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ASA Adjudication on Save the Badger

Save the Badger

Secret World Wildlife Rescue
New Road
Highbridge
Somerset
TA9 3PZ

Date:

22 December 2010

Media:

Regional press

Sector:

Non-commercial

Number of complaints:

2

Complaint Ref:

128892

Background

The matter of badger culling in Wales has been the subject of legal action. In December 2009 the Badger Trust commenced proceedings for a judicial review of the decision of the Minister for Rural Affairs in Wales to make the Tuberculosis (TB) Eradication (Wales) Order 2009, which came into force in October 2009 and provided authority for Welsh ministers to carry out a non-selective cull throughout Wales.  On 16 April 2010 the legality of the Order was upheld. However, the Badger Trust appealed and on 13 July the Court of Appeal, following a concession made by Welsh Ministers at the appeal hearing on 30 June, granted the appeal and quashed the decision. The conclusion was that the evidence could not be used as the basis for making an order for the whole of Wales, because it was related only to the effectiveness of a badger cull in eradicating TB in North Pembrokeshire and the incidence of bovine TB in Wales was very uneven.  The evidence, without further consideration, also did not meet the requirement for a "significant" reduction in TB in cattle in the relevant area.

Ad

Two regional press ads, for a campaign group:

a. the first included an image of badgers and was headlined “A doting mother and cubs … oblivious that all of them are about to die in just a few weeks time!”. Text below stated “The Welsh Assembly is about to begin a five year plan to slaughter badgers in Pembrokeshire and Ceredigion - yes, exterminate a native breeding species! Lured with peanuts and trapped in cages until the ‘executioner’ finally arrives with a gun. Young cubs will starve underground, and hundreds of badgers will lose their lives in a ‘pilot scheme’ with no scientific justification. Yet, a vaccination for badgers is now available and currently being trialled. We say please, please, let’s vaccinate, not exterminate! … ”;

b. the second was headlined “THE BIG QUESTION?”. Text below stated “A powerful body of government funded science (costing over £53 million), tells us that culling badgers can have little impact on TB in cattle - Quote: ‘Badger Culling is unlikely to contribute to the control of Cattle TB in Britain’. By contrast, introducing the Randomised Badger Culling Trial’s recommended cattle controls (instead of killing badgers), would have a far more positive impact. At the moment, farms on the edge of the proposed badger cull will be at an increased risk of TB infection. But, has the Welsh Assembly offered increased compensation in the event of a TB breakdown to such farmers during the 5 years of the trial and beyond? And remember, even if there is a slight reduction in cattle TB outbreaks, no one will know if this is due to badger culling or the new increased cattle controls. So how can the results of this badger culling pilot be taken forward in any credible way? Will badgers be needlessly killed across Wales? … Killing badgers does not work! … ”.

Issue

1. Farmers' Union of Wales (FUW) and a member of the public challenged whether the claim "Young cubs will starve underground ... " in ad (a) was misleading and could be substantiated, because they believed a protocol was likely to be followed that prohibited culling during the closed season.

FUW also challenged whether:

2. the claim "The Welsh Assembly is about to begin a five year plan to slaughter badgers in Pembrokeshire and Ceredigion - yes, exterminate a native breeding species!" in ad (a) was misleading, because it implied it would lead to the extinction of badgers, whereas they believed badger numbers would be reduced rather than the population being eliminated.

3. the claim " ... hundreds of badgers will lose their lives in a pilot scheme with no scientific justification" in ad (a) was misleading and could be substantiated, because they believed there was scientific agreement about the action.

4. the claim " ... Killing badgers does not work! ... " in ad (b) was misleading and could be substantiated, because they believed scientific evidence existed to the contrary.

CAP Code (Edition 11)

Response

Save the Badger (STB) said the ads were placed to promote general awareness of the badger cull that was about to take place, at the time the ad appeared, in a designated area around North Pembrokeshire as part of a pilot to be rolled out to other parts of Wales in the future. They said the ads were published having considered and analysed all the relevant evidence. They were intended to make farmers and landowners aware of the possible repercussions for them, in terms of the undisputed potential for an increase of TB on land adjoining the proposed cull. STB said the proposed cull was based on the model of the Randomised Badger Culling Trial (RBCT), which was commissioned by Defra (Department for the Environment, Food and Rural Affairs) and was conducted in England over 10 years. It was designed to establish whether culling badgers could actually reduce the incidence of bovine TB.

They said the Independent Scientific Group on Cattle TB (ISG), which conducted the RBCT, concluded in their final report in 2007 that culling was unlikely to contribute usefully to the control of cattle TB; they recommended TB control efforts should therefore be focused on methods other than badger culling. The RBCT showed that cattle TB benefits seen within the area of the cull itself were offset by increases in TB in the surrounding areas due to perturbation, where badgers moved more widely to vacated setts and contacted more cattle herds as a consequence of the culling process. They said a 2008 report related to the RBCT showed the benefits continued in the period after the culling stopped but the negative effects of perturbation did not. The reported period of net benefit was "more than one year after culling was discontinued", however, the 2008 report stated that although the RBCT was a relatively well executed cull, the benefits, which amounted to a 9 per cent average reduction in CHB (cattle herd breakdowns), were low.

1. STB said there was no legally binding closed season for badgers, however there were non-binding assurances that culling would be suspended from February to April, in the hope of reducing the likelihood of orphaning dependent badger cubs underground. They said the dates were chosen on the basis that most cubs were likely to be born around February. However, the closed season was unlikely to be effective and cubs would still be orphaned underground or would die above ground while in their infancy. They said a Welsh Assembly Government information sheet confirmed contractors would not check traps to see whether they had caught a lactating female before culling the animal; it was inevitable that lactating female badgers would be culled, thereby leaving orphaned cubs.

