NATHANIEL HERZ-EDINGER AGAINST THE PRESS
Case Number: 3498
Council Meeting: March 2024
Decision: Upheld
Publication: The Press
Principle:
Accuracy, Fairness and Balance
Comment and Fact
Conflicts of Interest
Corrections
Ruling Categories:
Advocacy
Bias
Overview
- On 9 December 2023, The Press published an opinion piece by Dr Eric Crampton, chief economist of the New Zealand Initiative, about the scrapping of changes to tobacco-control laws. Nathaniel Herz-Edinger complained that the article had factual inaccuracies, and a conflict of interest relating to the writer was not properly declared. The complaint is upheld under Principle (10) Conflicts of Interest.
The Article
- The article was headlined Nipping tobacco prohibition in the bud. It began by discussing alcohol prohibition in the US, which Dr Crampton said had a terrible cost in terms of crime, gang warfare and a black market. The article said: “In 2022, the Labour government legislated that tobacco prohibition would take effect from April 1, 2025.” Tobacco prohibition in New Zealand would exempt cigarettes containing trivial amounts of nicotine, but the harm was in the by-products of combustion, not nicotine. The new Government had promised to undo the legislation, but this had been opposed by those who argued that such a move would cause “immense harm to health”. However, the evidence showed the health benefits of the restrictions were lower than claimed and there would be a shift to illicit sales of “real” cigarettes. New Zealand had dodged a bullet in abandoning prohibition, the article said.
The Complaint
- Nathaniel Herz-Edinger said the article breached Principle (1) Accuracy, Fairness and Balance, Principle (4) Comment and Fact, Principle (10) Conflicts of Interest and Principle (12) Corrections. Saying that tobacco prohibition would take effect from April 1, 2025 and linking this to prohibition in the US, created the impression that after this date no New Zealanders would be able to purchase tobacco, just as no Americans were able to purchase alcohol under prohibition. This was inaccurate, Mr Herz-Edinger said.
- The article also claimed the harm from smoking is in the by-products of combustion, not the nicotine. Mr Herz-Edinger said this was scientifically inaccurate and misleading. Nicotine was shown to have adverse health effects, and the implication that nicotine addiction causes no harm was misleading.
- Dr Crampton's employer, the New Zealand Initiative, was funded by tobacco companies (Imperial Brands was included in its list of members), and this conflict of interest should be clearly stated in the article, Mr Herz-Edinger said.
The Response
- Stuff, The Press’ parent company, said the column was clearly marked opinion and it was generally accepted that opinion articles were likely to represent a particular perspective on the issue they addressed. Dr Crampton was generalising when he referred to the Labour government’s stance on prohibition. It was widely understood that Labour’s law change would have led to a gradual total prohibition, with the restriction beginning with people aged 14 years and over, Stuff said. In response to this, Mr Herz-Edinger said prohibition had a clear meaning and this did not apply to Labour’s 2025 policy. The article did not qualify the use of the word “prohibition” by referring to a gradual increase in age. A reasonable reader would assume that American-style prohibition would take effect from April 2025.
- According to the NHS, nicotine was addictive but relatively harmless, Stuff said. Mr Herz-Edinger said there was a difference between harmless and “relatively harmless”. Nicotine was classed as a toxic substance.
- In its initial response to Mr Herz-Edinger, Stuff said Imperial Brands was one of a large number of New Zealand Initiative members and Stuff would only require disclosure if an article related directly to a member. Mr Herz-Edinger questioned this, saying: “It is hard to imagine a more direct relationship than that between tobacco regulation and a tobacco company.”
- In its formal response to the Media Council complaint, Stuff reconsidered its position on disclosure, saying several readers had “rightly expressed concern” that some of Dr Crampton’s columns were not adequately disclosed, particularly when he dealt with issues related to paying members of the New Zealand Initiative. Stuff had reviewed its policy and such disclosures would be included when Dr Crampton wrote about topics that related specifically to organisations that were members of the institute. On February 13, 2024 they added a footnote to the article saying “The NZ Initiative is a research group funded by a range of corporates and other organisations, including British American Tobacco and Imperial Brands.” A link to the full list of supporters was also provided. Mr Herz-Edinger said this was unsatisfactory and the disclosure should be at the beginning of the story, as many readers would not read the article to the end.
