There is no single legislated controlling enactment governing advertising practices in Hong Kong SAR. Hong Kong has no Advertising Standards Authority. In a number of ordinances, there are restrictions and controls on outreach to the public market. The Communications Authority, established under the Broadcasting Ordinance, licenses the functions of television and radio broadcasting with specific requirements and 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 comply 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.

The Communications Authority enforces adherence to the advertising standards required by the respective television and radio Codes of Practice which broadcast licensees must observe. These Codes of Practices specifically prohibit inclusion of a specified number of types of products and services.

The Personal Data (Privacy) Commissioner is empowered under the Personal Data (Privacy) Ordinance to arrange for the 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 compliance with outreach by duly licensed service providers in their advertisement of trade promotion competitions.

The Customs and Excise Department will prosecute false advertisements under the Trade Descriptions Ordinance.

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 advertised, or any ingredient of it, has some special feature or composition that is in fact not clearly available and comprehensible to the public. Care should be taken 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 possess.

The Trade Descriptions Ordinance 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, 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 materials, 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 his or her 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 constitute 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 for the consumer to make a fully informed transactional 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), the unit of quantity is so small that an average consumer could not read it in a readily comprehensible manner, or where a duty group promotes, for example, a stem cell transfusion service which it states is to be performed by a medical practitioner without disclosing the risk of the medical treatment, omission of such disclosure is itself misleading. 

Further prohibited by the Trade Descriptions Ordinance is any aggressive commercial practice which is defined as “a practice that significantly impairs or is likely significantly to impair the freedom of choice of the average consumer or where conduct in relation to the goods or services concerned involves in any way the use by the Seller or service provider of harassment, coercion or undue influence which causes or is likely to cause a consumer to make a decision that, in the absence of such blandishment, he or she would not have made a decision to buy the goods or the services concerned”.

An “advertisement” is defined in the Trade Descriptions Ordinance as including “a catalogue, a circular and a price list”. This Ordinance prohibits false trade descriptions, defined as trade descriptions that are false to a material degree or trade descriptions that, though not false, are misleading – ie, likely to be taken for a trade description of a kind that would be false to a material degree. This Ordinance further penalises forgery of trade marks and prohibits false trade descriptions in respect of services as well as goods.

The Television and Radio Codes of Practice define an advertisement as “any material included in a licensed TV or radio service which is designed to advance the sale of any particular product or service or to promote the interests of any organisation, commercial concern or individual whether by way of words and/or sound effects (including music) and whether in the form of direct announcement, slogans, descriptions or otherwise and includes any promotional reference to any products or services in the course of a TV or radio programme”.

Pre-approval is required by the Home Affairs Department for the content of any advertisement for any competition arranged under and subject to the Licensing Authority requirements for a trade promotion competition, for it to be exempted from the game of chance competition prohibition under the Gambling Ordinance.

The use of intellectual property is subject to the rights of the author in copyright to restrain the unauthorised use of copyrighted material. The Personal Data (Privacy) Ordinance regulates the use of the name, picture, voice or likeness as personal data in advertising of any data subject without the prior written consent of the data subject.

The basic self-regulatory authority governing advertising practices is the Association of Accredited Advertising Agencies, which is a body to which all advertising agencies and advertisers belong and which imposes certain quality controls upon advertising practices.

Any person, firm or company being the subject of negative advertising practices can take private legal action against the advertiser for the publication of personal data without the consent of the owner. The action lies in the civil courts for damages which must be proved.

The last 12 months have not seen significant trends and/or cases regarding deceptive advertising. However, in mid-2023, an education centre with five tenanted branches around Hong Kong provided pre-paid tutorial programmes, mostly registered under the Education Ordinance as private schools offering non-formal curriculum. Attendance was subject to pre-paid tuition fees. The five branches closed and the Customs & Excise Department, as the responsible controlling authority under the Trade Descriptions Ordinance, investigated as to whether the service provider wrongly accepted pre-payment from its attending students in circumstances where there was no possibility of providing the purchased courses, all in contravention of the Trade Descriptions Ordinance.

The Broadcasting Codes require adherence to the general principles of good taste in advertising.

