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Investigation report no. BI-309Summary

Licensee General Television Corporation Proprietary Limited

Station Nine

Type of service Commercial—television

Name of program A Current Affair

Date of broadcast 15 February 2017

Relevant code Commercial Television Industry Code of Practice 2015

Date finalised 31 May 2017

Decision No breach of clause 3.3.1 [accuracy and misrepresentation of viewpoints]

BackgroundIn April 2017, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) into a segment of A Current Affair (ACA).

The segment was broadcast on Nine by General Television Corporation Proprietary Limited (the licensee) on 15 February 2017.

The ACMA received a complaint alleging the segment contained inaccuracies and misrepresented viewpoints in a report about the benefits for children with attention deficit hyperactivity disorder (ADHD) symptoms of an over-the-counter anti-inflammatory supplement.

It is in the public interest to ensure that health-related information and advice is accurate, given the implications for people who may rely upon such information to make decisions about the treatment and ongoing management of health problems.

The ACMA has investigated the licensee’s compliance with clause 3.3.1 of the Commercial Television Industry Code of Practice 2015 (the Code).

The complainant also alleged that the segment lacked impartiality. As the impartiality provision in the Code only applies to news programs and does not apply to current affairs programs such as ACA, the ACMA has not pursued this aspect of the complaint.

The programACA is a 30-minute current affairs program broadcast on weekdays at 7.00 pm on the Nine Network.

The program of 15 February 2017 included a segment, approximately five minutes in duration, which opened with the following statement by the host:

Welcome back. Now the surprising medical discovery that has the potential to change the lives of ADHD sufferers. Australian researchers have uncovered the hidden possibilities of a simple over-the-counter anti-inflammatory. Early results look promising.

This introduction was accompanied by a graphic with the text ‘ADHD BREAKTHROUGH’.

The segment reported on the findings of a study into the possible health benefits of an anti-inflammatory product, Lyprinol1, in the treatment of ADHD in children. The segment included an interview with Professor Con Stough, the lead researcher involved in the study, as well as children who had taken Lyprinol, and parents of those children. It also included an interview with Dr Ross Walker, who was identified as being a general practitioner.

A transcript of the segment is at Attachment A.

Assessment and submissionsWhen assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, images and any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.1 Lyprinol contains an extract from the New Zealand green-lipped mussel – also referred to as PCSO-524.

ACMA Investigation report—A Current Affair broadcast on Nine on 15 February 2017 2 of 50

Australian courts have considered an ‘ordinary reasonable’ viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.2

Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Code.

This investigation has taken into account the complaints (at Attachment B) and submissions from the broadcaster (at Attachment C). Other sources are identified in this report where relevant.

Relevant Code provision3.3 Accuracy and fairness

3.3.1 In broadcasting a news or Current Affairs Program, a Licensee must present factual material accurately and ensure viewpoints included in the Program are not misrepresented.

3.3.2 Clause 3.3.1 applies to material facts and material misrepresentations of viewpoints only.

An interpretation clause is also applied:

3.1.2 Compliance with this Section 3 must be assessed talking into account all of the circumstances at the time of preparing and broadcasting the material, including:

a) the facts known, or reasonably ascertainable, at that time;

b) the context of the segment (or Program Promotion) in its entirety; and

c) the time pressures associated with the preparation and broadcast of such programming.

FindingThe licensee did not breach clause 3.3.1 of the Code.

ReasonsTo assess compliance the ACMA has addressed the following questions:

What did the material convey to the ordinary reasonable viewer?

Was the material factual in character?

If so, did it convey a material fact or facts in the context of the relevant report?

If so, was the factual material accurate?

The considerations the ACMA uses in assessing whether or not broadcast material was factual in character are set out at Attachment D.

2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.


1. Present factual material accurately

The complainant submitted:

The thrust of the story, “ADHD Breakthrough” is in stark contrast to the null results of the underlying major study hypothesis […]. In addition, the positive “results” highlighted in the program “34% improvement in bad behaviour at home, a 13% improvement in attention and a 10% improvement in hyperactivity” were not reported as such in the paper and could only be derived from data-dredging a sub-set of participants by post-hoc analysis.

Furthermore, […] the uniformly positive testimonials (not in accord with the published results), […] was certainly not an objective report of a scientific study.

[…]

I also allege this program breached s.3.3 of the ACMA Commercial Television Code of Practice for News and Current Affairs. It targeted a vulnerable population, parents whose children have been labelled as suffering from ADHD. It encouraged them to purchase a medicine that accurate reporting would have pointed out works no better than a placebo.

The licensee submitted:

The statistics in the Segment were obtained from a media release associated with the Study (the Media Release) […]. The information provided in the Segment was also based on, and is an accurate reflection of the information provided in the Media Release.

[…]

In connection with the investigation of the Segment, Nine has sought further information as to how the Media Release was prepared, and the basis for the statistics set out in the Media Release. We are advised that the Media Release was approved by Professor Stough, and prepared with the assistance and input of James Kean, one of the authors of the Report involved in the Study from the Centre for Human Psychopharmacology, Swinburne University. The particular statistics highlighted in the Segment were provided by Mr Kean for the purposes of the Media Release and were derived from the Study by assessing clinical and subclinical ADHD children with high levels of hyperactivity or inattention and looked at the percentage of improvement for the PCSO-524® group, minus the percentage of improvement seen in the placebo group.

Nine submits that it is entitled to rely on additional summary and research materials provided they are from a reputable source. The Media Release was issued by Bite Communications on behalf of Pharmalink International Limited. Pharmalink International Limited funded the Study and it was reasonable for Nine to rely on the information set out in the Media Release - particularly given the involvement of Mr Kean and Professor Stough. In addition, given the complexity of the Study, it is reasonable for Nine to have relied on statements made by the experts conducting the Study - whether via interview or published statement.

[…]

Nine considers that the interviews broadcast in the Segment accurately and truthfully reflected comments obtained from the interviewees. To the extent each of the people interviewed in the Segment made claims or expressed opinions about the efficacy of Lyprinol, they were reported as such, and were fairly represented in the Report.

What did the material convey to the ordinary reasonable viewer?

The focus of the segment was on the results of the study. The host introduced the segment by referring to a discovery that has the ‘potential’ to change the lives of ADHD sufferers by uncovering hidden ‘possibilities’, and stating that ‘early results look promising’. The video title ‘ADHD breakthrough’ was prominently displayed behind the host while these comments were


made. The term ‘breakthrough’ was also used early in the segment by the reporter and was again displayed in text at the end of the segment.

The segment included a statement from Professor Con Stough that the results of a study ‘are pretty clear and really promising’. Professor Stough also explained how the study was conducted:

We randomised 144 children with high hyperactivity or inattention and these are behaviours that would be causing them a lot of trouble in school. And we randomised them in two groups, one which they took Lyprinol for 14 weeks, or the other group was a placebo for 10 weeks.

Immediately after this explanation of the research method, the reporter stated:

They found a 34% improvement in bad behaviour at home, a 13% improvement in attention and a 10% improvement in hyperactivity.

As the reporter made these statements, a graphic displayed the figures quoted, with a green arrow pointing up for emphasis.

The segment included interviews with children who made positive comments about the supplement, such as:

‘I could socialise better, I could exercise better, I could just think so much clearer.’

‘The medication has been a big difference. Lyprinol is just a one percenter. It’s that little thing that makes a difference, it’s helped me cross the finish line a little bit better and it’s brought me to where I am just a little bit faster.’

‘I felt like I had a lot more clarity, a lot more focus at school. I never understood that I was different to a lot of the other kids until I started taking medication.’

The segment also included interviews with the children’s parents, who also made comments in favour of the supplement, such as:

‘I was just so surprised that something which is so readily available worked as well as it did without any negative effects.’

‘Certainly I was very comfortable adding Lyprinol to our regime of treatment for Sam. I was looking at the survey results from the study and I was really pleased to see that it was so effective for children that were on no other medications.’

‘It wasn’t immediate and it was actually very gradual and it was very mild, but it did make a difference to his levels of concentration, his ability to listen and his ability to communicate more effectively.’

