Legislation and regulation
What are the principal statutes regulating advertising generally?
Hong Kong has always valued total freedom of expression. It is a cardinal maxim of principle guiding all consideration of any possible legislative action or enactment.
Apart from the general controls on television and radio advertising, and controls under specific protection laws described below under the control of the Hong Kong government authorities appointed by the law, there is no generally applicable legislated restraint or restriction on advertising. The specific instances of particular regulation of advertising content categories are dealt with below.
In addition to the legislated specific enactments applicable to specific products or circumstances, there is a self-regulatory structure established by the Code of Practice (the 4As Code) ordained for all its members by the Association of Accredited Advertisers (the 4As) to which all advertising agency members of the 4As must ensure compliance.
All targeted recipients of any invitation are ‘data subjects’ for the purposes of the Personal Data Privacy Ordinance (the PDPO). This includes any invitation communicated by way of advertisement.
‘Personal data’ is defined as anything that will enable a living person to be identified. This certainly includes the officially allocated number of any personal identifying documentary publication such as a national passport or national identity card. These days the meaning of the term can arguably be extended to biometric recording and transmission by communication of the photographic image of the data subject and possibly to other biometric records such as the transmitted shape of the data subjects walking profile.
The PDPO requires a set of six data protection principles regulating the collection and use of personal data to be observed by the data user in regard to acceptance and execution of an invitation to participate for which a response requires submission of personal data by the participant with the result that the personal data is collected by the data user.
Accordingly, the data user must collect the personal data in a lawful and fair manner for a lawful purpose directly related to a function or activity of the data user and engage the formal consent of each data subject to fully notified and informed agreement of the data subject to the express purpose of the subject matter of the invitation such that the entrant data subject is clearly entering for the specific use and purpose set out for entry and only for the submission of personal data to be available for the specific purposes and stated time both as clearly identified in the invitation. Any proposed future use of the personal data in future advertising must also be clearly included in the stated purpose.
The Privacy Commissioner has successfully categorised ‘blind’ recruitment advertisements inserted by advertising recruitment agents as being in breach of Data Protection Principle 1 by not expressing the name of the employer data user for whose benefit the advertisement is inserted.
Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?
Control guidance for broadcast advertising to be observed by broadcasting service licensees is set by the Communications Authority established under the Broadcasting Ordinance. The Broadcasting Ordinance specifically provides that the internet is not a television programme service and therefore not a broadcasting service requiring a licence.
Controls on the advertising of solicitation of investment opportunities is controlled by the Securities and Futures Commission (SFC).
Equally, controls on the advertising of investment opportunities by authorised institutions such as licensed banks are controlled by the Hong Kong Monetary Authority (HKMA), which coordinates its regulatory function with those of the SFC in respect of the compulsory registration and licensing with the SFC of all authorised financial institutions under the general control of the HKMA.
The Home Affairs Department of the Hong Kong government exercises control over a range of specific potential advertisement outreach in the products and services specifically set out below.
What powers do the regulators have?
Penalties are provided for under specific ordinances exercising control over advertisement outreach and as addressed in more detail below.
The regulators are empowered to apply a mixture of sanctions, the principal one being the finding that a particular advertiser is not ‘fit and proper’ to continue to have a licensed registration with the relevant registering or licensing authority.
This is a possible concern of a licensed securities dealer regulated by the SFC in respect of which a breach of the advertising controls on investment opportunities runs the risk of the licensed dealer being found not ‘fit and proper’ to continue as an SFC licensee.
What are the current major concerns of regulators?
The current major concerns of regulators are clearly provided for in the relevant respective legislative enactments providing for regulation or control of advertisement content and schedules.
Apart from addressing regulatory concern through constant monitoring both by relevant departments of the government and by consumer awareness, the specific respective legislative enactments providing for regulation or control of advertisement content and schedules are always under review, if only because the needs of the community develop and move on in a continual flow.
Aside from specific topic issues, an overall regulatory concern is with personal data collection, unsolicited emails, accurate descriptions and practices in the lifeblood of trade in goods and services, anti-money laundering and drug trafficking. Hong Kong is by no means immune from these problems and specific laws are rigorously enforced by vigilant supervisory authorities and the courts.