- Dr Crampton also commented on the complaint, saying he viewed the Very Low Nicotine Content (VLNC) rules as a prohibition on smoked tobacco. The VLNC rules set a tighter standard for nicotine allowed in cigarettes than American alcohol prohibition set for alcohol allowed in “near-beers”. Nicotine would still be available in vape form, but buying illicit tobacco would be the only way of getting a “real” cigarette, as he had stated in his column. He also commented on the conflict of interest question saying: “I would have written exactly the same thing regardless of who our members are, because I believe it to be true.”
- Mr Herz-Edinger disputed Dr Crampton’s prohibition argument, saying the situations were quite different. In prohibition-era USA, the toxin (alcohol) was completely prohibited over a low threshold, regardless of medium. In New Zealand, the toxin (nicotine) would remain available via vapour, while the medium (tobacco) would also remain available separately. It is clear that no substance in New Zealand would be prohibited. The use of the term prohibition was therefore misleading, he said. He noted that Dr Crampton had not defended his assertion that “the harm from smoking is in the by-products of combustion, not the nicotine.” Despite Dr Crampton’s assertion that he would have written the same thing regardless of who the members were, Mr Herz-Edinger said readers would be better served if they were provided with this information.
The Discussion
- The article was clearly marked opinion, so it has been considered under Principle (5) Columns, Blogs, Opinions and Letters, rather than Principle (1) Accuracy, Fairness and Balance, which is more applicable to news stories. Principle (5) states that although balance is not essential for opinion pieces, material facts should be accurate.
- Mr Herz-Edinger raises two instances where he says the article is inaccurate. Firstly, the implication that the law passed during the term of the previous government would result in American-style prohibition for tobacco in New Zealand. Mr Herz-Edinger says this is plainly not the case. Stuff and Dr Crampton offer different defences of the use of the term prohibition, with Dr Crampton saying the word “prohibition” is accurate when a comparison is made between the amount of alcohol allowed in “near-beers” under US prohibition, and the amount of nicotine allowed in cigarettes under the proposed rules. Stuff, on the other hand, said it was widely understood prohibition would be gradually introduced. It is clear from this that there are various interpretations of what prohibition meant. Although the statement: “In 2022, the Labour government legislated that tobacco prohibition would take effect from April 1, 2025,” could be seen as misleading, there was further information in the story saying that cigarettes with “trivial” amounts of nicotine could still be sold. The Media Council’s opinion is that this would have alerted readers to the fact that any “prohibition” on tobacco was not total.
- Mr Herz-Edinger also complains about the statement that the harm from smoking was due to by-products of combustion rather than nicotine. This statement is debatable, according to the information supplied to the Council, but it seems unwise to make such a definitive statement when it is widely accepted that nicotine addiction leads to damage.
- However, the Council cannot say that either of the two factual matters complained about were clearly inaccurate in an opinion piece such as this, which readers would realise was clearly pushing one side of the argument about tobacco control. This aspect of the complaint is not upheld.
- The Council agrees with Mr Herz-Edinger that the conflict of interest should have been declared, so readers are fully informed about the opinion writer’s connections. In cases like this, where the writer’s employer has many financial supporters, it will always be an editorial judgement call about whether any potential conflict of interest is significant enough to require disclosing. In this case, the Council considers it was a direct link that made disclosure the proper course of action. It acknowledges Dr Crampton’s statement that he would have written the same thing regardless of who the New Zealand Initiative’s members were, but the Council believes there should have been more clarity around any possible conflict of interest. The Council does not agree with Mr Herz-Edinger that the conflict of interest declaration needed to be at the top of the article and considers this a matter of editorial discretion.
- The Council commends Stuff for reconsidering its position on the conflict of interest question and for changing the way it will deal with such matters in the future. Despite this, the Council considers that the fact that two tobacco companies were supporting the organisation employing the writer of an article opposing tobacco control was a clear conflict of interest. Stuff should have been aware of this at the outset, or at least when it was alerted to it by the complainant. Because Stuff initially denied that it should have added a conflict of interest declaration, and because it took more than two months for the footnote to be added, by which time the updated article would not be seen by many people, the complaint under Principle (10) Conflicts of Interest is upheld.
- Decision: the complaint is upheld under Principle (10). Other aspects of the complaint are not upheld
Council members considering the complaint were the Hon Raynor Asher (Chair), Tim Watkin, Scott Inglis, Marie Shroff, Richard Pamatatau, Rosemary Barraclough and Reina Vaai.