On 30 June 2020, the Standing Committee of the National People’s Congress enacted the National Security Law as a preventative measure against the threatened secession of Hong Kong from China, whether by (i) force or threat of force, (ii) subversion against the government of China, (iii) terrorism, and (iv) collusion with foreign organisations. This law enables authorities to detain and search suspected infringers and requires publishers, hosting services and internet service providers to remove content in violation of any one or more of these four crimes. It further mandates the government of Hong Kong to strengthen national security, including in relation to the media and the internet.

This new law expressly does not have an antecedent or retroactive effect and since its enactment, there have been only a very limited number of cases infringing against it. The National Security Law expressly provides for a carefully enacted restatement of the continued application of the 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 misleading claims are principally identified in the Trade Descriptions Ordinance. 

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 as the truth. Care should be taken not to mislead viewers or listeners, as the case may be, and the results of research surveys or tests should relate to an advertised product or service and should not be deployed to dress up claims with an apparent scientific basis which it does not possess, as principally identified in the Trade Descriptions Ordinance. This Ordinance provides that a false trade description, whether written or oral, 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. As an example, a cream that contains synthetic materials, such as preservatives, should not be described as “100% natural”. Also, for example, if a celebrity is described by a beauty consultant addressing a consumer or potential consumer as having personally used a specific product with good results, and if that celebrity has never acquired or agreed to acquire the product, then the trade description involving the celebrity and the product is false. Factors available to help identify a false trade description 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 consumers sufficient material information about the goods or services for them to make a fully informed transactional decision in respect of the product or service.

See 2.1 Deceptive or Misleading Claims for a description of the Trade Descriptions Ordinance provisions which are false to a material extent. Claims for specifically identified benefits should be supported by independent verification, such as specific quality research findings, published benchmark standards and reports.

Support for advertising claims can be provided by way of thoroughly credible market surveys and specific third-party confirmation by expert reports as justification for what would otherwise be matters of unsupported opinion only. The Broadcast Codes require that all claims should be capable of substantiation either by research, by testing, by the advertiser or by independently audited sales figures which are standard in the particular trade.

The Broadcast Codes and the Code of Practice of the Association of Accredited Advertising Agencies (the “4As Code”) contain specific restrictions upon advertising content for product performance, and there are specific controls and prohibitions upon performance claims provided under the Trade Descriptions Ordinance.

Testimonials in advertising are required to comply with the Trade Descriptions Ordinance and false or misleading testimonials can be restrained by action for misrepresentation. They may also induce reliance by a consumer upon the testimonial which, if false or misleading, can be the basis for legal action by an injured consumer for damages and possibly for injunction.

There are no general rules governing the use of disclosures in advertising. There are specific rules upon nature, emphasis and boastful content under the Trade Descriptions Ordinance.

There are no such special laws or regulations that address stereotyping in adverts.

Major government or privately promoted decisions on projects of land or environmental development are best supported by an environmental assessment impact report.

There are no special laws or guidance in Hong Kong relating to “dark patterns” in advertising, except that it is now internationally established that dark patterns can be represented by bait and switch. This is defined under the Trade Descriptions Ordinance as coupling an invitation to purchase a product or service at a specified price followed by a refusal to show or demonstrate that product, with the demonstration of a defective example or the intention of promoting an actual different product as the “switch”.

The Broadcast Codes prohibit a wide range of advertisements, participation in advertisements and the showing of and timing of advertisements with or to children. They also prohibit the transmission of infringing advertisements at times within – or in close proximity to – programmes targeting children.

There are various statutes and codes, including the Broadcast Codes and including the 4As Code, but with regard to children, there are restrictions on tobacco advertising, alcohol advertising, food nutritional value advertising without sound scientific evidence, the timing of broadcast advertising and product labelling.

There are no rules regarding sponsor identification or branded content but when and if sponsors are identified or brand content represented, action lies at the suit of any injured party.

The Broadcast Codes require that purely commercial promotional material must be clearly distinguished from the actual programme material in any broadcast 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 the sponsor identifications must be distinguishable from advertisements and must not contain superlative claims, price information or direct exhortations to the public. The Television Advertising Code expressly provides that viewers should not be subject to any hidden editorial influence such as subliminal advertising.

Hong Kong is a signatory to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, and accordingly prevents inclusion of geographical indicators in trade mark applications in Hong Kong.

The 4As Code expressly does not permit its members to engage in “disparaging” advertising, which is defined as “an advertisement that seeks to compare a product or service to a similar or other product and service in a way that is misleading, derogatory or false in implication or in fact”.

