CFRB-AM re an episode of the Health Show

Ontario regional panel
(CBSC Decision 04/05-1171)
M. Ziniak (Vice-Chair), B. Bodnarchuk, R. Cohen (ad hoc), M. Hogarth (ad hoc), M. Oldfield, C. Reyes

THE FACTS

Health Show, hosted by Christina Cherneskey, airs on CFRB (NewsTalk 1010, Toronto) on Sundays from 2:00 to 3:00 pm. On March 6, 2005, the topic of the program was retirement residences and Cherneskey had as her guests Karen Hen, Assistant Executive Director, Marketing and Admissions, at Cedarbrook Lodge and Stephanie Regent, Executive Director at Bradgate Arms. Both facilities belong to an umbrella organization called Retirement Residences Group, although that link was not expressly made in any statement by the broadcaster or the show’s host; it only became inferentially evident during the course of the show. While a full textual appreciation depends on a reading of the entire transcript of the episode, that text is, practically speaking, too long to be included at this place in the decision. A summary of the most pertinent components of the show follows here; the full transcript of the episode is provided in Appendix A.

The program of March 6 began with the following introduction:

This is the Health Show on NewsTalk 1010 CFRB in Toronto brought to you by Retirement Residence [sic] Group.

The host, Christina Cherneskey, then defined the subject matter of the episode in the following terms:

You know, we don’t like to talk about it, but it always comes up, particularly those families with aging parents and the discussion always what’s the next step going to be with mom and/or dad or mom and dad and this is a great place to talk about the issue of retirement residences.

She then introduced her “two very special guests” and specifically mentioned their association with the two residences noted above (although not with the umbrella organization that had been designated as the program sponsor). They delved into various subjects, such as who communicates with whom about the delicate issue of looking for a home for elderly parents, introduction to the idea, trial residency “testing” and so on. The host then reminded the audience of the subject of the day, retirement residences, and said:

Today on the Health Show, we’re focussing on the issue of retirement residences. And with two very, very qualified people who can help us out. I know there’s always questions [sic] about this, so, please, uh, phone in today. We’re not talking about a particular ailment, but we’re talking about something that is inevitable. And that is the aging process. Uh, Karen Hen is Assistant Executive Director, Marketing and Admissions at Cedarbrook Lodge. Stephanie Regent, Executive Director at Bradgate Arms. Let’s find out about you two now. And, not really about you two, but Cedarbrook and Bradgate. Let’s start with Bradgate.

The guests described their respective residences and one added that “both Cedarbrook and Bradgate and the other homes that are part of our chain, you can have anywhere from, uh, minimal amount of assistance all the way to full care and even palliative care.” This, the first mention of the corporate chain in the course of the host-guests dialogue, was followed with the information that it consisted of about 213 homes but the chain itself remained anonymous, in the sense that it was neither named nor identified, at this stage.

The dialogue reverted to the different staff functions at the residences and locations, with one of the guests pointing out that “we try very much to be, um, very comprehensive across the company.” In cutting to a commercial break, the broadcaster-produced bumper said:

Medical opinions and recommendations are solely those of the commentator and not of CFRB or Standard Radio Incorporated. Please consult your physician for further advice.

Coming out of the break, the host said “you know, but there, there seems to be such a care and concern in your approach to what we’re doing with, with elderly Canadians in this particular case.” One of the guests replied,

Thank you. Yes. We actually, we were saying just before we came in here that what would be, um something that makes Retirement Residences Group stand out, um, as compared to other companies and it’s not so much the service that we deliver, it’s how we deliver it to people. ’Cause the staff genuinely really care about what they’re doing.

They then talked about how their company deals with its staff and took their first call, on the subject of the “basic differences between nursing home care and retirement residences.” The Executive Director of Bradgate Arms provided her explanation of differences between the two, focussing the explanation of retirement homes on the example of the Retirement Residences Group.