Give brief details of any issued industry codes of practice. What are the consequences for non-compliance?
The principal controls upon licensees are as follows:
- for television broadcasting under the Broadcasting Ordinance, the controller is the Communications Authority, which is fully empowered to issue and, in certain circumstances, withhold or withdraw a broadcasting service licence. The Communications Authority administers its Generic Code of Practice on Television Advertising Standards setting out the details of the advertising standards with which a licensee must comply (the Television Advertising Code);
- the internet is expressly provided as not to be regarded as a television programme service and matter communicated on the internet is therefore not of itself subject to regulation by the government;
- the Television Advertising Code requires licensees to ensure that any advertisements included in their licensed services comply with it, and is defined to apply to any material included in a television programme service that is designed to advance the sale of any particular product or service or to promote the interests of any organisation, commercial concern or individual in or through a wide range of designated media;
- advertising material is required to be clearly identifiable as an advertisement with a clear distinction between what is required to be stated to be an advertisement and programme content, and (inter alia) competitor disparaging is prohibited; and
- the Television Advertising Code requires advertisements to be legal, clean, honest and truthful and compliant with the laws of Hong Kong and there is a wide range of stipulations as to factual claims and best-selling claims required to be substantiated and a listing of unacceptable advertisements for specified products or services. Advertisements are required to be identified as such and to be distinguished from programmes.
Under the Telecommunications Ordinance, the Radio Code of Practice on Advertising Standards (the Radio Advertising Code) must be complied with, for radio broadcasting, by licensees of any sound broadcasting service licensed under the Telecommunication Ordinance. The Communications Authority has power to impose sanctions on licensees who do not comply with this Code.
Control of advertising other than that specifically legislated is left to the advertising profession as a self-regulatory function, which is effectively controlled by the 4As in the 4As Code, which all advertising agency members of the 4As must adhere to and comply with.
The Television Advertising Code and the Radio Advertising Code are collectively referred to as ‘the Broadcast Codes’.
Must advertisers register or obtain a licence?
Hong Kong has no dedicated registration function or licensing requirement for advertisers or advertising agents per se but the licensed broadcast carriers of advertisements both on television and on radio are required to comply with the respective advertising codes.
May advertisers seek advisory opinions from the regulator? Must certain advertising receive clearance before publication or broadcast?
Consistent with question 6, there is no regulatory authority with which potential advertisements can be discussed or cleared by advertisers. On the whole, the internal self-regulation of the advertising industry through the 4As Code has, over many years, proved itself to result in a well-moderated discipline of approach and outreach and works well.
Private enforcement (litigation and administrative procedures)
Challenging competitors advertising
What avenues are available for competitors to challenge advertising? What are the advantages and disadvantages of the different avenues for challenging competitors’ advertising?
Hong Kong has a Consumer Council established under the Consumer Control Ordinance. The Hong Kong Consumer Council has no actual powers of control over, or regulation of, advertising. Its role is to enhance consumer welfare and to empower consumers to protect themselves. It frequently draws public attention to a misleading advertisement or display, which then invites control or regulation from the specifically authorised controllers under the relevant law, ordinance or code. The Broadcast Codes require that broadcast advertising matter should contain no claims that have the effect of disparaging competitors, competing products or services to other industries, professions or institutions.
How may members of the public or consumer associations challenge advertising? Who has standing to bring a civil action or start a regulatory proceeding? On what grounds?
In the event of conflict between truth and misrepresentation in any particular advertisement, whether identified or drawn attention to by the Consumer Council or in some other way, the relevant regulatory authority can take criminal action against the advertiser at the instance or instigation of a member of the public or consumer association as detailed below.
Further, television and radio broadcasting licences contain conditions of observance of the Broadcast Codes, and the Communications Authority is given the ultimate sanction of cancelling and revoking a broadcast licence.
With some exceptions, the Broadcasting Ordinance provides that, where a person makes a complaint to the Communications Authority that a licensee or any other person has contravened the Broadcasting Ordinance or the Telecommunications Ordinance or the terms or conditions of a licence or the Broadcast Codes, the Communications Authority must refer the complaint to the Broadcast Complaints Committee, which may hold hearings and enable the licensee or any other person to make representations and finally make recommendations concerning the complaint to the Communications Authority.