The Broadcast Codes require that an advertising matter should contain no claims intended to disparage competitors, competing products or other industries, professions or institutions.

Action lies against an advertiser for the tort of passing off by way of the use of the name of a competitor or trade mark of a competitor or like packaging of a competitor without the authority to do so.

The Broadcast Codes require that advertising matter should contain no claims intended to disparage competitors, competing products or other industries, professions or institutions. The 4As Code does not permit its members to publish disparaging advertisements (see 3.1 Specific Rules or Restrictions). An extension to this Code prohibits any implication that a competitive product is not fit for purpose.

The author, as defined in the Copyright Ordinance, is able to restrain the unauthorised use of their copyright.

Regarding trade marks, the Trade Descriptions Ordinance provides that any person forging trade marks, applying them falsely to any goods or making related dies or blocks of any trade mark, commits an offence unless they are able to prove that they acted without the intent to defraud.

As stated in 3.1 Specific Rules or Restrictions, it is entirely possible for “disparaging” advertisement to be objectionable to the disparaged competitor. Both in regard to the 4As Code in respect of a specific member of the Association of Accredited Advertising Agencies and in conformity with the requirements of the Broadcast Codes, where there is a breach of any of these applicable requirements by an advertiser and it is possible for the competing provider of goods or services to make an appropriate complaint, it is possible for additional action to be taken by the Customs and Excise Department in relation to the Trade Descriptions Ordinance if the comparative claim is constituted as a false Trade Description.

“Ambush marketing” is the marketing activity of an entity that is not an organiser or an official sponsor of an event constituting an active attempt simply to use or to create an erroneous and false impression of association with the event and taking advantage of the reputation and outreach of the event, without either the permission of the event owner/organiser and without incurring any or little of the substantial sponsorship cost involved in the official sponsorship of the particular event. There is no current specific Hong Kong ambush marketing legislation to protect Hong Kong-centric or Hong Kong sponsorship expenditure. Common law provides right-infringement remedies in certain circumstances such as passing off, trade mark or copyright violation, misrepresentation or registering similar but fake domain names, but the rights to take these actions are personal to the alleged infringed sponsor and, in the absence of specific contractual entitlement, they are not automatically and generally available across the board either to restrain or to entitle marketing participants, as the case may be.

The Broadcasting Ordinance expressly provides that the internet is not to be regarded as a television programme service and any matter communicated by way of social media on the internet is therefore not of itself subject to regulation by the government.

The posting by others on the site or social media channels of an advertiser is not the liability of the advertiser provided that the advertiser had no responsibility for the third-party content.

As stated in 4.1 Special Rules Applicable to Social Media, online disclosures and disclosures on social media or on an internet communication forum are not regulated in the same way as advertising on a television programme service.

Hong Kong does not prohibit social media platforms and communication on all available social media platforms is possible without restrictions on content apart from the normal rights of third parties in common law or statute such as breach of copyright, breach of trade mark and personal data privacy restrictions.

There are no special rules applicable to “native advertising”, which is advertising that has the look and feel of editorial or entertainment content, but the responsibility for such content should not be represented as that of any party other than the advertiser.

Hong Kong has no special rules or regulations that apply to the use of influencer campaigns and such campaigns are subject to the application of the general law and the specific legislation relating to them.

The influencer can of course benefit from the product which is the subject of the influencer’s output and to that extent, they could be regarded as an advertiser. To put both at ease, the producer should require execution by the influencer of a comprehensive press release relating to the product.

There is no such legally imposed duty but an advertiser is best advised to monitor the content posted by an influencer in order to ensure no breach of the general law, or obligations to specific audiences applicable to the content being posted, occurs.

There are no special rules or regulations applicable to the solicitation and use of consumer reviews save that under normal common law principles, the misrepresentation of consumer reviews can be actionable by any third party.

Provided that an advertiser has clearly identified a specific consumer review as being a report of consumer research, the advertiser will be able to avoid liability for the consumer review in question.

The Personal Data (Privacy) Ordinance provides prohibitions against direct selling by an advertiser or seller to any person without the express prior consent of the addressee, which must also be provided with a workable response channel for communicating that consent. Liability is provided by way of fines and/or imprisonment.

Please see 6.1 Email Marketing. Furthermore, the Broadcasting Ordinance expressly provides that the internet is not regarded as a television programme service and matter communicated on the internet is therefore not subject to regulation by the government.