The ACMA considers that the ordinary reasonable viewer would have understood from the segment in its entirety that:

the study of children with ADHD was conducted by dividing the children into two groups: one group that took Lyprinol; and the other a placebo

the children who took Lyprinol as part of the study demonstrated improvements of 34% in bad behaviour at home, 13% in attention and 10% in hyperactivity

children and their parents who were interviewed for the program reported improvements in concentration, mood and performance as a result of taking Lyprinol.


Was the material factual in character?

The complaint questions the accuracy of the following assertions made in the segment:

‘They (ie the researchers) found improvements of 34% in bad behaviour at home, 13% in attention and 10% in hyperactivity.’

‘Researchers say they’ve made a breakthrough.’

The results from the study are a ‘breakthrough’.

The complainant was also concerned that the uniformly positive testimonials about Lyprinol were not in accordance with the published results of the study.

The first assertion, about the levels of improvement found by the researchers, was factual in character as it was specific, unequivocal and capable of independent verification.

The second assertion, about the reporter’s statement concerning claims made by the researchers, was also factual in character as it was specific, unequivocal and capable of independent verification. The word ‘breakthrough’ is defined in the Macquarie Dictionary as ‘any development, as in science, technology, or diplomacy, which removes barriers to progress’.3 The ACMA considers that, in this context, the statement by the reporter that ‘researchers say they’ve made a breakthrough’ was not a factual assertion that the researchers in this study used the word ‘breakthrough’ to describe the findings. Rather, the ACMA considers that it was an assertion that researchers were claiming the study’s findings were a significant development. In this respect, it was a factual statement.

The third assertion, that the findings of the study were a ‘breakthrough’, was not, in the ACMA’s opinion, a statement of fact. In the ACMA’s view, the word is imprecise and carries a subjective value judgement. Whether or not a development is significant enough to warrant the term ‘breakthrough’ is a matter of opinion. In this context, the ACMA does not believe that the Code applies to this instance of the use of this descriptor in the segment.

The ‘uniformly positive’ testimonials were not factual in character. The ordinary reasonable viewer would have understood from the language used by the interviewees, such as ‘I could socialise better’, ‘It’s helped me across the finish line a little better’, ‘I was very comfortable adding Lyprinol to our regime’, ‘I’d say give anything a go’, referred to their personal experiences and viewpoints. As they were the opinions of the interviewees, they cannot be considered as factual assertions for the purposes of the Code.

If so, did it convey a material fact or facts in the context of the relevant report?

The context of the segment was a report that presented research findings that indicated that taking Lyprinol resulted in significant improvement in bad behaviour, attention and hyperactivity in children exhibiting ADHD symptoms.

Within this context, both the assertions that the study found specific percentage improvements in bad behaviour, attention and hyperactivity, and that researchers claimed they had made a breakthrough, or a significant development, were material facts.

Was the factual material accurate?

1. The statement that ‘they found improvements of 34% in bad behaviour at home, 13% in attention and 10% in hyperactivity’.

3 Macquarie Dictionary, Online Edition [accessed 26 May 2017].


The complainant alleged that findings of the study were inaccurately presented in the segment, as the primary analysis of the study found that Lyprinol worked no better than a placebo.

The ACMA notes that the published results of the study listed the following:

Results The results of the present study did not support the hypothesis that PCSO-524®4 improves parental reports of hyperactivity, inattention and impulsivity in children ages 6 to 14 years over placebo. Repeated measures ANOVA on post hoc subsample analysis indicated significant improvements in hyperactivity (p = 0.04), attention (p = 0.02), learning (p = 0.05) and probability of ADHD (p = 0.04) with a medium to large average effect size (d = 0.65) in those children who did not meet criteria for combined hyperactivity and inattention. Furthermore, significant improvements in the PCSO-524(4) group were indicated in a whole sample repeated measures ANCOVA on recognition memory between baseline and week 8 over placebo (p = 0.02, d = 0.56); this difference was not sustained at week 14.

Conclusions The results presented indicate that PCSO-524® may be beneficial in reducing levels of hyperactivity and in-attention in a population of children with clinical and subclinical symptoms of ADHD.5

The media release about the study (the media release) stated:

The results, published in the February 2017 issue in the prestigious journal Psychopharmacology, show significant improvements in the behaviour of children with high levels of hyperactivity or inattention.

Analysis of the data revealed that, compared to the placebo groups, the children taking 3-4 capsules of Lyprinol® every day for 14 weeks showed:

- 34% improvement in parental reports of bad behaviour at home,- 13% improvement in attention,- 10% improvement in symptoms of hyperactivity,- 5% improvement in symptoms relating to learning problems and- a reduction in the likelihood of meeting the criteria for ADHD (symptoms improved by

20%), compared to the placebo group.[…]

“In reviewing data from the study, we found the biggest improvements in children with less severe ADHD and those with behavioural issues significant enough to impact their lives on a daily basis, but not severe enough to be diagnosed with ADHD.” 6

Copies of the published results and the media release are included in the licensee’s submissions in Attachment C.

Professor Stough, the lead researcher in the study, was quoted extensively in the media release and was identified as being the source of the above quote.

The percentage figures included in the news release were not contained in the published results of the study. However, the licensee has submitted that the media release was approved by Professor Stough and prepared with the input of Dr Kean. Accordingly, the

4 Marketed under the brand name of Lyprinol.5 ‘Reduced inattention and hyperactivity and improved cognition after marine oil extract (PCSO-524®)

supplementation in children and adolescents with clinical and subclinical symptoms of attention-deficit hyperactivity disorder (ADHD): randomised, double-blind, placebo-controlled trial’, Psychopharmacology (2017) 234: 403

6 Media Release 15 February 2017: ‘New Australian research: Green lipped mussel oil supplement shown to reduce behavioural problems in children’, issued by Bite Communications on half of Pharmalink International Limited.


ACMA considers that the quoted figures constitute findings made by the research team, and were based on analysis of the study’s data.

To this extent, the ACMA considers that the assertion in the segment that ‘‘[t]hey (i.e. the researchers) found improvements of 34% in bad behaviour at home, 13% in attention and 10% in hyperactivity’ was accurate.

In making this finding, the ACMA has not considered whether or not those findings by the researchers, or their methods, were scientifically supportable, as its key enquiry is whether or not the licensee complied with the Code.

The ACMA notes the results of the study which the media release reported on contain a degree of complexity that was not fully reflected in the media release. Based on the information in the published study, the improvements in bad behaviour, attention and hyperactivity were not found across the entire group that took Lyprinol, as suggested in the segment. Rather, this was found in a sub-group of participants that exhibited less severe, ‘non-combined type’ ADHD symptoms (high inattention, high hyperactivity or no subtype).7 This distinction was not made clear in the media release or the segment.

The ACMA considers that, given the provenance of the media release, it was not unreasonable for the licensee to rely on the information it contained. However, the ACMA notes the inherent risks in relying on promotional summaries of complex scientific studies without sufficient regard for the more detailed information provided in the original study. While understanding that time pressures of preparing material for broadcast do exist, licensees nevertheless have an obligation to apply levels of rigour proportionate to the complexity of the original information being reported on – particularly when that material is also available. However, for the reasons set out above, the factual assertion was accurate.

2. The statement that ‘researchers say they’ve made a breakthrough’

With regard to the factual assertion by the reporter that ‘researchers say they’re made a breakthrough’, the ACMA notes that the media release referred to the study as ‘a ground breaking Australian study’. In this context, the ACMA considers that the word ‘breakthrough’ was a reasonably employed synonym of ‘ground breaking’, and that it was an accurate representation of what the researchers claimed in the media release, even though the researchers did not themselves use the word ‘breakthrough’.

Other matters related to accuracy in the segment

The complainant was also concerned that the segment did not accurately report the limitations of the study.

The media release made clear that the researchers found that ‘the biggest improvements of taking Lyprinol were in those children with less severe ADHD and in those whose symptoms were not severe enough to the diagnosed with ADHD’.

The statements from two of the parents interviewed in the segment:

‘I was looking at the survey results from the study and I was really pleased to see that it was so effective for children that were on no other medications’

‘If it’s a natural product and you don’t have to go to the prescription drug and it works for you then absolutely 100% do it’

7 Psychopharmacology (2017) 234:408.


may also have suggested to some viewers that Lyprinol most benefitted children with less severe symptoms (i.e. not on other medication).

