zealand Ltd – 7 July 1998
Richard James of Whangarei complained to Television New Zealand Ltd about a news item broadcast on 7 July 1998 between 6.00–7.00pm.
It was reported that a dietary supplement was offering hope to men with prostate cancer. A company representative of the product’s manufacturer was interviewed, along with a urologist and a man who believed his prostate cancer was now under control as a result of taking the product.
Mr James objected to the promotion of what he described as an "unproven commercially motivated advertorial" as news. He also objected to the presentation of the urologist as an expert on phytoestrogens, as it was not his field of expertise. He complained that the item failed to issue specific warnings of the toxic effects of isoflavins, which he said included cancer, brain atrophy and thyroid abnormalities at dietary levels.
Mr James also complained that the impression was left that Mr Kelly, the promoter, was a doctor of equal standing to the urologist. He said he believed Mr Kelly was a veterinarian.
Mr James provided a number of articles from medical and scientific journals which highlighted the risk factors associated with isoflavins and other estrogens.
When asked by TVNZ to confirm which standards he was complaining under, Mr James advised, in a letter dated 23 July, that standard G15 was apposite. He wrote:
I believe that the audience should be fully informed and that the element of equal treatment of risks and benefits should be emphasised, especially in an area where something very much in the realm of commercial "advertorials" or "infomercials" intrudes into news broadcasts. The Fair Trading Act requires such treatment in sales promotions.
Mr James noted that it was the second time this year that Mr Kelly’s pills had been promoted, with prices, on a news broadcast, the first time being an "anti hot flush" promotion for women.
In Mr James’s view, the question of Mr Kelly’s medical qualifications should be revealed. He wrote:
If he is a veterinarian, then you treated us to a vet and a gardener making medicinal recommendations on a prime time news programme.
Mr James referred TVNZ to the information which he had provided relating to the hormonal compounds in clover extracts and their possible harmful effects.
TVNZ’s Response to the Formal Complaint – 3 August 1998
TVNZ described the item as telling of the release of a new dietary supplement aimed at men with prostate problems. It noted that it included interviews with a representative from the manufacturer,"a cautious urologist" and Mr Eion Scarrow, a former presenter of gardening programmes on television, who believed that his prostate cancer was under control and saw the product as offering hope.
It advised that the complaint was considered under standards G14 and G15 of the Television Code of Broadcasting Practice.
At the outset, TVNZ denied that the item was an advertorial. It wrote:
Such a description implies that the item appeared as a result of a commercial transaction. The item was in fact initiated by TVNZ and was considered newsworthy in the same way that any product claiming to offer hope for cancer sufferers would be considered newsworthy.
TVNZ noted that the item was careful not to endorse the manufacturer’s claims, and pointed to the introduction, which said: "[The reporter] reports the claim has brought relief and scepticism."
TVNZ noted that Dr McIlroy, who it described as being able to claim to be an expert on prostate cancer, had adopted an appropriately cautious view, while cancer sufferer Eion Scarrow gave his view that the product offered hope.
TVNZ said that it had noted the large quantity of scientific papers provided by Mr James, but suggested that in almost any area of research, an equal quantity could be found providing a different view. It pointed out that the manufacturer’s representative made it clear that the claims for the product were based on scientific data.
TVNZ considered that its responsibility was to ascertain whether the item had made it clear that not all experts were convinced of the efficacy of the product. This was achieved, it believed, through the use of the word "scepticism", by Dr McIlroy’s cautious approach, and by Mr Scarrow’s reference to "hope".
As far as standard G14 was concerned, TVNZ said it found no inaccuracy in the item, which it believed was presented in an objective and impartial manner. It did not see that Mr Kelly’s inclusion should be seen as lacking objectivity or impartiality.
As for standard G15, TVNZ said it was satisfied with the credentials of the three speakers and with the information used in the reporter’s commentary. It declined to uphold the complaint.
Mr James’s Referral to the Broadcasting Standards Authority – 5 August 1998
Dissatisfied with TVNZ’s response, Mr James referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
Mr James maintained that TVNZ had a responsibility to give equal and accurate treatment to the variety of views relating to a subject of this delicacy. In his opinion, it had failed.
In his view, there were a number of general and specific issues to be addressed, including financial disclosure, he said, since Dr Kelly had a considerable personal financial interest in promoting his products. He also considered Dr Kelly’s lack of medical qualifications should have been disclosed.