There are no specific rules applicable to text messaging as such.

“Consumer data” can be seen as falling into the definition of “personal data” for the purposes of the Personal Data (Privacy) Ordinance, which contains specific personal data principles.

The Personal Data (Privacy) Ordinance applies to the collection by a data user of any data subject, whether adult or child.

The Broadcast Codes prohibit a wide range of advertisements, participation in advertisements and the showing of advertisements with or to children, and they prohibit transmission of these advertisements at times within or in close proximity to programmes targeting children. 

There are no other important privacy rules specifically related to advertising in Hong Kong.

There are two main pieces of gambling-related legislation in place in Hong Kong which are the Gambling Ordinance (Chapter 148) and the Betting Duty Ordinance (Chapter 108).

The government has also issued Codes of Practice for the Conduct of Football Betting and Lotteries to give guidance on how the licensing conditions for football betting and lotteries may be complied with. Under these Codes, licensees should not advertise the 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.

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.

The Gambling Ordinance prohibits “gambling” which is defined to include gaming, betting and bookmaking.  “Gaming” is defined to be the playing of any game for winnings in money or other property, whether or not any person playing the game is at risk of losing any money or other property.

“Game” is defined to mean a game of chance, a game of chance and skill combined and a pretend game of chance or chance and skill combined, and also means any game in which a bank is kept by one or more players exclusively of the others. The definition goes on to include games where the chances of the game are not equally favourable to all the players, including among the players, the banker or other person by whom the game is managed or against whom the players stake, play or bet. A specific legislated exception to the absolute prohibition under the Gambling Ordinance is provided for a ”trade promotion competition”, which is defined to mean a competition or other scheme promoted, conducted or managed for the purpose of promoting a trade, business or the sale of any product.

It is further provided by the Gambling Ordinance that “gaming” is lawful if the game is (inter alia) a trade promotion competition, the organisation and conduct of which is authorised by a licence issued by a public officer.

As stated in 7.2 Contests of Skill and Games of Chance, any game of chance is illegal under the Gambling Ordinance, with the one exception being the authorisation by a public officer of a trade promotion competition where the rules and the identity of the promoter must be lodged with the public officer for prior approval.

The Trade Descriptions Ordinance prohibits any free or reduced-price offers which are false.

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 due to undue emphasis or distortion.

The Trade Descriptions Ordinance further provides that trade descriptions are specifically prohibited if there are false and misleading representations concerning the price of goods or of 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 clear that “free”, from the consumer viewpoint, means absolutely free of charge or cost.

The Consumer Council, established under the Consumer Council Ordinance, carries out surveys and issues announcements on consumer protection but has no statutory power to enforce compliance with its findings. However, the Consumer Council has circulated that contract terms that stipulate that the subscription for services will be automatically renewed on the expiry of a commitment period are considered to be unfair if there is no accompanying term requiring the supplier to give a clear and conspicuous written reminder to the consumer at a reasonable time before the contract expires, together with notice of any increase in fees or limitation of service.

The Industry Code of Practice for Telecommunications Service Contracts requires a contract to specify whether the service will continue to be provided to the customer after the expiry date and if the service is to continue after the expiry of the contract term, the contract must specify the charges as well as whether the provision of the service will have any changes and, unless otherwise agreed by a customer, the contract should not be automatically renewed upon expiry and should provide customers with a right of termination even if the customer has indicated their consent for automatic contact extensions or renewals.

However, the Office of the Communications Authority has published an advisory relating to the expiry of a contract with a fixed term and termination of a telecommunications service. The Communications Authority has announced that before the expiry of the contract term or switching to another operator, a customer should examine in detail the arrangement under the existing or new contract in relation to the expiry of the fixed term. 

It is clear that where a customer does not require service termination upon the expiry of the fixed term, the service will not be terminated automatically but will continue to be provided to the customer on a month-to-month basis with the relevant monthly fee.

The advantage of this practice is that the existing telecommunication service will not be terminated abruptly upon expiry of the fixed term thereby causing inconvenience to the customer who has not contacted the operator in advance of the expiry of the fixed term. The Communications Authority's advice here is that if the customer wishes to continue using the service provided by the same operator after the expiry of the fixed term, then the customer should consider renewing the contract or signing a new service contract with the operator concerned.

