00583-20 Giblin-Jowett v express.co.uk

Decision: Breach - sanction: publication of correction

Decision of the Complaints Committee - 00583-20 Giblin-Jowett v express.co.uk

Summary of Complaint

1. Hellen Giblin-Jowett complained to the Independent Press Standards Organisation that express.co.uk breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “Ridiculous EU laws Britain has been forced to accept from Brussels – EIGHT of the worst”, published on 31 January 2020.

2. The article reported on “eight examples of EU laws or rules” that the UK was “forced” to adopt by the EU and “had to abide by”. It said that the first “law” was that “bananas cannot be too bendy” and that in 2009 the EU introduced “strict requirements” that bananas should be “free from malformation or abnormal curvature of the fingers”. It went on to specify the three EU classifications of banana ”with premium ‘extra’ class bananas having to be ‘free from defects’” and “Class one and two bananas were given more leeway with the former allowed to have ‘slight defects of shape’ and the latter bananas are allowed to have ‘defects of shape’”. It said that the second rule stated that it was “Illegal to make Stilton in the village of Stilton”. The article said that the third rule was that “water does not hydrate you” and stated that “the EU banned drink manufacturers from claiming that water can prevent dehydration”. A seventh rule included in the article was said to be that the EU had banned “inches and pounds… as measurements” and went on to explain that “Traders are allowed to display weights and prices in both imperial and metric but not in imperial only.” Finally, the eighth rule was reported to state that the “EU ruled prunes do not have a laxative effect and as such, producers cannot say that they do.” Under this subheading the article included a quote taken from an EU Panel which said: “The evidence provided is insufficient to establish a cause and effect relationship between the consumption of dried plums of ‘prune’ cultivars (Prunus domestica L.) and maintenance of normal bowel function.”

3. The complainant said that the article was inaccurate in breach of Clause 1 for multiple reasons. Firstly, she said the headline was misleading as the UK had not been “forced to accept” any of the alleged rules, as the UK was part of the voting process to establish the rules. She also said that it was inaccurate to describe such rules as “laws” as they were a mixture of mandatory EU regulations, and EU directives, which were implemented into UK law by the UK itself. She also said that it was misleading to describe the rules as “ridiculous” in the headline, as the newspaper had inaccurately reported them.

4. The complainant said that the article had inaccurately portrayed the EU’s position on the bendiness of bananas. Firstly, it was inaccurate that the EU had introduced stricter requirements on the shape of bananas in 2009. She said that the relevant EU regulation on bananas was 1333/2011, which stated that unripened, green bananas after preparation and packaging "In all classes, subject to the special provisions for each class and the tolerances allowed, the bananas must be: free from malformation or abnormal curvature of the fingers". She noted that the regulation made clear that whilst “Extra” class bananas, the highest quality, may not have defects of shape, there are special provisions and tolerances for Class I and Class II bananas, which may have slight defects of shape or defects of shape respectively. The complainant said that it was therefore misleading to state that bananas cannot be too bendy, as only the Extra class bananas were subject to this provision.

5. The complainant also said that it was inaccurate in breach of Clause 1 for the article to report that the EU had “forced” the UK to accept a law that made it illegal to make Stilton cheese in Stilton. She said that firstly this had been a British law prior to the EU’s ruling on it, and she provided the relevant judgment from 1996. It was therefore misleading to report that the UK had been “forced” to accept this by the EU. Secondly, she noted that it was the Member States who applied to the EU for the protected designation of origin, meaning that the UK had asked the EU to protect the designation of Stilton, not that the EU had forced to UK to accept it. Finally, she said that the article had been inaccurate, as it was not “illegal to make Stilton in the village of Stilton”, but that it was illegal to sell such cheese as “Stilton cheese” if it had been made there.

6. The complainant also said it was inaccurate for the article to report that the EU had forced the UK to accept a law which stated that water does not hydrate you. She said that the EU finding on this topic was that water cannot be said to reverse dehydration caused by disease. She referred to Regulation 1924/2006 Article 14, which stated that manufacturers cannot claim their products reduce the risk of disease.