However, the ACMA considers that this would not have been apparent to the ordinary reasonable viewer watching the segment.

The ACMA considers that, in the absence of a clear statement to that effect, some parents of children more severely affected by ADHD may have been misled about the potential benefits of giving Lyprinol to their children.

However, the ACMA considers that there was sufficient information in the segment to indicate to viewers that Lyprinol was not being presented as a cure or as a single treatment for ADHD. In particular, the ACMA notes:

the careful framing of the segment by the host at its commencement, in which she introduced the segment by referring to the discovery that has the ‘potential’ to change the lives of ADHD sufferers by uncovering hidden ‘possibilities’ and that ‘early results look promising’

the inclusion of comments from the reporter and children taking Lyprinol and their parents that signal that the level of improvement from taking Lyprinol was sometimes modest, such as:

o ‘The medication has been the big difference. Lyprinol is just the one percenter’

o ‘Sam’s mum Jackie says the treatment, taken alongside Sam’s other medication was effective’

o ‘It wasn’t immediate and it was actually very gradual and it was very mild […]’

the host’s comments at the conclusion of the segment in which she advised viewers to consult their doctor if they are thinking about changing their child’s medication.

In light of this information, the ACMA considers that, despite the omission of a clear statement about which children experienced the biggest benefits from taking Lyprinol, the omission did not render the segment inaccurate in the context of the segment in its entirety.

Accordingly, the ACMA finds that the licensee presented factual material accurately in the segment.

2. Ensure viewpoints are not misrepresented

The complainant stated:

[…] Prof Stough has said, “I was interviewed for about 30 minutes where I described in detail the methodology and limitations of the study.... However, ACA only used two sentences... They used footage that I've never seen before... We certainly didn't get the chance to review the show before it was aired... we never claimed it was break through when I was interviewed, I stressed it should be replicated and that the effects were mostly seen in sub ADHD symptom participants”.

The licensee submitted:

In Nine's submission, Professor Stough's statements as reproduced in the Segment accurately represent his viewpoints as provided to Nine. Whilst he did not use the word "breakthrough", the


nature of his comments (as set out above) were consistent with the Study as providing new and exciting information regarding the potential use of Lyprinol.

Nine does not in any event believe that it is inaccurate to suggest that the Study was a breakthrough. The Study was the first of its kind. Nine is not aware of any other study into the efficacy of Lyprinol in the treatment of symptoms of ADHD. The characterisation of the Study as a breakthrough is also consistent with the opening statement of the Media Release, which refers to "a ground breaking Australian study" and as noted above, was approved by Professor Stough.

[…]

Nine is not under an obligation to reproduce each and every viewpoint expressed by Professor Stough. Any news or current affairs segment must necessarily be a summary of the available information, and the omission of certain opinions does not equate to a breach of the Code. Instead, the relevant Code obligation is directed at ensuring that what is expressed as a viewpoint is not misrepresented.

The Segment did not refer to a need for the Study being replicated, however, Nine would suggest that an ordinary reasonable viewer would understand that the Study being the first of its kind, would require further similar studies in order to verify its findings. As already noted, at no stage in the Segment was it suggested that the Study was settled medical science. Instead, its results were clearly expressed as early results showing promise.

In assessing compliance with the Code, the ACMA considers the complaint against the material broadcast in the segment and the representation of viewpoints (e.g. opinions or perspectives) during the segment.

In determining whether or not a licensee materially misrepresented a viewpoint, the ACMA takes into account that the Code does not require a licensee to obtain all salient viewpoints, nor is it required to present all material it obtains (having regard to the circumstances at the time of preparing and broadcasting the program). The ACMA accepts that extended duration material will be edited in order to fit into limited broadcast time.

The overriding requirement of the Code is that, where a viewpoint is included, it must be not misrepresented. A program may omit material and its makers may choose not to obtain viewpoints, but in so doing must not misrepresent a viewpoint.

Viewpoint represented during the program

The relevant material occurred when the reporter stated ‘[i]t’s been more than six years in the making, and finally researchers say they’ve made a breakthrough’. The segment then cut to Professor Stough, who stated:

The results are pretty clear and really promising.

This statement was followed by images of boxes of Lyprinol, with the reporter stating, ‘[a] natural treatment for ADHD that costs less than $20.00 a week. It sounds too good to be true, but not any more’.

Was the viewpoint misrepresented?


The impression conveyed to the ordinary reasonable viewer of the segment in its entirety is separate to the issue of Professor Stough’s viewpoint and whether or not his viewpoint was misrepresented.

The ACMA accepts the complainant’s submission that Professor Stough did not use the word ‘breakthrough’. Rather, in the interview he conducted with ACA he said that the results are ‘pretty clear and really promising’. The ACMA considers that the word ‘promising’ used by Professor Stough in this context suggested that his viewpoint is that the study’s findings merit further consideration.

As noted above in the discussion of accuracy, the media release referred to the study as ‘a ground breaking Australian study’ and, in this context, the ACMA considers that the word ‘breakthrough’ was a reasonably employed synonym of ‘ground breaking’. In this respect, the ACMA considers that the segment did not misrepresent Professor Stough’s viewpoint about the significance of the findings, although Professor Stough did not use the word ‘breakthrough’ himself.

The complainant has submitted that additional viewpoints from Professor Stough should have been included in the segment to clarify the information broadcast in the segment about the nature of the study and the researchers’ findings.

As noted by the licensee, there is no obligation to broadcast the entirety of a person’s viewpoint. Rather, the obligation under the Code is that the licensee must ensure that any viewpoints it broadcasts are not misrepresented.

To the extent that Professor Stough’s viewpoints were broadcast in the program, there is no evidence to suggest that the viewpoints that he expressed in the segment were misrepresented.

Accordingly, the licensee did not breach clause 3.3.1 of the Code.


Attachment ADescription of report on A Current Affair, broadcast on Nine on 15 February 2017

Video Audio

Studio host; footage of a man adjusting medical headgear being worn by a child; a man looking at a screen; close-up of a child wearing medical goggles; four capsules.

HOST: Welcome back. Now the surprising medical discovery that has the potential to change the lives of ADHD sufferers. Australian researchers have uncovered the hidden possibilities of a simple over-the-counter anti-inflammatory. Early results look promising.

Video Title: ADHD BREAKTHROUGH

Footage of green lipped mussels.

Close-up of Child 1. Child 1: I could socialise better, I could exercise better, I could just think so much clearer.

Close-up of Child 2. Child 2: My school work has improved since I’ve been taking it.

Close up of Parent 1 which fades to a hand holding capsules before fading back to Parent 1.

Parent 1: I was just so surprised that something which is so readily available worked as well as it did without any negative effects.

A hand holding capsules; cut to a sign that says ‘Through to clinical trials’; a mid-shot of a child wearing goggles; a man sitting in front of two computers.

REPORTER: It’s been more than six years in the making, and finally researchers say they’ve made a breakthrough.

Professor Stough direct to camera.

Prof Stough: The results are pretty clear and really promising.

Close up of four boxes of Lyprinol; a hand taking a box of Lyprinol off a shelf; a hand holding capsules.

REPORTER: A natural treatment for ADHD that costs less than $20.00 a week. It sounds too good to be true, but not anymore.

Footage of a man steering a power boat.

REPORTER: In the clean clear waters across the ditch lays the New Zealand green-lipped mussel.

Close-up of a person holding an opened green-lipped mussel; Mid-shot of John Croft.

John Croft: It’s a treatment that can help a percentage of people get significant relief.

People on a fishing boat; John REPORTER: It was here that A Current Affair met John Croft, a


Croft standing on the side of a boat; a close-up of a hand holding two green-lipped mussels; footage of green-lipped mussels being taken from the water, held and processed; Mid shot of John Croft.

researcher who has devoted most of his life to studying the crustacean. The mussel contains powerful omega three fatty acids which have anti-inflammatory and joint protecting properties.

Mid-shot of John Croft. John Croft: It actually delays the degenerative processes that take place in our joints naturally with age.

Close-up of a box of Lyprinol being opened and a blister pack of capsules taken out; a hand moving a blister pack of Lyprinol capsules to reveal a hand holding four capsules; blurred images of children playing; close-up of Child 1.

REPORTER: For some time, Melbourne researchers believed this supplement, marketed in Australia as Lyprinol could also help children suffering from ADHD. Now the results are in, and it seems they were right.