There are no rules or guidance related to the use of artificial intelligence in connection with the development of advertising content apart from the generally applicable regulation of advertising content, as indicated elsewhere in this article.

There are no special rules or guidance on making claims that a product is developed through the use of AI, is powered by AI or has AI-related capabilities.

There are no special rules or guidance related to the use of chatbots.

Some cryptocurrencies trading in Hong Kong are classified as securities and are therefore required to be regulated by the Securities and Futures Commission (SFC) and in the event of any breach of the SFC regulations, aggrieved parties can seek assistance from the SFC. There is currently no legal restriction on cryptocurrency advertising but careful examination of a cryptocurrency advertisement may enable an investor to take action or report an offence under the Trade Descriptions Ordinance.

The Financial Action Task Force, which is a body responsible for administering international standards aimed at preventing money laundering and terrorist financing, has issued updated guidance for a risk approach to virtual assets and virtual asset service providers.

The NFT is a representation of a different form of digital files ranging from photos, videos (and films) and digital art. The blockchain is used to store the NFT in a digital ledger as an encrypted and duplicated asset system on a chain of consecutively linked blocks. The NFT is a unique and secured certificate which is evidence that the holder is entitled to certified ownership of the NFT as a digital asset although the underlying copyright and any registered entitlement under the NFT is not part of and is not traded with the NFT unless there is an express contractual provision entitling and evidencing the passing of and corresponding entitlement of the holder. 

When and if created pursuant to a smart contract it is possible for that contract to provide for generation of a limited number of NFTs for the same artistic work and NFT is “minted”; ie, created by a process of constituting the NFT as a virtual asset on the blockchain and the creator of the NFT may be either an artist or a party with appropriate rights to entitle the minting by that person of an NFT into a digital asset.

The Virtual Asset can be represented as a digital value such as a “digital token”. If the digital token is a security token representing a security under the Securities and Futures Ordinance then the operating trader in the security token requires a licence for Type 1 (dealing in securities) and Type 7 (providing automated trading services), both as regulated activities.

With effect from 1 March 2023, the Securities and Futures Commission has administered a new licensing regime for Virtual Asset Service Providers with a nine month transition window. If a VASP operates in Hong Kong in active marketing to the public of the services of a VASP that is not licensed in Hong Kong, this is an offence punishable on conviction on indictment to a fine of HKD5,000,000 and to imprisonment for seven years and, in the case of a continuing offence, to a further fine of HKD100,000 for every day during which the offence continues.

The new regulation empowers the Secretary for Financial Services and the Treasury to prescribe by notice published in the Hong Kong Government Gazette whether a particular asset is to be considered as a virtual asset under the Anti-Money Laundering Ordinance (AMLO).

There are no special laws or regulations in the Hong Kong SAR applicable to advertising within the metaverse. Given that Hong Kong does not have an advertising standards authority and given that the Broadcast Codes expressly exclude the internet from definition as broadcast service, the Television and Radio Codes have no specific application to internet communication.

Food and Drugs

The Public Health and Municipal Services Ordinance makes it illegal to, inter alia, advertise for sale any drug with any substance added to or abstracted from it injuriously affecting its quality, constitution or potency and to 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.

Under the Food and Drugs (Composition and Labelling) Regulations, “advertisement” means any form of advertising intended for the general public which is published by any means including:

• newspaper or other publication;
• television or radio broadcast;
• electronic messages;
• display of notices, signs, labels, showcards or goods;
• distribution of samples, circulars, catalogues, pricelists or other materials; or
• exhibition of pictures, models or films,

and “advertise” shall be construed accordingly.

It is further provided that any person who advertises for sale any pre-packaged food which is not marked or labelled in compliance with the applicable regulation shall commit an offence and be liable to a fine and to imprisonment. If any person advertises for sale any pre-packaged food where the advertisement contains any nutrition claim that does not conform to the applicable regulation, that person commits an offence and is liable to a fine and to imprisonment.

Any person who advertises for sale any infant formula, follow-up formula or pre-packaged food for infants and young children that is not marked or labelled in compliance with the applicable regulation, commits an offence and is liable to a fine and to imprisonment.

The Undesirable Medical Advertisements Ordinance prohibits advertisements being published or being caused to be published which are likely to lead to the use of any medical appliance or treatment for certain diseases. It also prohibits printing, publishing or causing to be written, printed or published any advertisement for abortion.