7. The complainant said that it was inaccurate to report that the EU had banned the UK from using imperial measurements. Whilst she accepted that goods are legally required to be displayed in metric units by the EU, she said that countries were permitted to additionally list their own measures. Furthermore, metrication of the UK had been introduced as official government policy in 1965, eight years prior to the UK joining the ECC.

8. Finally, the complainant said that the EU had not said that prunes were not a laxative. She said there had been an EU Panel, which the article had referred to, which had said that prunes could not be sold with the claim that they were a laxative, however this was because there had been insufficient evidence submitted to the particular Panel to make such a finding, as only two studies had been submitted, and one was found not to be relevant to the particular claim.

9. The publication accepted that it had inaccurately reported that in 2009, the EU introduced stricter rules on the quality of bananas. In fact, bananas, unlike other items of fresh produce, had not been mentioned in the new 2009 restrictions that had been referred to in the article. Therefore a regulation that had been introduced in 1995 was still in place, which had then been updated by the 2011 regulation. It therefore offered to amend the text to the following:

“In 2009, the European Union introduced strict restrictions on the quality of other fruits and vegetables sold within the EU, however bananas were not included in these new restrictions. 

Under the 2011 regulations, bananas should be “free from malformation or abnormal curvature of the fingers.”

It also offered to print the following as a footnote:

“A previous version of this article reported that strict restrictions were introduced in 2009 by the European Union on the quality of bananas. In fact, bananas were not included in these new restrictions. We are happy to clarify this.”

10. The publication did not accept any other inaccuracies within the article. It said that the minimum requirements within the 2011 regulation clearly stated that bananas must be free from “abnormal curvature” and whilst Class II bananas were allowed “defects of shape” this did not refer to curvature specifically. It also noted that the minimum requirements applied to “all classes”.

11. The publication said that it was not the UK that had asked the EU to designate Stilton as having a protected designation of origin, but The Stilton Cheese Makers’ Association, and provided the application for this registration, which was made in 1994. It also noted that the High Court ruling which the complainant had referred to, which directed that a trade mark should be registered in respect of Stilton cheese made only within Leicestershire, Derbyshire or Nottinghamshire, was given in 1996. On this basis, it said that as the protection afforded by EU law happened first, there was no possible breach of Clause 1.

12. The publication provided the decision of an EU Panel on whether water could be advertised with a disease risk reduction claim, under Article 14 of Regulation (EC) No 1924/2006, where dehydration was the “disease”. The disease risk reduction claim that the EU Panel was testing was phrased as “regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance”. The Panel found that the claim did not comply with the requirements for a disease risk reduction claim under Article 14, where dehydration was the “disease” and dehydration was classed as “water loss in tissues” or “reduced water content in tissues”. The publication said that in light of these findings, reporting that the EU ruled that “water does not hydrate you” was not a breach of Clause 1.

13. The publication noted that the complainant had accepted that the EU requires all goods to be displayed in metric measures, and that the article reported that “Traders are allowed to display weights and prices in both imperial and metric but not in imperial only”. On this basis, it said there was no breach of Clause 1.

14. Finally, the publication provided the results of an EU Panel on whether prunes could be sold as having a laxative effect. This said that “The Panel concludes that the evidence provided is insufficient to establish a cause and effect relationship between the consumption of dried plums of ‘prune’ cultivars (Prunus domestica L.) and maintenance of normal bowel function.” This quote was repeated in the article. It also noted that the Panel had considered evidence from one study, and had said that it “did not find any significant difference between the two treatment groups or between different time-points within each group and that the other human intervention study showed some effect on faecal bulk but not on stool frequency or consistency”. The publication said that the result of the Panel was that prunes could not be advertised as a laxative. On this basis, it said it had been accurate under Clause 1.

Relevant Code Provisions

15. Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

Findings of the Committee

16. In the context of the article, the headline claim that the UK was “forced” to follow the listed rules was not significantly misleading where the article made clear that it was a reference to rules introduced by the EU, which the UK was part of and subject to. The reference to “laws” in the headline was also not significantly misleading: the first paragraph of the article had made clear that these were “EU laws or rules” and the article set out the basis for each of them. Furthermore, the newspaper was entitled to express the opinion that the rules set out were “ridiculous”. This was clearly an opinion, and not a statement of fact. There was no breach of Clause 1 in relation to the headline.

