Health warning labels on cigarette packages

Review from the Office of the Ombudsman | English Services

Summary

Complaint from Dimitri Soudas, Director of Communications, Office of the Prime Minister, about a report on The National concerning health warning labels on cigarette packages

I am writing with regard to your complaint December 13, 2010, and request December 29, 2010 (following an exchange of correspondence with CBC News), for a review by the Office of the Ombudsman. Your request concerns a CBC Television report December 8 that examined the issue of health warning labels on cigarette packages. Thank you for your patience on this matter.


CBC Television's The National carried a report December 8, 2010, by senior investigative correspondent Diana Swain, in which it asserted a shift in federal policy had taken place. In broad outline, the report said a federal plan to expand warning labels on cigarette packages had been “shelved” for a focus on efforts to combat contraband tobacco entering Canada. It had investigated why.

The report noted that the federal government had spent millions of dollars conducting research and preparing to “refresh” the messages on cigarette packages, with an aim to discourage smoking. CBC said it “shelved” the plan suddenly in the fall, a move by the federal health minister that surprised provincial counterparts.

CBC asserted in the four-minute segment that the reason for the shelving “seems to be a sophisticated lobby effort working behind the scenes and coordinated by tobacco companies on all kinds of topics.” It noted the hiring of former Conservative political aides to some lobbyist firms and extensive meetings in the last two years (as the plans were being readied) by those firms and other interested parties on the tobacco issue with ministers and the Prime Minister's Office.

The report carried a comment from Dr. Cynthia Callard of Physicians for a Smoke-Free Canada, saying that the shelving of the measures was another instance of the industry circumventing the health minister. It also featured Perrin Beatty, a former health minister who is now president of the Canadian Chamber of Commerce, saying his organization's aim was to discourage smoking but also to ensure “the policies are effective, that they're fair.”

The report noted that the Chamber was against increasing the size of the warnings on the packages and that it argued such measures drove people toward cheaper contraband cigarettes. It said the Chamber wanted tougher anti-contraband measures instead, something the federal government agreed to do.

The report said an effort had been made to interview the health minister, but she had declined. On the day of the report, Swain attempted again to interview her outside the House of Commons, but was told she was unavailable when Swain sent a message requesting her availability into the House through a Commons employee.

Following the report, CBC host Peter Mansbridge conducted a short on-air discussion with Swain. He noted that it was not illegal to lobby and asked Swain if anyone did “anything wrong here.” Swain said no, that lobbying was a fact of life. But she noted that records from Health Canada indicated it met with tobacco companies several times in the several months leading up to the decision to shelve the plan and “not once” with the anti- smoking lobby.

Swain noted that research had shown that it's important to change the imagery on cigarette packages to make the anti-smoking labels effective. Canada hadn't changed those images in 10 years, she said.

The complainant wrote December 13, 2010, and expressed concerns about “both the process by which the story was put together and the factual content of the story itself.” He said the story's “erroneous premise” was that the government was “in the pocket of big tobacco” and that its influence pressured the government to scrap new warning labels on packages.

The complainant, who is the director of communications for the Prime Minister's Office, said the government had not “scrapped” the warning labels (information reported elsewhere), and that CBC did not include the government's position in the story.

The complainant asserted that Swain and her producer “conveniently ignored” other evidence involving the “supposed influence” of the tobacco lobby, in particular legislation banning flavoured tobacco. He noted that the Prime Minister's Office supplied a written statement on that bill to the CBC's producer, and Swain “declined to use our statement in her story.”

Even though a portion of the statement was used in a related online story, the complainant noted that the online story said the Prime Minister's Office “declined a CBC News request for an interview” on the matter. “This is an outright lie,” the complainant wrote.

The complainant raised additional concerns about the process of newsgathering. He said a CBC producer approached a policy advisor at the Prime Minister's Office, rather than the press office, to directly inquire about meetings the advisor had held with representatives of the tobacco industry. The call was referred to the press office, which called the CBC producer on December 4. He said the producer asked for details of seven meetings the advisor had attended and didn't identify an airdate for the report, except to say it wasn't imminent. The complainant said the press office called the producer back four days later to say work was continuing on a response, then was told the report was airing that evening.

