Prohibited and controlled advertising
Prohibited products and servicesWhat products and services may not be advertised?
Broadcast advertisingUnder the Television Advertising Code and the Radio Advertising Code (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.
Prohibited advertising methodsAre 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.
However, 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.
Subliminal advertisingThe 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 minorsWhat 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 productsAre 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.
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 the claimed nutritional value of food and dietary supplements, and claims related to weight loss, fat reduction or obesity.
Food and healthAre 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.
AlcoholWhat are the rules for advertising alcoholic beverages?
The Broadcast Codes require that the 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.
TobaccoWhat 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 the use of 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 to the Legislative Council a bill to prohibit any Hong Kong internal market dealing such as selling, providing or advertising any alternative smoking products, such as e-cigarettes.
GamblingAre 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.
LotteriesWhat 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 Code of Practice.
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.
Indirect marketingAre there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?
The Broadcast Codes contain specific restrictions.
Other advertising rulesBriefly 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. 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; the breach of this requirement results in the contravening person being 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.
The Personal Data Privacy Ordinance contains strict regulation of direct marketing through mail, fax, electronic mail or other means of communication, or making telephone calls to specific persons without the written consent of the marketing target person.
The Unsolicited Electronic Messages Ordinance prohibits the sending of a commercial electronic message with a Hong Kong link without the consent of the target recipient.