17. The article had inaccurately reported that the EU had introduced stricter requirements on the shape of bananas in 2009. In fact, the EU regulations relating to bananas had come into force in 1995, and had then been updated by the 2011 regulation. However, in the context of the article the incorrect date for the regulation was not significantly misleading, and did not require a correction under Clause 1. The Committee, nevertheless, welcomed the clarification offered by the publication.

18. The complainant had expressed concern that the article had claimed that “bananas cannot be too bendy”; she had said that only the top two Classes of bananas were subject to rules regarding their defect of shape. However, this information was clearly included within the article, which cited the relevant provisions from the 2011 regulation. As the legal position was explained within the article, this did not represent a failure to take care in breach of Clause 1(i) or require correction under Clause 1(ii).

19. The Stilton Cheese Makers’ Association, a British trade organisation, had applied to the EU for protected designation of Stilton cheese in 1994. It was granted by the EU in 1996, and in the same year, the English High Court also directed that a trademark be registered for Stilton cheese which covered cheese made only within the same regions. The Committee also noted that the 1992 EU press release on the protected designations of origin of food products, supplied by the publication, had stated that the protected designation applications had been “received from the Member States”. In these circumstances, and where in the same year the English High Court had ordered that a trademark be registered to give similar protection, it was significantly misleading to report that the UK had been “forced” to accept a law relating to the production of Stilton cheeseby the EU, in breach of Clause 1(i). Where the article had reported on rules which the UK had to follow due to its membership within the EU, this was a significant inaccuracy requiring correction under Clause 1(ii).

20. The article had also stated that Stilton cheese cannot be made in the village of Stilton due to EU rules. However, this did not represent a significant inaccuracy under the terms of Clause 1, given that this type of cheese, if made within Stilton, cannot be sold as “Stilton” due to the rules. This did not represent a failure to take care over the accuracy of the article in breach of Clause 1.

21. An EU Panel had found that the claim “regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance” did not comply with the requirements for a disease risk reduction claim pursuant to Article 14 of Regulation (EC) No 1924/2006. However, the Panel had not found that there was “no evidence to prove drinking water prevents dehydration”, as reported by the newspaper. On this basis, the publication had failed to take care to report accurate information under Clause 1(i). Where the article had reported this as a fact, in an article that focused on rulings and rules made by the EU, this was a significant inaccuracy requiring correction under Clause 1(ii).

22. In 1965, the UK officially adopted metrication. Whilst the UK had adopted this as policy previously, the EU’s 2010 ban made it illegal to display units solely as an imperial figure. While the subheading said that inches and pounds were “banned as measurements”, the article had made clear that they could be used alongside  metric measurements. Where the EU introduced the ban on solely imperial measurements, this point did not represent a significant inaccuracy in the article. There was no breach of Clause 1 on this point.

23. An EU Panel had concluded, after viewing a single study that had been submitted, that there was not enough evidence to sell prunes with the claim that they had a laxative effect. The article had included a quote from this Panel explaining that “The evidence provided is insufficient to establish a cause and effect relationship between the consumption of dried plums of ‘prune’ cultivars (Prunus domestica L.) and maintenance of normal bowel function.” Where the EU’s position was clearly visible within the article, and the complainant accepted that there had been insufficient evidence submitted to rule that prunes were a laxative, there was no breach of Clause 1 on this point.

24. The Committee had established the existence of two significant inaccuracies requiring correction under the Code. The newspaper had not offered to correct these points.  There was therefore a breach of Clause 1(ii).

Conclusions

25. The complaint was upheld in part.

Remedial Action Required

26. Having upheld a breach of Clause 1, the Committee considered what remedial action should be required. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or an adjudication, the terms and placement of which is determined by IPSO.

27. The Committee considered that the publication did not take the necessary care to report on the rules relating to dehydration and Stilton cheese. The Committee considered that the appropriate remedy was the publication of a correction to put the correct position on record.

28. The Committee then considered the placement of the correction. It should appear as a footnote to the article. It should state that it has been published following an upheld ruling by the Independent Press Standards Organisation. The full wording and position should be agreed with IPSO in advance.

 

Date complaint received: 18/05/2020

Date complaint concluded by IPSO: 30/06/2020

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