Regent: So, the nice thing about a retirement residence is you can have a, a look at these places, you can have a tour. Um, often, you know, you come into one of our homes and you can stay for lunch, stay for dinner.

Cherneskey: Yeah?

Regent: And, um, you could then go on the website which is www.retirementresidences.com and then you can –

Cherneskey: Which is a great site, by the way everybody. I’m just navigating it right now.

Regent: Yeah. You could have a virtual tour. Some people feel more comfortable doing that from their own home than actually going out to the homes.

In concluding the dialogue with that caller, the Bradgate Arms Executive Director said:

And, you know, that’s a comfortable setting for you and, you know, anyone; as a registered nurse I can say that, you know, at the end of, of, of your life, when you have a lot of extra care, you want to be where you’re comfortable and your family can come in and they feel comfortable. And, you know, at Retirement Residences Group, we really try very hard to, not only have your, your, have your parent or your relative there and be comfortable, but the whole family.

The second caller also sought clarity on the distinction between retirement homes and nursing homes, particularly insofar as it would relate to levels of treatment for an older person in deteriorating health. The Bradgate Arms guest tried to respond by explaining what her corporate group residences would do to accommodate persons requiring an increased level of care. The caller accused the program of “trying to obfuscate the whole issue” and the host attempted to bring the discussion back on track when the caller was put on hold. The host and guests then talked further about issues related to the unhappy caller, all the while focussing more closely on the Retirement Residences Group, their management, their staff and their residences and residents.

Following a news break halfway through the show, the re-introduction was put in the following terms:

This is the Health Show on NewsTalk 1010 CFRB in Toronto, brought to you by Retirement Residences Group.

The rest of the show continued with a more pointed focus on the Retirement Residences Group, with considerable emphasis on the words “we” and “our”, as in “we belong”, “we tell”, “we put up”, “we have”, “our group”, “we’re there for you”, “our residences”, etc. At one point, when the generic interrogative statement by a third caller was “And what I have found is that most places will not take people under 65,” the reply by one of the guests was:

Well, um, I certainly can’t speak for other, um, companies, but Retirement Residences REIT and Retirement Residences Group, we, we look at it from, not so much the age, but we like to meet the potential resident. [Emphasis added.]

In the second-to-last segment of the hour-long episode, the Bradgate Arms guest made a more overt statement to listeners about the Retirement Residences Group.

[A]ctually, you know, if when you go to the website, to the retirementresidences.com, you’ll, you’ll be able to, you know, look at, compare different homes and, and some homes are more expensive than others and it does depend on the area and where you are. But that’s the nice thing about this, about Retirement Residences Group, is that we have so many different types of homes for different needs at different prices.

There was a final commercial break, followed by a bumper identical to that cited above.

Medical opinions and recommendations are solely those of the commentator and not of CFRB or Standard Radio Incorporated. Please consult your physician for further advice.

The final segment was similarly oriented, that is to say, with considerable emphasis on the Retirement Residences Group; it ended with the following statement:

This has been the Health Show on NewsTalk 1010 CFRB in Toronto brought to you by Retirement Residence [sic] Group.

A complaint first sent to the Canadian Radio-television and Telecommunications Commission (CRTC) on March 9, was forwarded to the CBSC in the normal course of events. It alleged a “‘sleight of hand’ that CFRB uses in presenting this show [the Health Show].” The complainant described that practice as follows (the full text of his letter and all other correspondence are found in Appendix B):

On [some weeks] that […] show is presented in an identical talk-show format but instead of featuring independent guests, the show features guests from organizations that have paid to be interviewed and promote their products. Effectively on those weeks the one hour Health Show is a one hour infomercial.