Burden of proof
Which party bears the burden of proof?
In civil actions in the civil courts, the complainant bears the burden of proof. In criminal actions for criminal prosecution for infringement against any duly legislated legal sanction, the Department of Justice carries the burden of proof.
What remedies may the courts or other adjudicators grant?
Courts in Hong Kong are required, in the event of successful prosecution for advertisement law breaches, to impose criminal sanctions that, on conviction, can involve criminal penalty such as fines or imprisonment.
Length of proceedings
How long do proceedings normally take from start to conclusion?
There is no set time constraint upon action in the courts, but proceedings are reasonably expeditious.
Cost of proceedings
How much do such proceedings typically cost? Are costs and legal fees recoverable?
Both civil and criminal proceedings are expensive. In the criminal jurisdiction courts, the engagement of legal counsel is optional but a body corporate can appear and plead its case only through legal counsel.
In civil jurisdiction, engagement of legal counsel is also voluntary, except in the case of bodies corporate.
A substantial proportion of the court-taxed costs of a successful civil plaintiff can be ordered against the losing defendant in a civil trial.
If a defendant is acquitted of a charge in a criminal trial, the magistrate or judge hearing the case has a discretion to award reasonable legal costs to the acquitted defendant. The exercise of the discretion is subject to careful review of all relevant factors.
What appeals are available from the decision of a court or other adjudicating body?
Appeals from the Court of First Instance lie in the Court of Appeal. Appeals from the Court of Appeal lie in the Court of Final Appeal. This is the highest court in Hong Kong exercising both civil and criminal jurisdiction and its decisions are final but with the overwhelming authority of the State Council of the Peoples Republic of China. However, only two cases have been referred to the State Council in the last 20 years.
Appeals from specific tribunals set up under specific ad hoc ordinances lie in the specified appeal boards, of which there are more than 60, as provided in the specific ordinance concerned.
Editorial and advertising
How is editorial content differentiated from advertising?
The principal legislation governing advertising content, whether editorial or substantive, is the Trade Descriptions Ordinance (the TDO). However, the TDO does not contain specific requirements for advertisers to disclose the influential content of editorial.
The Broadcast Codes require that advertising material should be clearly identifiable and distinguishable as such and should be recognisably separate from relevant broadcast programmes and any advertisement adopting a programme style must be carefully assessed, to ensure that there is no risk of confusion with the programme material and that any advertisement adopting a programme style must be flagged as such by superimposing a caption stating ‘advertisement’ or ‘advertising magazine’, in a clearly legible manner for the entire duration of the programme.
Advertising matter should be presented with courtesy and good taste in harmony with the programme with which it appears. No advertisement may contain any descriptions, claims or illustrations that expressly or by implication depart from truth or mislead about the product or service advertised or about its suitability for the purpose recommended.
Advertisements should not be permitted to imitate the name or advertising slogans of competitors and advertisements should not unduly play on fear.
If a licensee did not know and had no reason to suspect that the claims made in an advertisement were false or misleading and could not with reasonable diligence have been ascertained as false or misleading, the licensee is discharged from responsibility for it.
Advertising that requires substantiation
How does your law distinguish between ‘puffery’ and advertising claims that require support?
‘Puffery’, which must clearly communicate self-promotion in an honest and innocent way, is not culpable. However, the lines between ‘puffery’ and the mandatory support of advertising claims must be carefully drawn. Generally speaking, exaggerated claims made in common advertising practice are legitimate, provided that:
- the statements are not meant to be taken literally; and
- the average consumer would be unlikely to take literally the meaning of these obvious exaggerations or puffery.
The general principle being that in the ordinary course of commercial dealings, a certain degree of ‘puffing’ or embellishment is expected and it is clear that any such ‘puffing’ should steer clear of any absolute statement capable of being regarded as objective assessment or comparative claim that is clearly not fanciful or non-comparative.
Rules on misleading advertising
What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?
The Broadcast Codes prohibit any misleading claim or implication that the product or service being advertised or any ingredient of it has some special feature or composition that is incapable of being established. Care should be taken to not mislead viewers or listeners and to present results of research surveys or tests relating to the advertised product or service. Irrelevant data and scientific jargon should not be used to make claims appear to have a scientific basis that they do not possess.