Cigarettes

Under the Smoking (Public Health) Ordinance, 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 shall they display a tobacco advertisement unless it is in or upon the premises of a manufacturer of tobacco products or wholesaler or wholesale dealer, and in any such case, is not visible from outside the premises. It is also prohibited to broadcast a tobacco advertisement by radio or visible images, or to exhibit a tobacco advertisement by film or on the internet. See 10.3 Other Products for further detail.

Please see 2.11 Sponsor ID and Branded Content for the restrictions in the Television Code upon subliminal advertising by a television licensee or the authorising or permitting by such licensee of such subliminal advertising. See also the restriction in the Broadcast Codes from the showing of any presentation of advertisements to children’s programmes directed at young persons under the age of 18.

The Television Code specifically prohibits subliminal advertising by a television licensee on its television channels and in this connection “advertisement” or “advertising material” means any material that is effectively designed to advance the sale of a product or service or to promote the interests of any organisation, commercial concern or individual, and is included in the course of a programme. All such purely commercial promotional material must be clearly distinguished from the actual programme material and there are regulations limiting the time spent on advertisements in relation to actual programme material.

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 which, accordingly, 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.

The Smoking (Public Health) Ordinance (“the Smoking Ordinance”) prohibits printing, publishing or causing to be published a tobacco advertisement in any local newspaper or any printed document printed, published or distributed in Hong Kong and further prohibits printing, publishing or causing to be published a smoking product advertisement in any local newspaper or any printed document printed, published or distributed in Hong Kong.

In either case, the Smoking Ordinance provides that there is an exception for any tobacco advertisement or any smoking product advertisement in a printed publication which is published for the tobacco trade or the smoking products trade or as the “in-house magazine or publication of any company engaged in that trade”.

The Smoking Ordinance provides that no person shall broadcast a tobacco advertisement by transmission of sound by means of radio waves or by the transmission of visual images or sound by wireless or otherwise than by wireless intended for general reception by members of the public nor shall exhibit tobacco advertisement by film.

“A tobacco advertisement” is provided to be an advertisement if it:

• contains any express or implied inducement, suggestion or request to purchase or smoke cigarettes, cigarette tobacco, cigars or pipe tobacco;
• relates to smoking in terms which are calculated, expressly or impliedly, to promote or encourage the use of cigarettes, cigarette tobacco, cigars or pipe tobacco; or
• illustrates or mentions smoking or cigarettes, cigarette tobacco, cigars or pipe tobacco or their packages or qualities and it is further clarified that where an advertisement or any object other than a tobacco product which is displayed to the public, whether for sale or otherwise, in the course of conducting any business or providing any service also includes the name or trade name of any person associated with the marketing of any tobacco product, or any trademark or brand name of a tobacco product or any pictorial device or part thereof commonly associated therewith and this shall be deemed to be a tobacco advertisement.

“Smoking Product” is defined as “any cigarette, cigarette tobacco, cigar or pipe tobacco” and an alternative smoking product is defined as “including any one of several categories including a device (other than a water pipe) that is capable of:

• generating aerosol from any substance that is not tobacco or dangerous drug, other than by means of lighting the substance directly; and
• use for imitating conventional smoking or a device (other than a water pipe) that is capable of generating aerosol from tobacco, other than by means of lighting the tobacco directly; and
• used for smoking.” 

Further identified is “tobacco” that is packaged as being suitable for use with a device as defined and from which an aerosol is capable of being generated. A further identification is of “specified plant material” rolled up in any material, in a form that is capable of immediate use for imitating conventional smoking.

The Smoking Ordinance provides and defines that an advertisement is a smoking product advertisement if it:

• contains any express or implied inducement, suggestion or request to purchase or smoke any smoking product;
• relates to smoking in terms which are calculated, expressly or impliedly to promote or encourage the use of any smoking product; or
• illustrates or mentions smoking or any smoking product or their packages or qualities – it being further expressly provided that an advertisement is not regarded as a smoking product advertisement if its purpose is to discourage smoking with further fully detailed references to identify the prohibitive conditions and the ways in which the non-smoking content can be advertised or made available inclusive of the name of any company or body corporate associated with the manufacture or marketing of any smoking product or containing any name identical to the trade name or brand name of any smoking product not to be used in association with any product that is not a smoking product.