One such case was Sunday, March 6 where two representatives from a retirement home chain were ostensibly being interviewed as experts on options for elder-care. In fact they were paid guests promoting their privately held retirement-home company. There were three vague and non-descript disclaimers during the show that appear to have been designed in such a manner that they could just as easily have been interpreted as a type of introduction to or acknowledgement of the guests; particularly in the context of the show frequently featuring independent non-paid guests. Just listening to the callers it was quite clear to me that they had no idea that the show was an infomercial; in fact I did not even realize it until almost the end of the show.

My complaint is that CFRB, by design, has intended to mislead and deceive their listeners in an unethical and potentially dangerous way by presenting what is ostensibly a one hour infomercial as an independent and informative talk show discussing the health and wellness industries.

On July 11, not having heard from the broadcaster (which is obliged to respond within 21 days), the complainant filed his Ruling Request. On August 11, the CBSC Secretariat sent a reminder letter to CFRB, whose Vice President and General Manager responded the following day.

The Health Show is a talk-show formatted live program as you describe. This is most definitely different than a paid infomercial which are [sic] recorded and most importantly the people on those infomercials get to craft those recorded shows any way they deem fit to sell their product. In other words, they can really stretch the truth or make health statements that simply aren’t true. Plus infomercials have no other commercials in them. They only sell their product. This show has lots of other commercials just like any other hour on the station.

Our health show with Christina there is purposefully set up for Christina to be the unbiased host. The person to step out and ask questions that a listener might ask and to most definitely challenge, … both before the show in prep … and also on the air as it’s happening, any comments by guests that are simply wrong.

Do some clients pay to be on the show? Absolutely. Do we hide this fact? No, we run the disclaimers. Do we allow the clients to blatantly hawk their product? No. The purpose and intent of why we let clients buy access to this show is:

a) to talk about their industry and either sink or swim on whether they are good and are experts at what they’re talking about. (You’d be amazed at how quickly an audience can tell if someone is knowledgeable on their questions or not.)

b) to be able to tell listeners about their product.

We don’t allow them to hard sell constantly the whole hour. They definitely have to know their industry and be able to answer any question posed to them by our callers. Their answers have to be real and not ‘embellished’. Hence, Christina there to challenge on them.

All of this is no different than any number of talk shows everywhere that have someone on who is an expert at some company in some field and we call on them to give information and answers to our listeners.

For instance, having a jeweler on air to explain diamonds just before Valentine’s Day. It would virtually be impossible to find a diamond expert anywhere that didn’t work for someone. So the only difference here is that we charge experts for the right to come on our air and show that they ARE an expert or very much know their stuff. It’s identical to every car show on air anywhere. It’s always done by a car mechanic at some shop in town.

The major difference is … we make sure that their answers are correctly given and not unreasonably biased towards pitching their business. To put it another way, we go out of our way to make sure the outcome of the show is the same whether it uses no experts from a business or an expert from a business like elder-care.

The complainant filed another Ruling Request on August 15. With it, he sent a copy of his letter to CFRB. He said in part:

Why would an expert guest pay to be a guest?

Why would the disclaimers not clearly state that fact?

I have serious concerns that the practice of charging “expert” guests for their appearances, without full and clear disclosure to the listening public, is not only misleading but potentially harmful. This is particularly true in the context of a program called the Health Show, that among other things deals with serious subject matters such as elder-care, cancer and childhood diseases.

 THE DECISION

The Ontario Regional Panel examined the substantive part of the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics.

CAB Code of Ethics, Clause 6 – Full, Fair and Proper Presentation

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster. This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.

CAB Code of Ethics, Clause 14 – Advertising (Details)

(a) Broadcasters recognize that they are responsible for the acceptability of advertising material they broadcast. All commercials must conform to applicable laws and regulations.

(b) Broadcasters shall ensure that advertising material within a newscast is clearly distinguishable from the news information adjacent to it. To this end, any commercial message broadcast within a newscast should not be read by the newsreader.

(c) Broadcasters shall ensure that there is no influence by advertisers, or the perception of such influence, on the reporting of news or public affairs, which must be accurate, balanced, and objective, with fairness and integrity being the paramount considerations governing its reporting.