Close-up of Child 1. Child 1: The medication has been a big difference. Lyprinol is just a one percenter. It’s that little thing that makes a difference, it’s helped me cross the finish line a little bit better and it’s brought me to where I am just a little bit faster.

Photo of Child 1 aged 14. Reporter: At 14 years old, [Child 1] participated in the very first Lyprinol trial.

Photos of Child 1 as a child; close-up of Parent 2.

Parent 2: [Child 1] was a very challenging child at five, particularly before his ADHD was diagnosed. So he was very hyperactive, very impulsive, spoke incessantly and would – was just all over the place.

Mid shot of Child 1 and Parent 2; photograph of Child 1 as a child.

REPORTER: He’s now 19 and says the natural treatment made a huge difference.

Photograph of Child 1 as a child; Close-up of Child 1.

Child 1: I felt like I had a lot more clarity, a lot more focus at school. I never understood that I was different to a lot of the other kids until I started taking medication.

Close-up of Parent 2; close-up of Child 1; Mid shot of Child 1 and Parent 2 and Reporter.

REPORTER: [Child 1’s] mum [Parent 2] says the treatment, taken alongside [Child 1’s] other medication was effective.

Photographs of Child 1 as a child; close-up of Parent 2.

Parent 2: Certainly I was very comfortable adding Lyprinol to our regime of treatment for [Child 1]. I was looking at the survey results from the study and I was really pleased to see that it was so effective


for children that were on no other medications.

Long shot of professor Con Stough walking; Prof Stough in an office talking to another person.

REPORTER: Professor Con Stough led the research at Melbourne’s Swinburne University.

Footage of Prof Stough in a laboratory with people undergoing tests; Prof Stough talking to camera; images of computer and television monitors.

Professor Stough: We randomised 144 children with high hyperactivity or inattention and these are behaviours that would be causing them a lot of trouble in school. And we randomised them in two groups, one which they took Lyprinol for 14 weeks, or the other group was a placebo for 10 weeks.

Reporter: They found a 34% improvement in bad behaviour at home, a 13% improvement in attention and a 10% improvement in hyperactivity.

Video Title: ‘Bad behaviour at home 34% improvement’ with a graphic of a green arrow facing upward.

‘Attention 13% improvement’ with a graphic of an arrow pointed upwards

10% improvement, with the word ‘Hyperactivity’ and a green arrow pointed upwards overlaid on the screen.

Close-up of Parent 1. Parent 1: I’d say give anything a go. If it’s a natural product and you don’t have to go to the prescription drug and it works for you then absolutely 100% do it.

Close-up of Child 2; Child 2 and a girl playing cards; close-up of Parent 1.

Reporter: [Parent 1’s] child, [Child 2] is also on Lyprinol.

Close up Parent 1 facing the camera; medium close-up of Child 2 sitting in front of a computer; a close-up of Child 2’s face; medium close-up of Child 2 sitting in front of a computer.

Parent 1: It wasn’t immediate and it was actually very gradual and it was very mild, but it really did make a difference to his levels of concentration, his ability to listen and his ability to communicate more effectively.

Close-up of Child 2. Child 2: Yeah, I feel a lot better taking it, um at school. I feel like I can concentrate a bit better.

Close-up of Lyprinol box, graphic showing three capsules dropping from top of screen to rest beside the box and followed by a graphic stating ‘Under $20 per week’.

Reporter: The study gave children between three and four capsules each day. In an added bonus, the treatments costs families less than $20 a week.


Close-up of Dr Ross Walker. Dr Ross Walker: It’s not that expensive and it has been proven to be effective.

Medium long shot of Dr Walker sitting in an office with a woman sitting across from him; pan to a close-up of Dr Walker.

Reporter: G.P. Dr Ross Walker.

Dr Ross Walker: The parents are reporting over a 30% improvement in behaviour. There’s a significant improvement in attention by the children. In hyperactivity, which is another component of ADHD there is some improvement there and then in learning.

Close-up of Parent 1’s face, addressing camera; close-up of Jack’s face which pans to a close-up of Parent 1’s face.

Parent 1: If it suits your family and your situation then 100% give it a go.

Medium shot of Parent 2 and Child 1 siting on chairs on a balcony; close-up of Parent 2.

Parent 2: It’s everything from behaviour management through to the right medication to the right routine at home and if you can get all those things working together in harmony it works really well.

Studio host. Host: Now if you are thinking about changing your child’s medication, always consult your doctor first.

Video Title: ADHD BREAKTHROUGH


Attachment BComplaint

Complaint to the licensee dated 1 March 2017:

I allege this program breached s.3.3 and 3.4 of the ACMA Commercial Television Code of Practice for News and Current Affairs. […]

The thrust of the story, “ADHD Breakthrough” is in stark contrast to the null results of the underlying major study hypothesis. In addition, the positive “results” highlighted in the program “34% improvement in bad behaviour at home, a 13% improvement in attention and a 10% improvement in hyperactivity” were not reported as such in the paper and could only be derived from data-dredging a sub-set of participants by post-hoc analysis.

Furthermore, the numerous images of Blackmores’ Lyprinol packs, the uniformly positive testimonials (not in accord with the reported results), the lack of any balancing comment and the “under $20 a week” sticker on the pack all indicate the thrust of this story was promotional; it was certainly not an objective report of a scientific study.

Finally, Prof Stough has said, “I was interviewed for about 30 minutes where I described in detail the methodology and limitations of the study.... However, ACA only used two sentences... They used footage that I've never seen before... We certainly didn't get the chance to review the show before it was aired... we never claimed it was break through when I was interviewed, I stressed it should be replicated and that the effects were mostly seen in sub ADHD symptom participants”.

[…]

I reiterate, I allege this program breached s.3.3 and 3.4 of the ACMA Commercial Television Code of Practice for News and Current Affairs. This program targeted a vulnerable population, parents whose children have been labelled as suffering from ADHD and encourages them to purchase a medicine that, appropriate reporting, would have pointed out works no better than a placebo. It is reprehensible and must be corrected.

Complaint to the ACMA received 4 April 2017:

I allege this program breached s.3.3 of the ACMA Commercial Television Code of Practice for News and Current Affairs. […]

The thrust of the story, “ADHD Breakthrough” is in stark contrast to the null results of the underlying major study hypothesis (paper attached). In addition, the positive “results” highlighted in the program “34% improvement in bad behaviour at home, a 13% improvement in attention and a 10% improvement in hyperactivity” were not reported as such in the paper and could only be derived from data-dredging a sub-set of participants by post-hoc analysis. Furthermore, the numerous images of Blackmores’ Lyprinol packs, the uniformly positive testimonials (not in accord with the published results), the lack of any balancing comment and the “under $20 a week” sticker on the pack all indicate the thrust of this story was promotional; it was certainly not an objective report of a scientific study.

Finally, Prof Stough has said, “I was interviewed for about 30 minutes where I described in detail the methodology and limitations of the study.... However, ACA only used two sentences... They used footage that I've never seen before... We certainly didn't get the chance to review the show before it was aired... we never claimed it was break through when I was interviewed, I stressed it should be replicated and that the effects were mostly seen in sub ADHD symptom participants”.

In short, this program was not bona fide news; it looks like an advertisement, it smells like an advertisement and it is an advertisement (and a very bad one), masquerading as news. […]


However, I also allege this program breached s.3.3 of the ACMA Commercial Television Code of Practice for News and Current Affairs. It targeted a vulnerable population, parents whose children have been labelled as suffering from ADHD. It encouraged them to purchase a medicine that accurate reporting would have pointed out works no better than a placebo. It is reprehensible and must be corrected. See also: https://croakey.org/a-current-affairs-adhd-breakthrough-bona-fide-news-or-unethical-advertising/ (attached).

So, how did the Nine ACA “ADHD breakthrough” story get it so wrong?


https://croakey.org/a-current-affairs-adhd-breakthrough-bona-fide-news-or-unethical-advertising/

https://croakey.org/a-current-affairs-adhd-breakthrough-bona-fide-news-or-unethical-advertising/

Attachment CLicensee’s response and submissions

Licensee response to the complainant dated 3 April 2017:

We write in response to your electronic complaint dated 1 March 2017 in relation to a report broadcast in A Current Affair on 15 February 2017 (the Report). The Report related to developments in the treatment of symptoms of Attention Deficit Hyperactivity Disorder (ADHD) and included information on a study conducted by Swinburne University of Technology (Study) showing favourable results associated with the use of PCSO- 524®, available as Lyprinol. We understand you have raised issues with the accuracy of the Report and references made to the Study in the course of the Report.

