IMEX HEALTHCARE AND MARCELINE JORDAN AGAINST SUNDAY STAR-TIMESWalker Associates, Barristers and Solicitors of Auckland, acting for Imex Healthcare Ltd and its managing director, Marceline Jordan, complained, on instructions, that an article in the Sunday Star-Times of 22 September 2002, contained "misleading, false and inaccurate material, which defames our client and its product."
The article, a half-column piece under the by-line of Pravin Char, carried the headline, "Breast pill claims 'rubbish'." It reported that "the first over-the-counter pill for women concerned about their breast size has been attacked by health professionals". Introduced this month ("amid the fanfare of a TV advertising campaign") the dietary supplement claims to "maintain firm and full breasts". It is available at chemists at a cost of $99 for a month's supply. Ms Jordan was quoted as saying that Imex cannot advertise that Volupta enlarges breasts. A "leading breast physician" was quoted as describing the pills as "a complete waste of time. They will not increase breast size and will not firm up breasts - breasts sag because of gravity."
Walker Associates argued:
- it is claimed that Volupta had been "attacked by health professionals". None of the responsible agencies - the Ministry of Health, the New Zealand Food Safety Authority, or the Public Health Unit - to which health professionals would direct complaints about such a product, had contacted Imex.
- it is a "patently inaccurate" claim that the comment of one health professional is an "attack by health professionals";
- the article states as a fact that this "supplement could not be advertised as enlarging breasts. This is not correct and thus is an inaccurate statement”. The product had not been registered as "a medicine" and accordingly no therapeutic qualities (whether true or not) are able, by law, to be ascribed to it;
- the headline was stated as a fact, not an opinion; the health professional cited by the newspaper was moreover expressing an opinion on claims "which are not made by our client".
The editor of the Sunday Star-Times responded: single inverted quote marks had been adopted as the newspaper's style in headlines, in conformity with practice around the world; 'rubbish' was put in single inverted commas because it was an opinion; another health professional had been consulted in preparation of the story - a chemist had also told the newspaper that the pills were "a load of rubbish" - although her statement had not been used; the health professional whose views had been published had made further comments (again not used) - "These Volupta pills are not going to do what they purport to do, they aren't going to make breasts firmer and fuller. These pills will not increase breast size and will not firm up breasts"; the story had noted that Volupta could not be advertised as enlarging breasts because any product claiming to make such changes to the body has to meet the medical criteria under the Medicines Act.
There were also exchanges between the parties to this complaint about verbal undertakings to consult before publication and about the behaviour of the two principals in the case - the reporter and the director of Imex. The Press Council cannot adjudicate on such matters, especially as the argument on behalf of Ms Jordan is made at one remove by Walker Associates.
On the face of it, the article rests on an expression of doubt by a single specialist about the efficacy of Volupta. The editor of the Sunday Star-Times commented that a chemist was also consulted, but her comments were not used. It is lax journalistic practice to publish the comments of only one authority as the basis for statements made in the plural form - as in "attacked by health professionals" and "doctors insist any claims to breast enhancement are rubbish".
The more important issues are whether the article is inaccurate, unfair or not newsworthy.
The story was obviously a matter of public interest. Different points of view about the product are reflected. The claim made by the distributors that Volupta will "maintain firm and full breasts" was reported. So too was Ms Jordan's assertion, when first interviewed, that the pills “worked to enhance breast size”, along with her personal testimony “Anyway it does work – my breasts are getting bigger, my husband told me.” Ms Jordan does not challenge the accuracy of those reported comments. It was duly noted that she later contacted the Sunday Star-Times to say that she could not make claims that the supplement boosted breast size but that all claims made about Volupta complied with the law.
On the other side of the argument stand the assertions that "Doctors insist any claims to breast-enhancement are rubbish" and the comment by a named "leading breast physician" that the pills are "a complete waste of time. They will not increase breast size and will not firm up breasts".
The story is accordingly balanced and not unfair. It is stretching a point to claim that it is inaccurate to report that the product cannot be advertised as enlarging breasts, since it had not been registered as a medicine and accordingly no claims (whether true or not) may be made about its therapeutic qualities. As for the headline, the Press Council accepts that the usage of inverted single commas around the word ‘rubbish’ is in line with usual practice in a headline and that there was no intention to convey the impression that it was a factual statement. The Press Council interpreted this usage of ‘rubbish’ as an opinion.
The Press Council does not uphold the complaint.