In dealing with the issue of broadcaster responsiveness, the Panel considered the following provisions of the CBSC Manual:

Responsibilities of Membership, p. 7

Broadcaster members which join the CBSC do so voluntarily and, by so doing, agree to:

[…]

g) co-operate fully with complainants by responding quickly and effectively to their concerns and informing them of their right to bring the matter directly to the CBSC if they are dissatisfied with that reply.

Complaint Resolution Process, p. 24

A copy of the complaint will […] be forwarded to the broadcaster with the request that the member respond to the writer of the complaint within 21 days. The Secretariat expects that the complaint will be given that priority by the broadcaster; however, should there be extenuating circumstances, such as a deluge of complaints, application should be made to the Secretariat by the broadcaster for an extension of that deadline.

The Ontario Regional Panel Adjudicators reviewed all of the correspondence and listened to a recording of the broadcast. The Panel considers that CFRB is in breach of the foregoing Code provisions although not of its responsibilities of membership in the Canadian Broadcast Standards Council.

What Is Paid or Sponsored Programming?

This is the first occasion on which the CBSC has dealt with paid or sponsored programming. Consequently, it had not previously developed any specific rules dealing with issues associated with such programming; however, certain other jurisdictions have and it is useful to see what they have mandated by way of guidance.

In Great Britain, for example, Ofcom, the regulatory equivalent of the CRTC, defines sponsored programming as follows (in Section 9 of its Broadcasting Code):

A sponsored programme […] is a programme that has had some or all of its costs met by a sponsor with a view to promoting its own or another’s name, trademark, image, activities, services, products or any other direct or indirect interest.

Costs include any part of the costs connected to the production or broadcast of the programme.

A sponsor is any public or private undertaking (other than the broadcaster or programme producer), who is sponsoring the programme or programming in question with a view to promoting their or another’s name, trademark, image, activities, services, products or any other direct or indirect interest. This meaning extends to those who are otherwise supplying or funding the programme.

These principles are of some use in the Canadian context; if anything, the British definition would cover both sponsored programming and what has come to be known as the infomercial (the “traditional” genre of product-selling on television), in the North American broadcast environment. In the light of that definition and its bifurcated application, it should first be noted that programming such as the Health Show is, as the broadcaster readily admits, sponsored; however, the broadcaster vigorously argues that it is not an infomercial. On the basis of the episode under consideration, the Panel agrees with this position. Although the Panel readily concedes that either “sponsored programming” or “infomercial” could be defined broadly enough to include both categories, it considers that the distinguishing of the two genres is beneficial.

While the Panel acknowledges that the format of the challenged show shares certain characteristics with “traditional” infomercials (principally in that the broadcast of the show is paid for in some way by the sponsoring commercial entity), its goal and style of presentation are distinctly different. First, North American infomercials are pre-recorded, most frequently for television broadcast. Second, and related to that point, there are generally no unscripted callers to such programs. Third, infomercials are designed to hawk specific products, generally goods rather than services, frequently by energetic, forceful selling techniques. Fourth, they are exclusively devoted to the products being sold. No advertising or promotion for any other goods or services, whether competitive or not, is a part of the same program.

By its nature, sponsored programming such as that under consideration here is of a very different style. A sponsored program will generally, at least in its first broadcast, be live and unscripted, although the guests may well have prepared scripted bits to ensure that their words will be efficient, subtle, beneficial and “on message”, corporately speaking. Perhaps in order to draw audience to the program, the show will frequently have callers, who dial in for advice of some kind. The sponsored program will more often be selling the expertise or services of the expert guest or the company for which he or she works. Finally, there will be no exclusivity of commercial messages. Advertising for other companies and products or services (although not directly competitive products or services) can be expected.

What Is the Concern about Paid or Sponsored Programming?