Particular reference is made requiring that any pricing element or comparison must be accurate and not misleading by undue emphasis or distortion.
The TDO provides that a false trade description (which can include an oral statement), 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 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’. For example, a cream that contains synthetic materials, such as preservatives, should not be described as ‘100 per cent natural’, and a beauty consultant should not tell a consumer that a slimming product has been acquired by a celebrity for his or her personal use with good results if that celebrity has never acquired or agreed to acquire the product.
The following factors can be used to help to identity a possible false trade description:
- form and content;
- manner; and
- frequency of publication and all other relevant matters.
Misleading omissions can be as likely to constitute a false trade description as a misleading positive statement if the result does not give consumers sufficient material information about the goods or services that is necessary for them to make a fully informed transactional decision.
Examples of misleading omissions can be seen as:
- the use of small fine print to state the unit of quantity of the goods (even if the price is given in a clear manner, the unit of quantity is so small that an average consumer could not read it in a readily comprehensible manner); and
- a beauty group promotes a stem cell transfusion service stated to be performed by a medical practitioner without disclosing the risk of the medical treatment and this disclosure is omitted until after the consumer pays for the service.
The TDO further prohibits aggressive commercial practices defined as a practice that significantly impairs or is likely to significantly impair the freedom of choice of the average consumer or conduct in relation to the goods or services concerned through the use by the seller or service provider of harassment, coercion or undue influence and that therefore causes or is likely to cause a consumer to make a decision that he or she would not have made otherwise.
The TDO further prohibits bait advertising defined as an offence for a trader failing to offer specific products for supply at a specified price for a period that is, and in quantities that are, reasonable, having regard to: the nature of the market in which the trader carries on business; and the nature of the advertisement.
The TDO further prohibits ‘bait and switch’ defined as invitation to purchase a product at a specified price and then refusal to show or demonstrate that product and to demonstrate a defective example of it with the intention of promoting an actual different product.
The TDO further provides that liability under the Ordinance is attributed to certain classes of persons of a body corporate or of an unincorporated body if the offence is committed by the body corporate. The persons concerned include directors, company secretaries, principal officers or managers.
The Broadcast Codes require that any material in a licensed television or radio service designed to advance the sale of any particular product or service or to promote the interests of any organisation, commercial concern or individual must be legal, clean, honest and truthful and presented with courtesy and good taste without disparagement of competitors or competing products or services.
The Broadcast Codes require that all factual claims and best-selling claims should be capable of substantiation. Statements should not be used in respect of any products that they are ‘the best’, ‘the most successful’, ‘the safest’ or ‘the quickest’ or containing any similar use of superlative adjectives unless the truthfulness of such statements is adequately substantiated either by research or by testing based on the advertiser’s own assessment or by independently audited sales figures or probability sample surveys recognised or endorsed by an industry body or accepted under industry-wide standards of the relevant trade.
No advertisement may misleadingly claim or imply that the product advertised or any ingredient of it has some special features or composition that are incapable of being established, and information conveyed must be accurate and not misleading by concealing or failing to make clear significant facts.
Substantiating advertising claims
Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?
The Broadcast Codes require that any best-selling claim must be substantiated by independently audited sales figures or industry recognised or endorsed body sample surveys of probability to ensure that the findings advertised are statistically significant, reliable and valid.
In particular, superlatives like ‘most popular’, ‘most preferred’, ‘most favoured’, etc, when used in a manner that clearly suggests a leading or topmost sales position, must be subject to the same standards of independent substantiation governing best-selling claims.
Are there specific requirements for advertising claims based on the results of surveys?
Consistent with the general requirement of truthfulness, reliance upon and reference to any survey should be supported only by thoroughly and responsibly conducted surveys.
Comparisons with competitors
What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?
The Broadcast Codes require that advertising matter should contain no claims intended to disparage competitors, competing products or other industries, professions or institutions.
Test and study results
Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?
The Broadcast Codes require that advertising matter should not use statements in respect of any products claiming that they are ‘the best’, ‘the most successful’, ‘the safest’ or ‘the quickest’, or containing any similar use of unsupported superlative adjectives involving comparison with other products or departures from strict truth. Advertisers must be prepared to produce evidence to substantiate any descriptions, claims or illustrations (including ‘best-selling’ claims).
