HONG KONG SAR, CHINA Law and Practice Contributed by: Angus Forsyth, Angus Forsyth & Co
1. Legal Framework and Regulatory Bodies 1.1 Primary Laws and Regulation There is no single legislated controlling enactment governing advertising practices in Hong Kong SAR. Hong Kong has no Advertising Standards Authority. In a variety of ordinances there are restrictions and controls applying to the public market. The Com - munications Authority established under the Broad - casting Ordinance licences the functions of television and radio broadcast with specific dedicated code requirements, respectively, under the Broadcasting Ordinance for television and the Telecommunications Ordinance for sound broadcasting upon advertising on television and radio. The broadcasting licensees are responsible for ensuring that advertisers com - ply with these licensing regulations under the Trade Descriptions Ordinance. The Customs and Excise Department will prosecute false trade descriptions applicable to trade in goods or services. 1.2 Enforcement and Regulatory Authorities The Communications Authority enforces adherence to the advertising standards required by the respective television and radio Codes of Practice that broadcast licensees must observe. These Codes of Practice specifically prohibit inclusion of a specified number of types of products and services. The Personal Data (Privacy) Commissioner is empow - ered under the Personal Data (Privacy) Ordinance to arrange for prosecution of offences against outreach of commercial advertising in contravention of the direct selling restrictions under the Personal Data (Privacy) Ordinance without the prior written consent of the addressee. The Licensing Office Authority administers due com - pliance with outreach by duly licensed service provid - ers in their advertisement of trade promotion competi - tions. The Customs and Excise Department will prosecute false advertisements under the Trade Descriptions Ordinance.
1.3 Liability for Deceptive Advertising The Trade Descriptions Ordinance imposes controls upon extravagant and deceptive advertising in all media. The Broadcast Codes prohibit any misleading claim or implication that the product or service being adver - tised or any ingredient of it has some special feature or composition that is in fact not clearly available and comprehensible in public access. Care should be tak - en not to mislead viewers or listeners and actively to present results of research surveys or tests relating to the advertised produce or service. Data and scientific jargon which are not relevant to a specific product or service should not be used to make claims appear to have a scientific basis that they do not actually pos - sess or clearly associate with. The Trade Descriptions Ordinance provides that a false trade description (which can extend to include an oral statement), whether applied to goods or com - municated in respect of the provision of services, is defined as meaning “a trade description that is false to a material degree, or a trade description which, though not false, is misleading, that is to say, likely to be taken for a trade description of a kind that would be false to a material degree”. As an example, a cream that contains synthetic mate - rials, such as preservatives, should not be described as “100% natural” and a beauty consultant should not tell a consumer that a slimming product has been acquired by a celebrity for their personal use with good results if that celebrity has never acquired nor agreed to acquire the product. Misleading omissions can be just as likely to consti - tute a false trade description as a misleading positive statement where the result of the misleading omission does not clearly give consumers sufficient material information about the goods or services as is neces - sary for the consumer to make a fully informed trans - actional decision. By way of example, the use of small fine print to state a unit of quantity of goods (even if the price is given in a clear manner) or the unit of quantity is so small that an average consumer could not read it in
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