The complainant said that, by comparison, the health minister was given a clear understanding of the story's focus on cigarette package label warnings and was asked for an interview. She declined, a written statement was provided (but not used), and Swain “nevertheless flew to Ottawa and filmed herself grandstanding in the House of Commons foyer for her report.”

The complainant added that a “disturbing trend” had surfaced involving stories on national issues produced outside of Ottawa that were “consistently worse and more poorly researched.”

CBC News editor-in-chief Jennifer McGuire responded December 20, 2010. She disagreed with the assessment of the story overall. She also acknowledged the online error about the afore-mentioned PMO interview request and she apologized.

McGuire said the story's premise was not about the government being in “the pocket of big tobacco,” as the complainant asserted. Rather, she said, the story asked why government priorities had changed and asked if the answer could be found in the lobbying efforts of tobacco companies. She said the story noted those in favour and those opposed had lobbied on the issue, a practice the story said was common and legal.

She said the story noted the government had “changed priorities” and “changed direction,” that the project on cigarette packages had been “shelved” and specifics on the plan had been “quietly scrapped.”

CBC followed its initial December 8 report with one the next night, December 9. It carried comments from the federal health minister that the initial report was “simply wrong” and that she was still thinking about the label changes. McGuire noted that CBC had attempted to gain the minister's views initially. She said that once it had them, it carried them.

McGuire said CBC's journalistic policy expects a balance of differing points of view, but not some sort of “mathematical equivalency” to carry one supportive comment for each unsupportive one.

McGuire wrote that it was not relevant to complain that the report ignored the tobacco lobby's efforts to head off legislation on flavoured tobacco. The story's focus was not on the “tobacco lobby or the government's efforts to legislate tobacco products,” she said, but a narrower focus “concerning the government's plans respecting enhanced health warnings on cigarette packages.”

She said it was unreasonable to expect journalists to include all of the information available on a subject in each story.

As for the error in the online story, McGuire acknowledged that the Prime Minister's Office was not asked for an interview. She explained that the sentence was “inadvertently included in the online story as a result of a misunderstanding between those preparing the broadcast story and the editor writing the print story.” She noted CBC removed the information as soon as it was realized as inaccurate and had added a statement in a Corrections and Clarifications box online: “An earlier version of this story said the Prime Minister's Office declined a CBC News request for an interview. In fact, the office was not asked for an on-camera interview.”

On the issue of newsgathering process, McGuire said the CBC producer asked the press office for information on details concerning discussions at the seven meetings. When asked for the focus of the story, the producer emailed: “We are examining the lobby efforts of the tobacco industry.”

McGuire noted that Swain had repeatedly requested interviews with the health minister, but made one last attempt in a conventional way by requesting a discussion in the House of Commons foyer. McGuire noted it was the minister's right to decline and the CBC's right to show how it asked.

The complainant subsequently wrote the Office of the Ombudsman for a review. He noted the earlier correspondence and added some points.

He said it remained unclear, on the basis of the correspondence with McGuire, what the focus of the story was and implied that CBC was telling the health minister and the Prime Minister's Office different things.

He said the health minister's office understood the story as a follow-up to earlier reports on the health warning labels. With a stated position already on the record, there was no point to agreeing to an interview because the government 's position had not changed, he said.

He reiterated CBC chose not to include the government's position in its story. It should be noted that since the report, the federal government has served notice of new, larger warning labels to cover three-quarters of the cigarette package (the existing labels cover half of the package), a quit-smoking consumer telephone line, and a social media campaign aimed at those in their early 20s to warn of the hazards of tobacco. Legislation to change the warnings and regulations to bring them into effect are pending. CBC and other organizations covered that announcement.

Conclusion

The Office of the Ombudsman reviews all matters and treats all complainants equally, but this complaint and review are unusual and bear some comment.

The enshrined independence of CBC from government interference is one of Canada's important public policy principles. Within CBC, the guide on Journalistic Standards and Practices identifies independence as a priority: “We are independent of all lobbies and of all political and economic influence.”

Only one other time has the Prime Minister's Office sought a CBC Ombudsman's review, when the PMO communications director complained about CBC's reporting on RCMP conduct at the 1998 APEC gathering in Vancouver and the subsequent public inquiry.