[…]

The aspects of your complaint which do relate to matters covered by the Code relate to accuracy and fair representation of viewpoints. As you might be aware, the Code states as follows:

3.3.1 In broadcasting a news or Current Affairs program, a licensee must present factual material accurately and ensure viewpoints included in the Program are not misrepresented.

3.3.2 Clause 3.3.1 applies to material facts and material misrepresentations only.

You have also raised section 3.4 of the Code which encompasses clauses 3.4.1 to 3.4.3. Clause 3.4.3 expressly states that current affairs programs are not required to be impartial and may take a particular stance on issues. Accordingly, section 3.4 does not apply to this matter. A Current Affair is entitled under the Code to provide a favourable or unfavourable view on a particular issue or matter depending on the nature and import of the material available to it.

The Report was not an advertisementWe understand from your complaint that you believe the Report was an advertisement “masquerading as news”. We can confirm that no commercial arrangement was entered into by Nine with the manufacturer, supplier or distributor of Lyprinol to broadcast the Report, nor was any valuable consideration received or exchanged for its broadcast. The Report was selected, prepared and broadcast solely on the basis of its newsworthiness.

In addition, it is not to be assumed that favourable treatment or positive commentary relating to a particular product or service in a report indicates it to be an advertisement or advertorial in nature. As already noted, Nine is entitled under the Code to adopt a particular stance on a matter in its current affairs programming.

The Study referred to in the Report provided new data showing improvements associated with PCSO-524®, otherwise known as Lyprinol. Given the nature of the Study and its results, it was reasonable for Nine to form the view that its findings would be of interest to the community and warranted positive treatment. The Study provided information that could potentially benefit a significant population experiencing difficulties with symptoms of ADHD. The reporting of developments in medical science that have the potential to assist in the supervision and treatment of pervasive medical conditions, including for example ADHD, is self-evidently in the public interest. In the case of this matter, the Study provided encouraging early evidence of favourable effects associated with Lyprinol.

Had the Report sought to advertise Lyprinol, viewers could expect to see repeated references to Lyprinol and vision of the Lyprinol packaging, as well as overt calls to action with information about how to purchase it and its precise cost. Whilst there were some


limited pack shots of Lyprinol, and references to its availability as a natural rather than prescription remedy and relatively low price, these comments were made wholly on the basis of their relevance and in keeping with the public interest purpose of the Report. It is difficult to see how A Current Affair could otherwise have covered the Study without some discussion of Lyprinol, or its benefits for the people using it.

Accuracy and fair representation of viewpointsIn order to consider your concerns relating to accuracy, we have reviewed Report and assessed it against the provisions of the Code. Nine denies that there is any significant or material error of fact arising from the Report which could contravene the Code. We provide the following comments in response to your allegations:

a) It was reasonable for Nine to consider the Study’s results as having found a positive effect associated with Lyprinol. The title of the Study is “Reduced inattention and hyperactivity and improved cognition after marine oil extract (PCSO-524®) supplementation in children and adolescents with clinical and subclinical symptoms of attention-deficit hyperactivity disorder (ADHD): a randomised, double-blind, placebo-controlled trial”. The conclusion to the Study also states a favourable result:

“the results presented indicate that PCSO-524® may be beneficial in reducing levels of hyperactivity and inattention in a population of children with clinical and subclinical symptoms of ADHD3.

b) The statistics referred to in the Report were drawn from a media release relating to the Study. Nine was under no obligation to base its report solely on the Study and is entitled to refer to related summary material should it wish to. Not only is it reasonable for Nine to rely on associated material in order to compile news material for broadcast, the Code expressly recognises the time pressures associated with the preparation and broadcast of such programming (see clause 3.1.2). The 24 hour news cycle demands the rapid assimilation of factual material – there is nothing precluding Nine from using summary material provided that summary material is verified.

c) At no point were viewers encouraged to abandon their ordinary treatment in favour of Lyprinol or that the findings of the Study were conclusive. It was made abundantly clear that the Report was dealing with new research the outcomes of which had yet to be established in medical science. The results of the Study were repeatedly referred to as “promising”, and were described only as “early results” as opposed to established scientific fact. The benefits identified in the Study were also referred to as having “the potential” to assist and were not expressed as having a definite effect. Viewers were not encouraged to adopt the findings of the Study as established scientific fact. A clear caution was also provided at the conclusion of the Report to seek independent medical advice prior to any change to medication.

d) To the extent each of the people interviewed by A Current Affair made claims or expressed opinions, they were reported as such, and were accurately and fairly represented in the Report. The statements made by the interviewees did not involve any exaggeration or amplification of the benefits of Lyprinol, but were their own personal opinions genuinely expressed

The Report aired from approximately 7.22pm to 7.27pm, with the total run time of the Report less than 5 minutes. Accordingly, the information provided in the course of the Report was necessarily a summary of the lengthier and more detailed Study itself. Any assessment of the accuracy of the Report must take adequate account of the format and brevity of a television segment which cannot comprehensively detail the information in a scientific report. It is simply not feasible within the short amount of time allocated to a Report to comprehensively convey the information set out in a detailed scientific report.

The Code itself recognises the practical limitations of news and current affairs production and the format and brevity of television segments which cannot comprehensively canvas all related facts. The requirement for accuracy is not absolute,

33 see page 403 of the Study


and must take into account countervailing circumstance. Clause 3.1.2 of the Code expressly requires that compliance with the accuracy provisions take account the facts known, or readily ascertainable at that time; the context of the Report; and the time pressures associated with the preparation and broadcast of such programming.

We note that your complaint refers to statements made by Professor Stough. Some of those statements were expressed to have been made in a private email and broadcast in the Media Watch Segment. The inclusion of Professor Stough’s comments in the Report was designed to elicit further information regarding Study and its results. The full interview was edited for brevity to fit into the Report, however Nine maintains that the comments reproduced from the interview in the Report were a fair reflection of the comments he provided to A Current Affair. The Code recognises the limited time available for program segments and report, and the requirement of accuracy or fair representation of viewpoints does not require Nine to comprehensively detail all aspects and themes that may be given more lengthy coverage. The requirement is that to the extent there are viewpoints expressed, they are fairly represented. Having regard to the material as broadcast, Nine does not consider that any viewer would be materially misled by Professor Stough’s interview material as reproduced in the Report –the points he made regarding the design of the Study were fairly represented.

In light of our investigations as set out above, we have not identified any factual inaccuracy in the information or material presented in the Report and do not consider that there has been any identifiable contravention of the Code. The Report reported on a new scientific study, and was broadcast on the basis of a clear public interest in compliance with the Code. The public is entitled to be informed of breaking developments in science that may have a material effect on people in the community and their management of chronic health conditions.

These are matters upon which the media has both a right and a duty to report, and it is an important function of the media to do so.

To the extent the Report included factual assertions regarding the efficacy of Lyprinol in treating the symptoms of ADHD, Nine maintains they were accurate, and were conveyed to viewers on the basis of their materiality to the issues reported opposed to any commercial incentive or intention to promote. However, we wish to assure you that we do take very seriously the matters you raise in your Complaint. We have contacted the relevant staff involved in order to investigate your concerns and they are aware of the issues you have raised. We thank you for taking the time to raise your concerns with us and we trust that this letter addresses your concerns. It is open to you to refer this matter to the Australian Communications and Media Authority for their consideration if you are not satisfied with this response.

Licensee submission to the ACMA dated 10 May 2017:

5 The Segment related to a study conducted by Swinburne University of Technology (Study). The Study sought to measure improvements in levels of hyperactivity, impulsivity and inattention in children aged 6 to 14 years as a result of the administration of PCSO-524® (also marketed as Lyprinol).

6. Nine categorically denies that the Study was misrepresented. A copy of the reported results of the Study, Reduced inattention and hyperactivity and improved cognition after marine oil extract (PCSO-524®) supplementation in children and adolescents with clinical and subclinical symptoms of attention-deficit hyperactivity disorder (ADHD): a randomised, double-blind, placebo-controlled trial (Report) is attached at Annexure A.