Are there special rules for advertising depicting or demonstrating product performance?
The Broadcast Codes and the 4As Code contain specific restrictions upon advertising content for product performance.
Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief or experience?
Without substantiation that professional advice or recommendation has been obtained from an acceptable organisation of the relevant profession, advertisements containing presentations of medically qualified practitioners giving the impression of professional advice or recommendations, statements giving the impression of professional advice or recommendation by those persons appearing in advertisements and presented as being qualified to give such advice or recommendation and references to the approval, acceptance or recommendation of, or preference for, the specific products or their ingredients or their use by any professional body are not acceptable.
Are there special rules for advertising guarantees?
The basic requirement of truthfulness and enforceability of the guarantee or related undertaking apply.
Are there special rules for claims about a product’s impact on the environment?
Free and special price claims
Are there special rules for describing something as free or a free trial or for special price or savings claims?
The Broadcast Codes require that visual and verbal presentations of advertisements indicating price, price comparisons or reductions or any pricing element must be accurate and must not be misleading by undue emphasis or distortion.
The TDO provides that, as referenced in question 17, trade descriptions are specifically prohibited if they are false and misleading representations concerning the price of goods or services. The word ‘free’ has been clearly identified for special attention as a word that should be handled with very great care and it is accordingly reasonably clear that ‘free’ from the consumer viewpoint means absolutely free of charge or cost.
New and improved
Are there special rules for claiming a product is new or improved?
Under the TDO, claims of newness or improved quality must be justifiably correct and capable of substantiation.
Claims of origin
Are there special rules for claiming where a product is made (such as country of origin)?
See the False Trade Description sanctions under the Trade Descriptions Ordinance referenced in question 26 above.
Prohibited and controlled advertising
Prohibited products and services
What products and services may not be advertised?
Under the Broadcast Codes, advertisements for any of the following are not acceptable whether directly or indirectly for inclusion in a licensed broadcasting service:
- firearms and associated equipment;
- fortune tellers, but not precluding advertisements or publications on subjects of general interest such as horoscopes, astrology, Chinese almanacs, feng shui, etc;
- undertakers or others associated with death or burial except dignified and restrained presentation of advertisements for columbaria provided that all explicit references to death and technical aspects of associated services and morbid details are avoided;
- unlicensed employment services, registries or bureaus;
- organisations, companies or persons seeking to advertise for the purpose of giving betting tips;
- betting, unless authorised by or under the Betting Duty Ordinance and for horse racing or football betting publications and related matters. No advertisements for these items should be shown within or in proximity to children’s programmes, and any advertisement for lotteries are subject to specific restrictions, which are that they:
- cannot be shown between 4pm and 8.30pm;
- must target adult only audiences, without depicting any child or adolescent participation;
- must not feature any personality who has particular appeal to children or adolescents;
- must not contain any statement or praise for those participating in lotteries or football or horse race betting;
- must not denigrate those who abstain from such;
- must not mislead or exaggerate the likelihood of winning;
- cannot be instructional in nature or unduly exhort the public to bet; and
- cannot feature excessive or reckless betting or present lotteries, football or horse race betting as an alternative to work or as a way out of financial difficulty;
- night clubs, dance halls, massage palaces, sauna houses and such like;
- escort services and dating agencies targeting young persons under the age of 18; and
- pay-per-call information.
Further, any advertisement for an acceptable product or service may be unacceptable if, in the opinion, and at the discretion of, the Communications Authority, a significant effect of the advertisement would publicise indirectly an unacceptable product or service.
The Broadcast Codes contain further detailed provisions on the advertising of specific products or services.
Specific regulatory controls under applicable ordinances are identified in specific parts of this chapter.
Prohibited advertising methods
Are certain advertising methods prohibited?