The bottom line is that potential confusion on the part of the listener (or viewer) is the concern. Just as text-heavy, story-styled full pages in newspapers are headed “[advertisement]” when they are thought to be at risk of inducing readers into believing that they are the objective news items or features prepared by the publication’s staff, broadcast equivalents that could be potentially confusing to radio or television audiences merit their own style of confusion avoidance. Regulators in both Canada and the United States have treated analogous, but not identical, situations in ways helpful to the sponsored programming issue.

In Canada, for example, dealing with another aspect of the issue that is of interest to the Panel in the matter at hand, namely, the state of mind of the recipient of the program, the CRTC has said [in Public Notice CRTC 1994-139 (7 November 1994) Amendment to the Television Broadcasting Regulations, 1987 to permit, by condition of licence, the airing of “Infomercials” during the broadcast day] that infomercials must avoid causing confusion on the part of the viewer. While no other part of that Public Notice is, in the view of the Panel, relevant to the matter at hand, the Panel considers that the principle that such programming must be so presented as to leave the audience with a clear understanding of the link between the payer and the content is instructive.

7. In order to avoid any confusion on the part of the viewer, infomercials must be identified as follows:

a) each production broadcast must be preceded and concluded with a clear and prominent written and oral announcement that the programming constitutes paid commercial programming; and

b) a clear and prominent written announcement must also be made prior to each ordering opportunity indicating that the programming the viewer is watching constitutes paid commercial programming.

In an aspect of an otherwise unrelated policy issue, the American Federal Communications Commission (FCC) states, in its “FCC Consumer Fact Sheet on ‘Payola Rules’”:

The Communications Act and the FCC’s rules require that:

When a broadcast licensee has received or been promised payment for the airing of program material, then, at the time of the airing, the station must disclose that fact and identify who paid for or promised to pay for the material.

In other words, the issue in the foregoing related areas is transparency and the avoidance of confusion. As all of the foregoing analogous Canadian, British and American rules anticipate, there must be disclosure of the fact that there is a link between some sponsor and the services or goods being promoted during the program. The Panel wishes to emphasize that there is nothing inherently wrong or problematic in providing expertise to audiences. Such information may indeed be extremely helpful and informative. The problem results only from the potentially incorrect audience expectation that an expert on a subject who is presented by a broadcaster has been chosen by the broadcaster on the basis of his or her expertise and not on the basis of having paid for the opportunity to access audience members listening in good faith and innocence.

The Solution

It is not the intention of the Panel to attempt to write a set of specific rules that must apply to the broadcast of sponsored programming. The Panel considers that it is sufficient to lay down the principle that the broadcaster airing sponsored or paid programming must advise its audience of that sponsorship clearly, transparently and unequivocally. The disclosure must also be made at the beginning and end of the program and sufficiently frequently during it that persons tuning in after the start of the program will be able to listen to the broadcast on an informed basis, in terms of the relationship between the sponsor and the program content.

The Application of the Foregoing Principles to the Matter at Hand

To the extent that clear, transparent and unequivocal disclosure is the required standard, the Panel considers that it has not been met in the broadcast under consideration. In the first place, although the following statement was made three times, once at the start of the show, again in the middle and a last time at its conclusion, the essential link was not drawn between the sponsor and the guests.

This is the Health Show on NewsTalk 1010 CFRB in Toronto brought to you by Retirement Residence [sic] Group.

The guests were then introduced as Christina Cherneskey’s “two very special guests”, words which did not in any way hint at their association with Retirement Residences Group. If anything, the words suggest that their participation on the program resulted from an effort by the broadcaster to find independent experts when the reality is that the individuals had been pre-selected by the sponsor. Although the host stated that they were from Cedarbrook Lodge and Bradgate Arms, there was no link drawn between the program sponsor and the guests on the show. At a point in the first segment, the guests averred to the fact that their homes and others “are a part of our chain,” but, even at this point, there was no connection made between the program sponsor and the chain that was the employer of the guests on the show. It was not until the second segment that one of the guests finally made any connection between themselves and Retirement Residences Group by speaking more freely about the Retirement Residences Group.

