HONG KONG SAR, CHINA Law and Practice Contributed by: Angus Forsyth, Angus Forsyth & Co
wrongly accepted pre-payment from its attending stu - dents in circumstances where there was no possibility of providing the purchased courses, all in contraven - tion of the Trade Descriptions Ordinance. 1.10 Taste and Cultural Concerns The Broadcasting Codes require adherence to general principles of good taste in advertising. 1.11 Politics, Regulation and Enforcement On 30 June 2020, the Standing Committee of the National People’s Congress validly enacted the National Security Law as a preventative measure against the then immediately prior practices of seces - sion of Hong Kong from China whether or not by force or threat of force, subversion against the government of China, terrorism and, lastly, collusion with foreign organisations. This law enables authorities to detain and search suspected infringers and requires publish - ers, hosting services and internet service providers to remove content in violation of any one or more of these four crimes. It further mandates the govern - ment of Hong Kong to strengthen matters concerning national security including the media and the internet. This new law expressly does not have antecedent or retroactive effect and since its enactment there have been only a very limited number of cases of infringe - ment. The National Security Law expressly provides for carefully enacted re-statement of the continued application of existing Hong Kong law adopting the International Covenant on Civil and Political Rights and freedom of expression under Hong Kong’s Basic Law. The applicable standards to identify deceptive or mis - leading claims are principally identified in the Trade Descriptions Ordinance. 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 incapable of being established as the truth. Care should be taken not to mislead the viewers or listeners as the case may be; and results 2. Advertising Claims 2.1 Deceptive or Misleading Claims
of research surveys or tests of an advertised product or service should not be deployed to dress up claims with an apparent scientific basis which it does not possess. The Trade Descriptions Ordinance provides that a false trade description, whether written or oral and however communicated and whether applied to goods or communicated in respect of the provision of services, means a trade description that is false to a material degree or which, although not false, is misleading. For example, a cream that contains synthetic materi - als, such as preservatives, should not be described as “100% natural”. If a beauty consultant addressing a consumer or potential consumer states that a named celebrity has personal use of a specific product with good results but such celebrity has never acquired or agreed to acquire the product, then the trade descrip - tion involving the celebrity and the product is false. Factors available to help identify a false trade descrip - tion are: • form and content; • time, place, manner and frequency of publication; and • any other relevant matters. Misleading omissions can be as likely to constitute a false trade description as a misleading positive statement where the result does not give consum - ers sufficient material information about the goods or services as is necessary for them to make a fully informed transactional decision in respect of the prod - uct or service. 2.2 Regulation of Advertising Claims See 2.1 Deceptive or Misleading Claims for the Trade Descriptions Ordinance provisions relating to claims that are false to a material extent. Claims for specifi - cally identified benefits should be supported by inde - pendent verification such as specific quality research findings, published benchmark standards and reports. 2.3 Substantiation of Advertising Claims Support for advertising claims can be provided by way of thoroughly credible market survey and specific third-party confirmation by expert reports as justifica - tion of what would otherwise be matters of unsupport -
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