General controls on internet-based approaches to consumers are enacted and provided for under the Unsolicited Electronic Messages Ordinance (UEMO), Hong Kong’s anti-spam law, which prohibits professional spamming activities such as the use of unscrupulous practices to reach out to more recipients, and fraudulent activities in relation to sending commercial electronic messages. In particular, the UEMO sets out the rules for sending commercial electronic messages (eg, the requirement to provide full sender information and, particularly, to include and to honour an unsubscribe facility and requests as well as providing for the do-not-call registers that must all be kept for at least three years after receipt). The Unsolicited Electronic Messages Regulation (UEMR) prescribes, under the UEMO, detailed requirements relating to the accuracy of ‘sender information’, an ‘unsubscribe facility’ and an ‘unsubscribe facility statement’ to be included in electronic messages.
In addition to the UEMO and the UEMR, there is a Code of Practice (COP). The COP aims to provide guidance in respect of the application or operation of the provisions of the UEMO.
It should, however, be noted that the UEMO regulates the sending of ‘commercial electronic messages’ with a ‘Hong Kong link’. In general, a commercial electronic message has a Hong Kong link if the message:
- originates in Hong Kong;
- is sent to Hong Kong; or
- is sent to a Hong Kong telephone or fax number.
However, in a careful legislative avoidance of controls upon direct marketing to consumers, the following messages are exempt from application of the UEMO:
- person-to-person telemarketing calls;
- sound broadcasting or television programme services; and
- partial commercial electronic message exemption exists if an electronic message is sent in response to a request by the recipient and the primary purpose is related to a commercial transaction with which the recipient is currently involved.
The Judicial Proceedings (Regulation of Reports) Ordinance provides that, with respect to the privacy and confidentiality assistance afforded by law, it is unlawful to print or publish, or cause or procure to be printed or published, in relation to any judicial proceedings for dissolution of marriage, nullity of marriage or judicial separation of parties, any particulars other than:
- the names, addresses and occupations of the parties and witnesses;
- a concise statement of the charges, defences and counter-charges;
- any submissions on a point of law and the decision of the court thereon; and
- the summing up of the judge and the finding of the jury and observations made by the judge in giving judgment.
Any person contravening this restriction shall be guilty of an offence and liable to fine and imprisonment provided that the sanctions are expressly stated to apply to any proprietor, editor, master printer or publisher, and otherwise the sanctions or restriction are expressly stated not to apply to judicial proceedings or communication to the persons concerned in the proceedings or by way of law reports.
The Television Code specifically prohibits subliminal advertising by a licensee on its television channels.
The Broadcast Codes require advertising to be stated as such and clearly distinguished from programme material.
In this connection, ‘advertisement’ or ‘advertising material’ means any material that is effectively designed to advance the sale of any particular product or service or to promote the interests of any organisation, commercial concern or individual in whatever way and included in the course of a programme to any products or services. All such purely commercial promotional material must be clearly distinguished from the actual programme material and there are regulations limiting the time span of advertisements in relation to actual programme material.
All sponsored programmes must be clearly identified as such and sponsor identifications must be distinguishable from advertisements and must not contain superlative claims, price information or direct exhortations to the public. In the Television Broadcast Code, it is provided that viewers should not be subject to any hidden editorial influence.
A 2017 survey was conducted for the Communications Authority on the regulation of indirect advertising defined as the mingling of programme and advertising material or of the embedding of advertising material within programme content, whether inadvertently or by design, as distinguished from product or sponsorship defined as the inclusion of products or services within a programme in return for payment or other valuable consideration.
This survey generally established that the majority of television viewers considered that the current restrictions on the aggregate advertising time per clock hour were necessary. It was further considered by approximately half of television viewers surveyed that relevant restrictions on the employment of product placement should, in principle, achieve the goal of avoiding affecting the integrity and attractiveness of programmes.
Protection of minors
What are the rules for advertising as regards minors and their protection?
The Broadcast Codes prohibit a wide range of advertisements and participation in advertisements and the showing of advertisements with or to children and prohibit transmission of these advertisements at times within or in close proximity to programmes targeting children.
Credit and financial products
Are there special rules for advertising credit or financial products?
The Broadcast Codes require licensees to ensure that advertisements comply with all relevant legal and regulatory requirements in respect of a wide range of ordinances and codes for investment products. It is the responsibility of users of these codes to ascertain the applicable and up-to-date legal and regulatory requirements.