The point is that the language was soft-pedalled and the host appeared to the Panel to avoid connecting the sponsorship with the guests, when that would have been the material issue for members of the audience. As the complainant observed, “There were three vague and non-descript disclaimers during the show that appear to have been designed in such a manner that they could just as easily have been interpreted as a type of introduction to or acknowledgement of the guests; particularly in the context of the show frequently featuring independent non-paid guests. [Emphasis added; the Panel also notes that the point is, from its perspective, more likely ‘non-paying’ guests.]” In some respects, the burden on the broadcaster to provide more and clearer information is greater in circumstances where audiences may be used to programs where the guests are obviously independent and without financial interest in the episode being aired. The complainant provided just such an example in the case of a doctor from Mount Sinai Hospital five weeks before, who was speaking of the issue of pain management. Indeed, the obligation may be still greater when the station broadcasting such sponsored programming is a news and talk station since that broadcast format consists primarily of spoken word. While all stations have the obligation to provide a clear, transparent and unequivocal disclaimer, listeners to a news and talk station could more easily confuse paid or sponsored content with regular news and information programming.

CAB Code of Ethics provides in Clause 6, broadcasters must provide a “full, fair and proper presentation of news, opinion, comment and editorial” in the context of public affairs, call-in, interview and magazine format programming. It is the full and the fair that are missing in the present instance. Moreover, the vagueness of the “disclaimer” presents a problem in terms of the required distinction between advertising content and news or public affairs, as anticipated by Clause 14(b) and in terms of the perception of influence by advertisers “on the reporting of news or public affairs, which must be accurate, balanced, and objective, with fairness and integrity being the paramount considerations governing its reporting. [Emphasis added.]” Much of the discussion in the second half of the one-hour show lost any element of disinterested, detached, independent perspective, focussed as it came to be on the Retirement Residences Group solutions to all issues.

It is the view of the Panel that the broadcast of the episode of the Health Show without a clear, transparent and unequivocal disclosure of the sponsorship of the Retirement Residences Group and its specific relationship to the guests constituted a breach of Clauses 6 and 14 of the CAB Code of Ethics.

Broadcaster Responsiveness

In all CBSC decisions, the Council’s Panels assess the broadcaster’s responsiveness to the complainant. As CBSC decisions customarily indicate, the broadcaster need not agree with the complainant but it is expected that its representatives charged with replying to complaints will address the complainant’s concerns in a thorough and respectful manner. It is also a part of the broadcaster’s membership obligation that the response must be timely. In this case, although the broadcaster only received the complaint from the CBSC on June 17, it took nearly two months from that date and two reminders from the CBSC before CFRB sent its reply. That being said, the Vice President and General Manager sent a fulsome and focussed response. The Panel trusts that timeliness will be taken into account by the broadcaster in the management of any future complaints. Subject to that caveat, the Panel considers that CFRB has met its CBSC membership responsibility of responsiveness on this occasion.

ANNOUNCEMENT OF THE DECISION

CFRB is required to: 1) announce the decision, in the following terms, once during peak listening hours within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which the Health Show was broadcast; 2) within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CFRB.

The Canadian Broadcast Standards Council has found that CFRB breached provisions of the Canadian Association of Broadcasters’ Code of Ethics in its broadcast of an episode of the Health Show on March 6, 2005. That episode of the program was a paid or sponsored show but CFRB did not clearly, transparently and unequivocally disclose that fact and the relationship between the sponsorship and the guests on the program. By failing to do so, it did not fully and fairly provide information to audiences on a public affairs program, contrary to the provisions of Clauses 6 and 14 of the CAB Code of Ethics.

This decision is a public document upon its release by the Canadian Broadcast Standards Council.