Mr James also questioned the use of a non-commercial broadcast to make a commercial promotion. He noted that the item was designed specifically for a New Zealand audience, and included information on how to purchase the product.
Mr James listed some general philosophical objections to the item:
- As a news broadcaster, TVNZ had a responsibility to investigate the accuracy of and the profit motive reasons for, the claims being reported.
- It then had a duty to report them.
- At the least it should have disclosed the abundant risks revealed by impartial medical research. These chemicals had been recognised as carcinogens for over 40 years, he wrote. Not to have exercised this due diligence could involve TVNZ in legal liability to those who requested information from it on where to buy the product.
- An easy way to avoid the flood of requests for information on the product would have been to tell the truth.
- Since the British Medical Research Council had found there was no proof that claims such as those of Dr Kelly were proven, the propriety of presenting this material as news was very dubious indeed.
With respect to Dr McIlroy’s appearance, Mr James noted that he was an eminent and senior urologist, and highly skilled in his field. He noted that he was not a toxicologist or an endocrinologist.
He referred to an article by Dr D M Sheehan, a reproductive and genetic toxicologist and a very senior US Federal Government official. His views should take precedence, Mr James argued.
Finally, Mr James noted that there were other more qualified experts in this field in New Zealand whom TVNZ could have contacted.
Mr James enclosed copies of a variety of scientific articles relating to the subject. He also provided an undated extract from a letter by TVNZ concerning another complaint in which it explained its reason for including the price and purchasing details of a product. TVNZ had advised on that occasion that it was in order to avoid "an immediate flood of calls to our switchboard asking for just such information. It was simply an attempt to stem that tide."
TVNZ’s Response to the Authority – 13 August 1998
TVNZ commented on Mr James’s statement that it had a responsibility to investigate the accuracy of the claims being reported. It wrote:
While we recognise that Mr James is undertaking something of a campaign on matters relating to soy and red clover extracts and we respect his diligence in doing so, we note that this area is one where a large variety of scientific opinion exists. Accuracy (in the sense of certainty) cannot be established. Some scientific opinion supports Mr James (and he has taken to forwarding large quantities of this material to a number of people in TVNZ); others take a contrary view and endorse products using these extracts. Still others have an ambivalent view.
In TVNZ’s view, the item recognised that by stressing that the claim for the new product was greeted with both relief and scepticism.
Mr James in his initial letter described the item as an advertorial. Such comment demeans the very genuine concerns of a large number of men coping with prostate problems. They are quite as entitled to know of a product potentially offering help as is the Aids sufferer who learns from television about a possible inhibitor.
Mr James’s Final Comment – 20 August 1998
Mr James referred to TVNZ’s claim in its letter of 13 August when it made the point that opinions differed. He agreed, but noted that TVNZ had resisted all requests for substantiation of the opinion it broadcast, which ignored the huge volume of evidence to the contrary. He continued:
And the expression of scepticism goes nowhere near far enough to inform the audience of the acknowledged risk, especially when, in anticipation of "floods of calls" they give a price and instructions on how to purchase the product.
As a postscript Mr James noted that TVNZ conceded that some scientific opinions supported him, and some were ambivalent and they made claims in support of the product. In his view, its presentation allowed for only two of the three options, and ignored discussion of the actual health dangers.
Mr James forwarded copies of letters which supported his contention that soy phytoestrogens were a health risk.
TVNZ responded when sent copies of this correspondence in a letter dated 26 August 1998. It said it considered the material sent by Mr James to be of little relevance to the complaint. It said it held to the view that the position Mr James took on phytoestrogens and soy products was not one which was universally accepted by the scientific and medical community. TVNZ suggested one need go no further than the latest scientific yearbook from Encyclopedia Britannica to demonstrate that.
On 2 September Mr James responded in a letter to TVNZ, copied to the Authority, that he would prefer 1996 research published by the National Centre for Toxicological Research of the US Department of Health and Human Services, Food and Drug Administration to be authoritative. He advised that research explained how isoflavins had been responsible for the long reported history of thyroid abnormalities and how they caused cancer. He noted that isoflavins were exactly the chemicals being promoted on TVNZ’s news as health foods. He provided a copy of the research report to TVNZ.