Like other major news organizations in Canada, CBC has a multifaceted, mutually dependent relationship with the PMO. Among other things, those dealings involve sophisticated and concerted editorial dialogue to understand issues and communicate them in a timely manner, as well as logistical coordination for coverage of major events and prime ministerial travel. Those relationships usually settle their disputes informally, with an eye on the bigger picture and longer term, so it is curious that in such circumstances of extensive involvement this complaint was pursued to the Ombudsman's Office.

It is also relevant to expound on the context of this situation, if for no other reason than to spell out the difficulty an Ombudsman feels in reviewing a dispute of this nature.

A complaint by the government's spokesman calling for a public review of even one story, irrespective of its merit, is a gesture from a privileged position. The majority of CBC revenue comes from parliamentary appropriations leveraged principally by the governing party (even in a minority government) that establishes spending priorities. This backdrop can commingle with any such complaint and any public perception of it.

A complaint of this sort can raise other concerns: that political capital might be at stake for the institution, depending on how concerns are handled; that it has the potential to chill CBC journalistic pursuits on government policies; that it might stir partisan opposition to the public broadcaster; and that it could generate skepticism of the government's oft-repeated support for a free press.

Under such circumstances, some could argue that the Prime Minister's Office has such leverage that it ought not to have standing to gain Ombudsman's reviews. I have considered and rejected that view. But at the very least, it would be fallacious and naïve to suggest this complaint is no different than any other complaint, or that the complainant is like any other citizen in his capability to spur a review of the performance of the public broadcaster's journalism.

As a public institution, with published Journalistic Standards and Practices, and with the only full-time ombudsmen in Canadian media, CBC holds itself to a journalism standard and scrutiny unique in this country. In part to assess its commitment to service and value for money, and in part because its transparency permits it, other media report on CBC activities as they would not of themselves.

Suffice it to say that, in this context, my first conclusion is that the dispute would have been more optimally settled in some other forum.

That being said, CBC's Journalistic Standards and Practices intersect in several ways with elements of the complaint.

One of the core principles of the standards and practices policy is the requirement of fairness. “In our information gathering and reporting, we treat individuals and organizations with openness and respect,” the guidelines say. “We are mindful of their rights. We treat them even-handedly.”

There are specific approaches to controversial issues: “We ensure that divergent views are reflected respectfully, taking into account their relevance to the debate and how widely held these views are. We also ensure that they are represented over a reasonable period of time.”

Investigative journalism is dealt with extensively in the policy, but two passages apply particularly.

First, the policy states that an investigative report is not broadcast “until we have ensured that the facts and evidence support the conclusions and judgments.”

Second, the policy states “to achieve fairness, we diligently attempt to present the point of view of the person or institution being investigated.” It adds: “When a person considered necessary to a story refuses to be interviewed or provide comment, in fairness to all parties, we advise the audience of the refusal. When appropriate, we also provide the reasons given.”

There are two basic elements to the complaint: on process and on content.

On the matter of newsgathering process, I do not accept the complainant's assertion that CBC provided insufficient information about the story it was pursuing or the implied assertion that it was telling different parties different things. It communicated its general intentions to an advisor in the Prime Minister's Office who had been in the relevant meetings about which CBC was attempting to learn more. When he transferred responsibility to the press office, that office had enough information and ongoing contact to adequately understand the nature of the CBC story. There was no breach of CBC policy in how it represented its pursuit.

(Parenthetically, it might be government policy to refer media queries to press offices, but that should not mean that news organizations should not directly approach public servants and aides.)

An element of the complaint involved the way in which the government position was presented. CBC quoted the Manitoba health minister saying his counterparts were surprised at a federal-provincial meeting by the federal minister saying that Ottawa was not proceeding with earlier plans. But it did not include anything from the federal government in the report to explain its decision. Instead, it said that the minister was unavailable.

The minister's department had provided two statements to CBC News during its investigation. On December 1 the department said it continued to examine the renewal of health warning messages but “is not ready to move forward at this time.” A second statement December 7 said the government was exploring how to use social media tools to complement existing strategies.