STB said badger cubs were dependent on their mothers for survival for up to six months and therefore even with a closed period there would still be orphaned cubs. They said there was also variation in the month in which badger cubs were born, due to delayed implantation in the sows, and even when mothers brought the cubs above ground, from 10-to 12 weeks, they could easily be captured in cage traps; they said movement was not coordinated for seven to eight weeks and weaning might not begin until 16 weeks, after which it might take a further three weeks before the cubs weaned entirely. They said all of those factors demonstrated that if the cull had started in May 2010, as the Welsh Assembly Government had planned, cubs would be unable to get to the surface if the mother had been shot or would have been culled if they had reached the surface; otherwise they would have starved after leaving the sett if they were not rescued. STB submitted an abstract related to an article about the welfare of European badgers in a closed season and said the evidence supported the claim "Young cubs will starve underground ... ".

2. STB said the stated purpose of culling over five years was to eliminate badgers within the cull area. It was designed to be non-selective and relied on the use of traps, which were a means designed for large-scale capture or killing. They said they understood the population of badgers in the pilot trial was 1,500 but that 3,000 cages had been ordered. STB said the species would be depleted in numbers and the added stress of the badgers social groupings being disrupted due to perturbation meant that any badgers that escaped the cull could be vulnerable to indirect agents such as persecution and drought and they could therefore become extinct in the areas designated. They said the Court of Appeals judgement of 13 July 2010 stated that, in the absence of devolution, if a cull authorised by an order under the Animal Health Act 1981 was effective, the badger would be eradicated and become extinct.

3. STB said the proposed cull was not intended to be an experiment. However, by using several methods of control it would not be clear which of the measures had caused the result. They said, in any event, the pilot scheme could not be replicated elsewhere where there were TB hot spots because the proposed cull area had idiosyncratic geographic characteristics.

STB said the claim ... Killing badgers does not work! ..." was based on the ISG report, which also stated that there was overwhelming scientific evidence to suggest badger population control should not be the main approach to controlling cattle TB. They said the subject was very complex and had been the subject of debate. However no evidence credibly contradicted the evidence on which the ISG report was based. There had also been no new empirical data published related to the effectiveness of culling aside from papers that examined the aftermath of the RBCT, which concurred with the point made by the ISG.

Assessment

1. Upheld

The ASA noted STB believed the closed season was not sufficient to prevent all cubs dying, however, we considered the text "Young cubs will starve underground ... " was likely to be interpreted as an absolute statement. We noted the evidence they submitted took the form of an abstract only, rather than a full scientific study. Nevertheless, we noted the abstract stated the number of unweaned cubs missed by culling teams was dramatically lower than that projected by some badger welfare lobby groups. It said data suggested that the closed season was effective in reducing the suffering of unweaned cubs in badger populations subject to culling and the authors recommended the measure should be maintained should badger culling form a component of any future TB control policy. We considered the evidence submitted was insufficient to support the absolute claim "Young cubs will starve underground ... ". Because the claim had not been substantiated, we concluded that the ad was misleading.

On this point, ad (a) breached CAP Code (Edition 11) clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 8.1 (Matters of opinion).

2. Upheld

We noted STB believed badgers in the cull area would be exterminated both as a result of the objectives of the cull and of the related consequences. We noted the statement in the Court of Appeal judgement but understood that reference was to a hypothetical scenario considered in relation to interpretation of the relevant legislation. We noted STB did not submit evidence in support of the claim " ... a five year plan to slaughter badgers in Pembrokeshire and Ceredigion - yes, exterminate a native breeding species!", which we considered was likely to be interpreted as an absolute statement, but that the ISGs report stated that proactive culling reduced badger activity by approximately 70 per cent, rather than eliminating the species completely. Because the claim had not been substantiated, we concluded that the ad was misleading.

On this point, ad (a) breached CAP Code (Edition 11) clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 8.1 (Matters of opinion).

3. Upheld

We understood that at the time the ad appeared the evidence on which authority to carry out the cull was based was being reconsidered and that a decision was subsequently reached that it was not sufficient, without further consideration, to meet the requirement for a "significant" reduction in TB in cattle in the relevant area and also could not be used to make an order for other parts of Wales. We noted however that decision had not been reached when the ad was published at which time the authority to carry out a non-selective cull throughout Wales remained, based on the same evidence. We also understood culling could be said to have some justification; because the evidence on which the original Order was based, which stated that there was a net reduction in the incidence of bovine TB of 9 per cent in the trial area (we also understood the reduction was around 30 per cent before the potential effects of perturbation were accounted for), was not disputed. We considered the claim " ... hundreds of badgers will lose their lives in a pilot scheme with no scientific justification" was likely to be interpreted as absolute; however, we understood the question of whether there was scientific justification for the proposed cull remained under consideration at the time the ad appeared. Because the ad made an absolute claim, that had not been substantiated, about a matter that was the subject of complex debate, we concluded that it was misleading.

On this point, ad (a) breached CAP Code (Edition 11) clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 8.1 (Matters of opinion).

4. Not upheld

We considered, in the context of an ad that posed a number of hypothetical questions, in which the advertisers opinion was implicit, the statement " ... Killing badgers does not work! ... " was likely to be interpreted as the opinion of STB. Because the claim was likely to be understood as a reflection of the advertisers subjective view, we considered it was not capable of objective substantiation. We considered the claim was clearly an expression of STBs opinion and therefore concluded that it was not misleading.

On this point, we investigated ad (b) under CAP Code (Edition 11) clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 8.1 (Matters of opinion) but did not find it in breach.

Action

The ads must not appear again in their current form. We told STB to ensure they held robust substantiation before making claims that were not clearly an expression of their view in future.

Adjudication of the ASA Council (Non-broadcast)

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