7. It is clear from a reading of the Report that the representations made in the Segment in relation to the potential benefits of Lyprinol are supported by the findings of the Study. The conclusion of the Report itself states:

"Conclusions The results presented indicate that PCSO-524® may be beneficial in reducing levels of hyperactivity and inattention in a population of


children with clinical and subclinical symptoms of ADHD"1

8 Numerous other statements in the Report corroborate the potential efficacy of PCSO-524® including:

One promising marine-based preparation that may benefit children and adolescents with behavioural problems and which is rich in LC PUFAs [long-chain polyunsaturated fatty acids] is PCSO-524®, which contains a standardised lipid extract of the New Zealand green-lipped mussel (Pema canaliculus). The extract contains a unique combination of free fatty acids, sterol esters, polar lipids and carotenoids that provide a highly condensed form of marine lipids (Kalafatis 1996).

With respect to the potential applications for symptoms of inattention, impulsivity or hyperactivity, the anti-inflammatory actions of PCSO-524® may benefit children who have clinical or subclinical ADHD by decreasing the ratio of arachidonic acid (pro-inflammatory to eicosapentaenoic acid (anti inflammatory) (AA/EPA), which may lead to improvements in associated symptoms (Young et al. 2005; Sorgi et al. 2007).

Although many of these alternative treatments have not been subjected to rigorous scientific clinical trials, there is growing evidence for marine-based intervention efficacy in treating behavioural issues associated with ADHD (Sarris et al. 2011).

9 This is consistent with the Segment which clearly identified the results of the Study as an emerging but promising area of research. The Study was described as showing "early" but "promising" results that indicated some potential for Lyprinol as a treatment for ADHD or its symptoms. At no stage were the findings of the Study conveyed as conclusive, instead, the benefits identified in the Study were referred to having "the potential" to assist.

The positive results highlighted in the Segment

10 The Complainant in this matter alleges that the positive results provided in the Segment "could only be derived from data-dredging a sub-set of participants by post hoc analysis". Nine strenuously opposes the characterisation of the results alleged by the Complainant. The positive results highlighted in the Segment were demonstrated by the Study, and are drawn from its results.

11 In addition, post hoc analysis is a common research tool - and does not carry the negative implications sought by the Complainant. In this, the Study was designed to provide two sets of results, identified in the Report as follows:

''The primary aim of the current study was to determine if supplementation with PCSO-524® reduced parental reports of hyperactivity and inattention in a population of Australian children and adolescents aged 6 to 14 who had increased levels of hyperactivity or inattention compared with placebo. A secondary aim of the study was to investigate changes in objective computerised measures of cognition and mood as well as electrophysiological measures of brain wave ratios."

12 Whilst the parental reports showed no improvement, the objective computerised measures showed a number of significant improvements. Thus, the net result of the Study was positive and justified further research into the positive effects of Lyprinol.

13 Nine notes in this regard that the reported net result of the Study is consistent with the published conclusion of the Report, which also provided an aggregate result being that PCSO-524® may be beneficial to children with clinical and subclinical symptoms of ADHD (see para 7 above). Nine disputes the Complainant's allegation that the results of the Study were misrepresented, in

11 see page 403 of the Report (being page 1 of the paper)


circumstances where the reported conclusion of the Study states an overall favourable result.

14 The Study itself was published in a highly respected and prestigious scientific journal, Psychopharmacology, which is subject to peer review prior to publication. Whilst the Study provided several means of analysis, the identification of positive effects associated with PCSO- 524® was an important development which warranted coverage. As noted in the Report, ADHD is the most prevalent developmental disorder in school-aged children, with the ADHD's prevalence

estimated within Western cultures to be between 5 to 12%.2 The emergence of positive results associated with a non-prescription, naturally derived remedy is clearly information that may benefit the community and the Segment was broadcast with a clear public interest.

15 To allege that the results provided in the Segment were somehow manufactured or concocted by "data-dredging" after the fact is incorrect, in circumstances where the results obtained from the computerised measures showed clear statistical improvements. The fact that one data set based on objective computerised measures provided positive results does not detract from the validity of that data.

16 The objective measures obtained in fact showed a number of improvements associated with PCSO-524® and were reported in the Study results as follows:

a. Whole sample treatment group differences were noted in secondary outcome, the COMPASS cognitive task, which included significant improvements in working memory on three domains in favour of PCSO-524®.

b. Subsample analysis indicated significant treatment effects for participants who had less-severe symptoms (high inattention, high hyperactivity or no subtype-non-combined type) than those who had more severe symptoms (combined high hyperactivity and inattention-combined type) based on attention-deficit/hyperactivity disorder IV rating scale scores (DuPaul et al. 1998).

c. Non-combined type (NCT)33 ... analysis revealed a significant improvement in children who consumed PCSO-524® on CPRS [Conners Parent Rating Scale] scores of hyperactivity, learning abilities and improved behaviour at home, as well as improvements on DSM scores of attention and hyperactivity.

17 In light of the clearly identified positive results in the Study, Nine does not accept the Complainant's allegation that the positive results highlighted in the Segment do not accord with the Study, or that there has been any misrepresentation in relation to its findings. The Report clearly identifies and discloses positive results associated with the whole sample treatment group, as well as certain subsamples. The whole sample exhibited significant improvements in memory, and the non-combined type sample showed a significant improvement on scores of hyperactivity, learning and behaviour as well as improvements in attention and hyperactivity.

18 It is clear from the Study that ADHD is a complex condition with a range of symptoms which may exhibit in different combinations and at different levels (both clinical and subclinical). The analysis of subsamples was not, as the Complainant suggests, a "data-dredging" exercise but a legitimate part of the Study in order to better understand the efficacy of Lyprinol on particular characteristics of the condition.

19 The statistics in the Segment were obtained from a media release associated with the Study (the Media Release), a copy of which is attached at Annexure B. The

2 2 See Introduction, at page 1 of the Study3 3 The NCT subsample was comprised of three classifications, which included those who met criteria for high

inattention, those who met criteria for high hyperactivity and those who did not meet criteria for either high inattention or high hyperactivity.


information provided in the Segment was also based on, and is an accurate reflection of the information provided in the Media Release.

20 Relevantly, the Media Release states that:

"The results, published in the February 2017 issue in the prestigious journal Psychopharmacology, show significant improvements in the behaviour of children with high levels of hyperactivity or inattention.

Analysis of the data revealed that, compared to the placebo group, the children taking 3-4 capsules of Lyprinol® everyday for 14 weeks showed:

- 34% improvement in parental reports of bad behaviour at home,

- 13% improvement in attention,

- 10% improvement in symptoms of hyperactivity,

- 5% improvement in symptoms relating to teaming problems and

- a reduction in the likelihood of meeting the criteria for ADHD (symptoms improved by 20%), compared to the placebo group

21 In connection with the investigation of the Segment, Nine has sought further information as to how the Media Release was prepared, and the basis for the statistics set out in the Media Release. We are advised that the Media Release was approved by Professor Stough, and prepared with the assistance and input of James Kean, one of the authors of the Report involved in the Study from the Centre for Human Psychopharmacology, Swinburne University. The particular statistics highlighted in the Segment were provided by Mr Kean for the purposes of the Media Release and were derived from the Study by assessing clinical and subclinical ADHD children with high levels of hyperactivity or inattention and looked at the percentage of improvement for the PCSO-524® group, minus the percentage of improvement seen in the placebo group.

22 Nine submits that it is entitled to rely on additional summary and research materials provided they are from a reputable source. The Media Release was issued by Bite Communications on behalf of Pharmalink International Limited. Pharmalink International Limited funded the Study and it was reasonable for Nine to rely on the information set out in the Media Release - particularly given the involvement of Mr Kean and Professor Stough. In addition, given the complexity of the Study, it is reasonable for Nine to have relied on statements made by the experts conducting the Study - whether via interview or published statement.