It is further provided that no person shall display or cause to be displayed or published or distribute for the purpose of display or cause to be published or distributed for the purpose of display any smoking product advertisement in writing or other permanent or semi-permanent form.

There is an exception for any smoking product advertisement in a printed publication that is published for the smoking products trade or as the in-house publication of any company engaged in that trade.

There is an exception that this restriction on display does not apply to any smoking product advertisement which is in or upon any premises of any manufacturer of conventional smoking products or any wholesale dealer dealing in conventional smoking products where those premises are used for the manufacturing of conventional smoking products or for the purpose of dealing by wholesale in conventional smoking products and is not visible from outside the premises.

The Smoking Ordinance further prohibits broadcast by any person of a smoking product advertisement by the transmission of sound by means of radio waves or by the transmission of visual images or sound by wireless or otherwise than by wireless, intended for general reception by members of the public.

The Smoking Ordinance further prohibits the exhibition of a smoking product advertisement by film.

The Smoking Ordinance goes further than other Hong Kong legislation in expressly stating that no person shall place or cause to be placed a tobacco advertisement or a smoking product advertisement on the Internet further providing that the holder of a Public Non-Exclusive Telecommunications Service Licence granted under the Telecommunications Ordinance shall not be responsible for content placed on the internet by a user unless that licensee has knowledge of the content and can reasonably be expected to block the use of such content or require amendment of such content or where access is provided by the licence holder to such content using automatic and temporary storage thereof by the licence holder due to the request of a user.

Under the Smoking Ordinance. no person shall promote or advertise any cigarette, cigarette tobacco, cigar or pipe tobacco defined as Conventional Smoking Products to any person under the age of 18 years. This prohibition is applicable to Conventional Smoking Products being made available by way of a token or as a prize in any event or competition with other related prohibitive measures.

It is further provided that no person may either manufacture or sell or offer for sale or carry out various other acts in relation to an alternative smoking product or give an alternative smoking product to another person for promotion or advertisement or in exchange for a token or as a prize in any event or competition.

Any reference to the acts prohibited in respect of alternative smoking products confirms that that act is a promotion or advertisement in relation to a product if that act is a promotion or advertisement as an inducement to smoke, or encourage the use of, the product, whether or not the particular brand is mentioned.

Reference in this restriction and prohibition to the sale of an alternative smoking product includes the sale of any product that includes or is accompanied by, an alternative smoking product as a gift but further provides that the reference does not include the sale of the product with a view to exporting the product.

The Undesirable Medical Advertisements Ordinance prohibits publishing, causing to be published of any advertisement likely to lead to the use of any medicine, surgical appliance or treatment for certain specified disease or condition but shall not apply to any advertisement published by or with the authority of the Director of Health or to an advertisement duly authorised by an officer of the Chinese People’s Liberation Army for dissemination only amongst members of the Chinese People’s Liberation Army.

The Undesirable Medical Advertisements Ordinance further prohibits advertisements relating to certain orally consumed products being further provided that the sale or supply, or offer or exposure for sale or supply of an orally consumed product in a labelled container or package shall constitute the publication of an advertisement.

This Ordinance provides that:

• no person shall in any manner write, print, or publish or cause to be written, printed or published any advertisement offering to procure miscarriage of women, the procuration of miscarriage of women, inviting or inducing the procuration of miscarriage of women and where any such advertisement gives the name, address or telephone number of, or indicates some other means of contacting, a person who manufactures or supplies medicine or surgical appliances; or
• any treatment that person is presumed until the contrary is proved, to have caused the advertisement to be published.

The Undesirable Medical Advertisements Ordinance prohibits any person from publishing or causing to be published any advertisement likely to lead to the use of any medicine, surgical appliance or treatment for treating human beings in purposes specified in the schedule to that Ordinance or offering to procure a miscarriage of women or canvasing or inviting or inducing the procuration of miscarriage of women.

The Control of Obscene and Indecent Articles Ordinance (“COIAO”) regulates the publication of obscene and indecent articles where “Article” is defined “to mean anything consisting of or containing material to be read or looked at (or both) any sound recording, any film, video-tape, disc or other record of a picture or pictures and the COIAO references the Obscene Articles Tribunal as enabled to classified Class 1 Articles and Class 2 Articles which are not indecent and Class 3 Articles which are obscene and are prohibited from publication.

The COIAO also regulates publication of obscene and indecent articles online.