Further provisions require compliance in respect of:
- deposit and savings facilities;
- mortgage lending and credit;
- advice about the stock market or investment products and regulated activities under the Securities and Futures Ordinance;
- proceeds of insurance policies; and
- any sale or letting advertisement for real estate property, unless the advertiser is able to substantiate that any such proposal does not constitute any breach of the conditions relating to such sale or letting imposed in the government’s lease conditions affecting the land on which any completed building on such real estate property stands.
Therapeutic goods and services
Are there special rules for claims made about therapeutic goods and services?
As per the Public Health and Municipal Services Ordinance, no person shall sell, offer, expose or advertise for sale any drug injuriously affected in its quality, constitution or potency by means of adding a substance to, or abstracting any constituent from, a drug so as to affect injuriously the quality, constitution or potency of the drug.
The Broadcast Codes require that claims relating to nutrition or dietary effects of products or services should be handled with care, and claims of effects or treatment for conditions of health for which qualified medical attention or advice should reasonably be sought are not acceptable.
In addition, always subject to required compliance with the provisions of the Undesirable Medical Advertisements Ordinance, there are specific provisions relating to claimed nutritional value of food, dietary supplements, weight loss or fat reduction or by reference to obesity.
Food and health
Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?
No person shall sell, offer or expose for sale, or advertise under the designation of milk, any liquid in the making of which any separated milk, or any dried or condensed milk has been used.
If any person publishes or is party to the publication of an advertisement falsely describing any food or drug or is likely to mislead as to the nature, substance or quality of any food or drug, he or she shall be guilty of an offence and be liable on conviction to a fine and imprisonment.
In any proceedings in respect of such advertisement against the manufacturer, producer or importer of the food or drug, the burden of proof that he or she did not publish and was not a party to the publication of the advertisement, is on the defendant, but in any proceedings for such an offence, it shall be a defence for the defendant to prove either that he or she did not know, and could not with reasonable diligence have ascertained, that the advertisement was a false description or likely to mislead, or that, being a person whose business it is to publish or arrange for the publication of advertisements, he or she received the advertisement in the ordinary course of business.
What are the rules for advertising alcoholic beverages?
The Broadcast Codes require that advertising of alcoholic beverages should target only an adult audience and no children or adolescents shall be allowed to participate in the presentation of such advertisements. Such advertisements should not be shown in proximity to children’s programmes or programmes that, in the opinion of the Communications Authority, target young persons under the age of 18.
Advertisements that attempt to portray drinking as a desirable new experience or that portray drinking as indispensable to popularity and success are not permitted, and the presentation of alcoholic liquor as prizes or gifts in isolation for broadcast content are not permitted.
There are further detailed prohibitions upon the effect or communicated effect of alcoholic beverage advertisements that, generally speaking, should not encourage immoderate drinking, misuse or abuse of alcohol, should not portray alcohol as a prerequisite to relaxation, or encourage or challenge non-drinkers or young persons under the age of 18 to drink.
What are the rules for advertising tobacco products?
No person shall print, publish or cause to be published a tobacco advertisement in any local newspaper or any printed document printed, published or distributed in Hong Kong, nor display or cause to be displayed or published or distributed for purpose of display, or broadcast by radio waves or visual images or sound or exhibit by film or place on the internet any tobacco advertisement. ‘Tobacco advertisement’ is defined as any advertisement containing any express or implied inducement suggestion or request to purchase or smoke cigarettes or promote or encourage to use tobacco products and any person who contravenes these provisions commits an offence and is liable on summary conviction to a fine.
However, an advertisement is not to be regarded as a tobacco advertisement if its purpose is to discourage smoking.
The Broadcast Codes require that all licensees comply with all relevant provisions relating to tobacco advertisements under the Smoking (Public Health) Ordinance and prohibit presentation of tobacco products as prizes or gifts for broadcast content. Any advertisement for tobacco-related products, such as cigarette holders, tobacco filters and other smoking accessories, shall target only adult audiences, not allow participation by children or adolescents, nor show advertisements in proximity to children’s programmes or programmes that target young persons under the age of 18.
On 13 February 2019, the Hong Kong government introduced into the Legislative Council a bill to prohibit any Hong Kong internal market dealing with such as selling, providing or advertising any alternative smoking product such as e-cigarettes.
Are there special rules for advertising gambling?