23 We note in this regard that the Media Release includes a number of quotes from Professor Stough who makes a number of statements regarding the efficacy and promise of Lyprinol, including:

"It's exciting to consider the potential for Lyprinol® as a natural, well-tolerated option to help manage symptoms and potentially improve their family and school lives"

"I believe there may be a role for Lyprinol® as an early intervention for children with severe behavioural problems which is an often overlooked area of mental health"

24 The Media Release also provides that: "The results, published in the February 2017 issue in the prestigious journal Psychopharmacology, show significant impro v ements in the behavi o ur of c h ildren wi th h igh lev e ls o f hyperactivity or ina ttention ."

25 Nine further notes that other media outlets have published similar information using the same statistics, presumably from the same Media Release.

[…]


Uniformly positive testimonials about Lyprinol

26 The mere existence of uniformly positive testimonials in and of itself regarding a product or service does not invoke a breach of the Code. There must be some inaccuracy or misrepresentation in the testimonials themselves.

27 In addition, by virtue of clause 3.4.3 of the Code, current affairs programs are not required to be impartial and can adopt a particular stance. This means that programs such as A Current Affair can adopt a negative or positive stance on a particular matter and there is also no requirement in the Code that a negative viewpoint is required for inclusion in current affairs reports. Clause 3.4.3 of the Code clearly permits an overall favourable impression being conveyed by a current affairs segment - so long as there is no misrepresentation in the viewpoints that are expressed.

28 Nine considers that the interviews broadcast in the Segment accurately and truthfully reflected comments obtained from the interviewees. To the extent each of the people interviewed in the Segment made claims or expressed opinions about the efficacy of Lyprinol, they were reported as such, and were fairly represented in the Report.

29 If anything, it is evident that the viewpoints expressed were measured, and conveyed only moderate improvements associated with Lyprinol. For example, one interviewee states that "Lyprinol is just a one-percenter. It's that little thing that makes a difference. It's helped me cross the finish line a little better and it's brought me just a little bit faster to where I am". Another parent interviewed stated that: "It was actually very gradual and it was very mild. But it really did make a difference to his levels of concentration, his ability to listen and his ability to communicate more effectively".

30 While the full interviews were edited for brevity to fit into the Report, there is no identifiable misrepresentation of their opinions. Other statements made by the interviewees that were not broadcast but evidence the truthfulness of the excerpted material include the following:

• Amanda (Jack's mother) - It certainly did make a difference to Jack and his ability to focus and it almost bought him a little bit of thinking time... he was doing better at school, his social networks were improving with a couple of the kids. You know obviously some of the damage had already been done because of his behaviour in the classroom but the teachers were great they noticed a difference in his attitude and his ability to work better in the classroom.... We have continued to take the drug because its works very well for Jack and continues to help him as he gets older. He's in a new school and he's doing really well.

• Jack - yeah I feel a lot better taking it. At school I feel like I can concentrate a bit better and my school work has improved since I've been taking it.

• Jacqui (Sam's mother) - Certainly I was very comfortable adding Lyprinol to our regime of treatment for Sam and I would say it just adds that extra little bit of improvement and so we've continued with it over the years.

• Sam - You can get that extra three or four per cent on an exam or test. Going into year 12 made a massive difference because those one, two, three per cent makes a difference between going to different unis and where you end up.

31 Such comments are consistent with Professor Stough's statement in the Media Release that: "types of improvements are calmer children that are better able to focus, which may help them to perform simple daily tasks such as unpacking their


school bag, sitting at the table for dinner and reading a book".4

Alleged inaccuracies related to the efficacy of Lyprinol32 Nine maintains that an ordinary, reasonable viewer having viewed the Segment

would have understood that the information provided in the Segment was derived from an early study, and was not conclusive scientific fact. It was made abundantly clear that the Report was dealing with new research, the outcomes of which had yet to be established in medical science. The results of the Study were repeatedly referred to as "promising", and were described only as "early results". The benefits identified in the Study were also referred to merely as having "the potential" to assist and were not expressed as being exhaustive, conclusive, or having a definite effect. In this way, viewers were duly advised that the results of the Study were preliminary in nature.

33 Equally, at no point were patients encouraged to abandon their ordinary treatment in favour of Lyprinol, or advised that Lyprinol would provide a complete treatment for ADHD. To the contrary, the Segment included advice that Lyprinol might form part of a holistic treatment plan ("It's everything through to the right medication to the right routine at home and if you can get all those things working in harmony it works really well") and viewers would have understood the Segment to be suggesting that Lyprinol could be considered as a supplement to existing treatments rather than a replacement treatment.

34 The closing comments made by the host of the program also explicitly advised viewers to consult their doctor prior to making any changes to medication.

Omission of the relevant fact that Lyprinol works no better than a placebo.

35 For the reasons set out above at paragraphs 10 to 25, Nine denies that Lyprinol works no better than a placebo. The Study clearly states that there were significant improvements found, and this was corroborated by the accompanying Media Release.

36 Whilst it is true to say that the parental reports from the primary analysis did not show an improvement over placebo, the aggregate result of the Study was positive. There is no omission involved in summarising the results of the Study to present its overall result. This is consistent with the reported conclusion of the Study itself, and the reported results clearly state the improvements as follows:

• Repeated measures ANOVA on post hoc subsample analysis indicated significant improvements in hyperactivity (p = 0.04), attention (p = 0.02), learning (p = 0.05) and probability of ADHD (p = 0.04) with a medium to large average effect size (d = 0.65) in those children who did not meet criteria for combined hyperactivity and inattention. Furthermore, significant improvements in the PCSO-524(4) group were indicated in a whole sample repeated measures ANCOVA on recognition memory between baseline and week 8 over placebo (p = 0.02, d = 0.56); this difference was not sustained at week 14.

37 Nine is entitled to report on the results of the Study in a way which focused on those elements of the Study's findings which would have the greatest impact on the community. Indeed, the nature of any news or current affairs report involves the distillation of information in summary form, and the articulation of those elements that will be most relevant to the public. The production of editorial content necessarily involves discretionary decisions as to the inclusion of certain matters over others.

38 The Code itself explicitly recognises at clauses 3.3.1 and 3.1.2 that compliance with the news and current affairs provisions of the Code applies only to material facts (and by extension, only material omissions), and must be assessed taking

4 4 See Media Release at page


into account all of the circumstances that relate to the preparation of preparing and broadcasting the material, including the facts known at that time, the context of the Segment and the time pressures associated with preparation of such programming.

39 In Nine's submission, there is no identifiable or material omission or misrepresentation that can be legitimately derived from the Segment.

Alleged misrepresentations of Professor Slough's viewpoints.40 The Complainant in this matter alleges that Professor Stough's comments

misrepresented his viewpoint. Nine vigorously opposes any such allegation. Each of Professor Stough's statements were his own, made of his own volition, and were presented in the Segment fairly.

41 The ACMA has indicated that it is investigating two alleged misrepresentations as follows:

4. Professor Stough never claimed that the study was a breakthrough.

5. Omission of Professor Stough's viewpoints that (i) the study should be replicated and (ii) the effects were mostly seen in sub ADHD symptom participants.

42 Nine notes that the alleged misrepresentations of Professor Stough's viewpoints are reliant on extraneous information supplied by the Complainant, and are not derived from any objective assessment of the Segment itself or the entire interview between Nine and Professor Stough.

43 Nine is aware that by his own admission in the online publication Croakey, the Complainant contacted Professor Stough following the broadcast of the Segment.5 We note that Nine is not privy to the conversation, nor the nature or tenor of questions posed to Professor Stough, and queries the basis upon which it can be called into evidence in this matter. In a court of law, evidence that is "hearsay" is not permitted for a number of established grounds, including the inaccuracy of repetition, the risk of fabrication and the inability to cross-examine.6

44 Nine is aware that the Complainant has alleged that Professor Stough has indicated that he provided detailed comments to Nine of which Nine only used "two sentences". Nine does not accept that the omission of some of Professor Stough's interview material constitutes a misrepresentation.

45 Nine submits that given the compressed nature of a current affairs report or segment, it was not possible to comprehensively outline the information provided by Professor Stough in his full interview. The interview material reproduced in the Segment was necessarily limited for brevity, however, the relevant test under clause 3.3.1 is whether Professor Stough's viewpoints that were conveyed in the broadcast were misrepresented.