In the course of this review, CBC News noted the News Network and online reports carried the minister's perspective. In some cases it can be acceptable for varying perspectives to find their way into the larger body of work. But in this instance, I concluded the absence of such a significant perspective on the flagship national newscast couldn't be offset by its presence amid other channels.

It was not necessary for the minister to appear on camera. Her written statements could have been paraphrased and presented, as they were online and on the News Network. There was new information in those statements, as evidenced weeks later when the federal initiative moved forward with an announcement on anti-smoking measures to include expanded label warnings, toll-free access to smoking cessation information, and a social media campaign aimed at young people. (Several legislative and regulatory stages remain before they can take effect, but the minister indicated the next step would come early in 2011.)

The CBC report drew two principal conclusions: that the initiative to toughen anti- smoking warnings on cigarette packages had been “shelved,” and that the cause “seems” to have been meetings with the tobacco lobby. Reviewing this dispute involves semantic interpretations.

CBC arrived at the first conclusion on the basis of a provincial minister saying the federal health minister said she was not proceeding with plans as expected. The word “shelved” has various meanings. In some contexts it means “delayed” or “deferred” and in others it means “cancelled” or “permanently withheld.”

In this instance, the government had signaled its intention to proceed some time earlier and now wasn't meeting its expected deadline. This was a matter earlier reported widely, so it was fair and within CBC standards to describe the initiative as “shelved.” However, the report might have benefited from clarity on whether CBC meant the initiative was being killed or simply revamped for eventual release.

Its other conclusion about the cause of the shelving also comes down to a single word: “seems.” The National's report noted that provincial ministers had asked the federal minister why the initiative was not proceeding. The report said: “The answer seems to be a sophisticated lobby effort working behind the scenes and coordinated by the tobacco companies.”

The word “seems” can be used to describe in a more cautious, guarded or polite way the assertion of a fact, or it can be used to describe what appears to be. In this instance, it was a hinge word to help suggest a cause-and-effect relationship between the meetings and the change in plans for the anti-smoking initiative. Lobbying “seems” to have been the answer why the government shelved the plan, the report concluded.

CBC supported its conclusions with several documented facts. It gathered and analyzed extensive lobbying records in the most recent two years that identified an increase in lobbying following the government's initial announcement to strengthen the package warnings. It reviewed parliamentary committee records of “stakeholder meetings” involving Health Canada. It identified a pattern of meetings with one party to a dispute and no meetings with the other party to it. It also included in correspondence with this Office hundreds of pages of media reports on the matter. Its research was exhaustive.

Records show almost all of the meetings discussed tobacco contraband. But one meeting with the Canadian Chamber of Commerce concerned tobacco labeling. On the basis of that meeting and subsequent research, CBC concluded that the Chamber was raising concerns that an expanded warning label might infringe upon intellectual property rights, that reducing the size of the label effectively undermined the tobacco companies' legal rights to properly market themselves. The Chamber and others were pressing for wider anti-contraband measures, too.

The CBC concluded that these two lobbying thrusts (about intellectual property and for stronger anti-contraband measures) were combining to derail the plans for the anti- smoking strategy and moving the government to a new priority of anti-contraband measures. It did not gain information to substantiate that conclusion. It drew its conclusion in the absence of other evidence.

The online story asserted the plans were shelved “after” meetings, where the report on The National asserted the shelving “seems” to have been due to the meetings. The online phrasing was supportable: one thing followed another. But The National's conclusion of a causal relationship, in which the lobbying seemed to be the reason for the shelving, was insufficiently supported to meet CBC's Journalistic Standards and Practices that call for facts and evidence to arrive at conclusions. As for the error in the online story: CBC management apologized and corrected it as soon as it became apparent, an approach that satisfied policy.

Kirk LaPointe
CBC Ombudsman

Links

The original story: http://www.cbc.ca/thenational/indepthanalysis/story/2010/12/10/national-tobaccolabels.html
The online story: http://www.cbc.ca/canada/story/2010/12/08/tobacco-conservatives-lobbying008.html
The minister's response the next day: http://www.cbc.ca/canada/story/2010/12/09/aglukkaq-warning-labels009.html
The government announcement Dec. 30: http://www.cbc.ca/politics/story/2010/12/30/health-tobacco-warnings.html