Under the Gambling Ordinance, advertisements to promote or facilitate bookmaking and betting-related services are prohibited and it is illegal for any person to advertise offshore bookmaking in Hong Kong.
What are the rules for advertising lotteries?
The Secretary for Home Affairs has issued a Code of Practice for the conduct of football betting and lotteries, which gives guidance on how the licensing conditions for football betting and lotteries may be complied with. Licensees should not advertise the conduct of football betting and lotteries in, or in close proximity to, educational and training institutions for juveniles nor place advertisements or promotional materials on billboards or other outdoor displays that are directly adjacent to such institutions. A juvenile is a person under 18 years of age.
Under the Gambling Ordinance, in terms of the holding or organisation of a lottery that is defined as a sweepstake involving an element of chance for picking winners as opposed to the exercise of skill for picking winners, there are two permissible lottery or sweepstake functions, but otherwise all gambling is illegal.
There are two permissible exceptions to the illegality of lotteries, which are:
- a licensed lottery registered with the Secretary for Home Affairs and organised for strictly charitable purposes under a licence issued under strict conditions; and
- a licence issued by the Licensing Office for the holding of a sweepstake under strictly applied sweepstake rules approved in advance by the Licensing Office, which provides for an exception for a game of chance but prohibits a money prize.
What are the requirements for advertising and offering promotional contests?
In the absence of any element of gambling in a promotional contest, there are no controls outside those applicable to the relevant advertising agency under the 4As Code.
However, if a promotional contest is promoted as a business operation and involves any element of chance in the selection of winners, then it is illegal gambling under the Gambling Ordinance, with one exception. The exception is that the law recognises the promotion, for purposes of trade, of games of chance and as a specific exception to the prohibition as illegal gambling of a trade promotion competition, the competition can be organised, but only under the terms and conditions of an advance licence applied for by the overseas or Hong Kong domestic organiser in advance of the promotional contest. Specific conditions apply.
Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?
The Broadcast Codes contain specific restrictions.
Other advertising rules
Briefly give details of any other notable special advertising regimes.
The Broadcast Codes prohibit the insertion of advertisements in the course of a religious service or other devotional programme or school programmes within educational television time slots supplied by the government for domestic free television programme services.
The Broadcast Codes impose a broadcast ban on political advertising and, in general, no election advertisements should appear in television or radio broadcasts.
Comments on, or references to, candidates in any broadcast programme should be treated fairly and equally and there is a risk that promotional or prejudicial comments on a political candidate might be treated as an election advertisement, which may stimulate the Electoral Affairs Commission to refer the same to the Communications Authority for appropriate action. It should be noted that the 2012 Guidelines to follow Codes of Practice when requiring news and current affairs programmes to be fair, objective and impartial are expressly stated as not seeking to shackle the free expression of editorial comment. There is freedom for electoral candidates to advertise freely in printed media, subject, always, to a clear statement that the advertisement concerned is an election advertisement.
The Public Health and Municipal Services Ordinance provides regulatory control of advertisements under regulations that may be made by the Public Health and Municipal Services Authority to restrict, regulate or prohibit the exhibition of advertisements, declarations or signs of any kind whatsoever in any place or in such manner or by such means as the authority may deem to affect injuriously or disfigure any natural beauty amenities or historic place.
Further, under this Ordinance, no bill or poster shall be displayed or affixed on any private land except with the written permission of the owner or occupier thereof and where any such permission is given, any bill or poster display shall be maintained in a clean and tidy condition to the reasonable satisfaction of the Authority; contravention of this requirement constitutes the contravening person liable to prosecution for the offence committed.
The Broadcast Codes require that any advertisement for a film that is classified under the Film Censorship Ordinance intended for public exhibition in Hong Kong must display the appropriate symbol applicable to that particular film and for any film other than the general category I to carry legible visual or aural advisories (or both) to the effect that they are not suitable for particular groups of persons or approved for exhibition to persons aged 18 or above.
Are there any rules particular to your jurisdiction pertaining to the use of social media for advertising?
Have there been notable instances of advertisers being criticised for their use of social media?
Are there regulations governing privacy concerns when using social media?
The PDPO sanctions apply to solicitation of personal data through social media.