46 Nine has reviewed the full transcript of Professor Stough's interview, and can confirm that the interview ran for approximately 9 minutes (and not the alleged 30 minutes indicated by the Complainant). The total run time of the Segment itself was approximately five minutes. Given the compressed nature of the Segment, it was simply not possible to replicate the level of information or comprehensively detail the material canvassed by Professor Stough. Instead, Professor Stough's statements as reproduced in the Segment were necessarily limited for brevity, and were confined to the following statements:

• "the results are pretty clear and really promising"

55 h ttps ; //croakev . org/a - current - affairs - adhd - breakthr ou q h-b o n a- fi de-news - or-uneth l cal-advertising /

66 See for example, the Australian Law Reform Commission website at h ttp:/ / www.alr c . go v . au/publications/ ? . %20The %20Hearsav%20R u l e%20and%20Se c llon%2060/hearsay-rule


• "We randomised 144 children with high hyperactivity or inattention and these are behaviours that would be causing them a lot of trouble in school and we randomised them into two groups one which they took Lyprinol for 14 weeks and the other group was a placebo for 10 weeks."

47 Nine maintains the accuracy of the statements made, and considers them to fairly represent the information provided by Professor Stough in his interview with A Current Affair. Other statements made by Professor Stough during his interview that were not included in the broadcast of the Segment included the following:

• "The results are pretty clear and really promising and very exciting"

• "What we found after the 14 weeks is that some of the children who had very high hyperactivity or inattention, improved considerably in terms of if they were taking the Lyprinol compared to the placebo in terms of their behaviours. And all of the children improved their cognitive capacity or performance."

• "So Lyrpinol is a really unique, new type of marine based extract and it contains EPA and DHA which are the essential omega 3 essential fatty acids but also comprised up to 90 different fatty acids, so there's a lot of molecules and substances in this really interesting extract. So it really was a great upside in terms of using this substance, in terms of improving brain and cognitive behavior and behavior of children who have some difficulties in concentrating and paying attention at school."

• "Ok so um children have very very high hyperactivity or inattention who might classify for um the classification of ADHD for instance, they comprise for about 3 or 4% of the population, there is literally 30 or 40 other percent of the population who don't qualify for that category never the lesshave incredible trouble paying attention and ah and doing well at school so our results show that 30 or 40% of the population that really benefited from ah Lyprinol."

• "Um it's not indicated for that but soon the results suggest if your son or daughter might have high, high hyperactivity or inattention it might be worth trying."

• "Has some very positive benefits, our results are quite strong improves cognition and reduces inappropriate inattention, um those types of behaviours."

• "So um if I had a child that ah was suffering some of these symptoms, um then I would definitely be trying it, um if your child has a very strong ADHD type symptoms I certainly wouldn't be taking them off the medication, such as um the ADHD medications um but you might even want to try it as a joint treatment."

• "Um look I just think this is a really um exciting thing, um result is publishing of ah you know really excellent journal um and ah you know these trials take a long time to do. It took us about 3 years to run this trial, um and ah it's great to, to finally find some really good results for this substance which is a really unique substance. Um it's a high, it's manufactured at a very high quality and we know exactly what the ingredients and so on and we are really looking forward to the next stage of this product."

Professor Stough never claimed that the Study was a breakthrough

48 In Nine's submission, Professor Stough's statements as reproduced in the Segment accurately represent his viewpoints as provided to Nine. Whilst he did not use the word "breakthrough", the nature of his comments (as set out above)


were consistent with the Study as providing new and exciting information regarding the potential use of Lyprinol.

49 Nine does not in any event believe that it is inaccurate to suggest that the Study

was a breakthrough. The Study was the first of its kind.7 Nine is not aware of any other study into the efficacy of Lyprinol in the treatment of symptoms of ADHD. The characterisation of the Study as a breakthrough is also consistent with the opening statement of the Media Release, which refers to "a ground breaking Australian study" and as noted above, was approved by Professor Stough.

50 Professor Stough has also been quoted in the Media Release with the following statements relating to the findings of the Study:

In reviewing data from the study, we found the biggest improvements in children with less severe ADHD and those with behavioural issues significant enough to impact their lives on a daily basis, but not severe enough to be diagnosed with ADHD...

These children often fall through the gaps because they are unable to get the help they need. It's exciting to consider the potential for Lyprinol® as a natural, well tolerated option to help manage symptoms and potentially improve their family and school lives...

I believe there may be a role for Lyprinol® as an early intervention for children with severe behavioural problems, which is an often overlooked area of mental health."

Omission of Professor Stough's viewpoints that (i) the study should be replicated and (ii) the effects were mostly seen in sub ADHD symptom participants

51 As already noted, Nine is not under an obligation to reproduce each and every viewpoint expressed by Professor Stough. Any news or current affairs segment must necessarily be a summary of the available information, and the omission of certain opinions does not equate to a breach of the Code. Instead, the relevant Code obligation is directed at ensuring that what is expressed as a viewpoint is not misrepresented.

52 The Segment did not refer to a need for the Study being replicated, however, Nine would suggest that an ordinary reasonable viewer would understand that the Study being the first of its kind, would require further similar studies in order to verify its findings. As already noted, at no stage in the Segment was it suggested that the Study was settled medical science. Instead, its results were clearly expressed as early results showing promise.

53 Nine categorically denies that the results of the Study suggested that the positive results of Lyprinol were confined to sub ADHD symptom participants only. The Conclusion of the Study clearly states that there were potential benefits of PCSO-524® for those with clinical and subclinical symptoms of ADHD: "Conclusions The results presented indicate that PCSO-524® may be beneficial in reducing levels of hyperactivity and inattention in a population of children with clinical and subclinical symptoms of ADHD"8

54 At the commencement of his interview with A Current Affair, Professor Stough provided the following overview of the Study and indicated that there were favourable effects for all children as follows:

"ummm well maybe I'll explain exactly what we did. We randomised 144 children with high hyperactivity or inattention and these are behaviors that would be causing them a lot of trouble in school and we randomised them

7 "The Swinburne University of Technology pilot trial is the first to examine the association between cognitive function in children and fatty acids from New Zealand green-lipped mussels (PSC0-524®), available as the supplement Lyprinol®." See page 1 of Media Release

8 see page 403 of the Report


through two groups in which they took Lyprinol for 14 weeks or the other group was a placebo for 10 weeks and what we found after the 14 weeks is that some of the children who had very high hyperactivity or inattention, improved considerably in terms of if they were taking the Lyprinol compared to the placebo in terms of their behaviors. And all of the children improved their cognitive capacity or performance"


Attachment DACMA considerations for determining factual content:

> In practice, distinguishing between factual material and other material, such as opinion, can be a matter of fine judgement.

> The ACMA will have regard to all contextual indications (including subject, language, tenor and tone and inferences that may be drawn) in making its assessment.

> The ACMA will first look to the natural and ordinary meaning of the language used.> Factual material will usually be specific, unequivocal and capable of independent

verification. > The use of language such as ‘it seems to me’ or ‘we consider/think/believe’ will tend to

indicate that the content is contestable and presented as an expression of opinion or personal judgement. However, a common sense judgement is required and the form of words introducing the relevant content is not conclusive.

> Statements in the nature of predictions as to future events will rarely be characterised as factual material.

> Statements containing argumentative and exaggerated language or hyperbole will usually indicate a subjective opinion and will rarely be characterised as factual material.

> The identity of the person making a statement (whether as interviewer or interviewee) will often be relevant but not determinative of whether a statement is factual material.

> Where it is clear in the broadcast that an interviewee’s account is subjective and contestable, and it is not endorsed or corroborated, their allegations will not be considered as factual assertions.

> Where an interviewee’s stance is separately asserted or reinforced by the reporter or presenter, or proof of an allegation is offered so that it becomes the foundation on which a program or a critical element of the program is built, it may be considered a factual assertion.8

> Sources with expertise may be relied on more heavily than those without, in determining whether material is factual, but this will depend on:> whether the statements are merely corroborative of ‘lay’ accounts given by other

interviewees > the qualifications of the expert> whether their statements are described as opinion > whether their statements concern past or future events9 > whether they are simply comments made on another person’s account of events or

a separate assertion about matters within their expertise.

8 See investigation 2712; Channel Seven Adelaide Pty Limited v Australian Communications and Media Authority [2014] FCA 667.

9 See investigations 3066, 2961.


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