Advertising Cases in Hong Kong

1
Advertising Cases in Hong Kong

• Legal and Ethical Issues of Advertising

2
Control of BA for TV and Radio Ads

• If there is prima facie evidence of a breach, the
  complaint may be referred to the Broadcast
  Authority Complaints Committee (BACC) for
  consideration.
• According to provisions
• Broadcasting Authority Ordinance (Cap 391)
• Television (Advertising) Regulation (Cap 521)
• Generic Code of Practice on Television
  Advertising / Programme Standards.
• Generic Code of Practice on Radio Advertising /
  Programme Standards.
• Radio Code of Practice on Advertising / Programme
  Standards

3
Sanctions

• Depending on the severity and nature of the
  breach, the BA may impose one of the following
  sanctions
• Advice or strong advice
• The licensee is advised or strongly advised to
  observe more carefully the relevant provisions.
• Warning or serious warning
• The BA takes a serious view of the contravention
  and the licensee is warned or seriously warned
  against further contraventions.
• Issues Correction or Apology
• In the case of a serious breach, the BA may
  require the licensee to include a correction or
  apology or both, in its service.

4
Sanctions

• Financial Penalty
• For a breach which the BA considers to be of a
  very serious nature, a financial penalty may be
  imposed on the licensee.
• Suspension or Revocation of License
• In very serious cases, BA may suspend a license
  (up to 30 days) or conduct an inquiry and revoke
  or make a recommendation to the Chief Executive
  in Council to revoke a license.

5
??

• ??????????????????,??????
• (a) ???????
• ???????????????,??????????
• (b) ???????
• ?????????????,???????????????????
• (c) ?????/?????
• ????????,?????????????????????/??????
• (d) ??
• ??????????????,???????????
• (e) ?????????
• ?????????,??????????????(??30?),???????,??????????
  ????????????(????????)?

6
Minor Breaches

• In some instances where the breaches are minor,
  Commissioner for Television and Entertainment
  Licensing (CTEL), acting under BAs delegated
  authority, may deal with these cases and remind
  the broadcasters suitably.
• All complaints will eventually be referred to the
  broadcasters concerned for their reference.

7
Appeal

• A licensee who is aggrieved by the decision of
  the BA may appeal by way of petition to the Chief
  Executive in Council

8
DIAMOND ENERGY WATER

• Channel
• Commercial Radio 1, 2.7. 2004, 10!5 a.m.
• Complaint
• A member of the public complained that the ad was
  misleading.
• Relevant Provisions
• Radio Code of Practice on Advertising Standards
• Paragraph 9(c) prohibits the presentation of
  false, misleading or deceptive advertising.

9
DIAMOND ENERGY WATER

• Assessment by Broadcasting Authority
• The factual claims in the ad could not be
  substantiated by Commercial Radios supporting
  documents, having regard to the following
• The documents did not make reference to published
  medical or scientific literature
• The claim that Diamond Energy Water ????? was
  not supported by current medical or scientific
  literature
• Commercial Radio did not provide any objective
  scientific evidence of molecule clusters and
  easy absorption of the smaller clusters of
  Diamond Energy Water by human.

10
DIAMOND ENERGY WATER

• Therefore the BA concluded that there was no
  scientific evidence to establish the relationship
  between the capabilities of the advertised
  product and the result of the experiments
  indicated in the documents.
• Commercial Radio had not exercised due diligence
  / responsibility in ascertaining the truthfulness
  of the claims.

11
DIAMOND ENERGY WATER

• Decision
• BA considered the complaint justified.
• Commercial Radio was strongly advised to observe
  more closely the relevant provisions.

12
FANCL FENATTY SKIN CARE

• Channel
• TVB Jade, 12.11.2003, 1121 pm
• Complaint
• The advertised product with the exclusive LML
  revitalizing factor that helps to put the
  keratinocytes (corneocytes) into better order
  (?????????), so that the nutrients could reach
  the bottom skin, was exaggerated and lacked
  medical evidence.

13
FANCL FENATTY SKIN CARE

• Relevant Provisions
• Generic Code of Practice on Television
  Advertising Standards
• Chapter 3, para 9
• Truthful presentation
• Chapter 4, para 1, 2, 5 and 6
• Substantiation of factual claims and
  misleadingness of advertisements

14
FANCL FENATTY SKIN CARE

• Assessment by Broadcasting Authority
• Regarding the evidence / support
• BA noted the advice of the Department of Health
  that the LML revitalizing factor could produce
  the desired effect of the skin as claimed in the
  advertisement.
• This aspect of the complaint was unjustified.

15
FANCL FENATTY SKIN CARE

• Regarding the claim
• The term LML???? gave the impression that it
  was a common scientific term.
• The advertisement did not spell out clearly that
  it was just a name for exclusive use by FANCL,
  and that it referred only to the unique
  formulation of Polyquaternium-51, which was
  itself a popular ingredient for Japanese cosmetic
  product.
• The claim exclusive would convey to the average
  viewer the meaning of exclusivity that other
  people do not have it.
• In the context of the ad, ?? would likely
  mislead the average viewer into believing that
  ?? referred to an ingredient exclusive to the
  product itself.

16
FANCL FENATTY SKIN CARE

• But in fact, the said ingredient was basically
  Polyquarternium-51 which could be found in many
  other cosmetic products.
• BA noted that TVB passed the use of exclusive
  claim on the basis that it was not aware that
  there was other competing products in the
  industry and employed the same terminology.
• TVB did not obtain any substantive proof
  substantiating the claim.
• BA considered that TVB had not exercised due
  diligence when vetting the exclusive claim.

17
FANCL FENATTY SKIN CARE

• Decision
• BA considered the complaint justified.
• TVB be advised to observe more closely para. 1 of
  Chapter 4 of the Generic Code of Practice on
  Television Advertising Standards.

18
"Be a Lady - SLIMAX"

• Channel
• Television Advertisement for ??D - SLIMAX????
• Cable News Channel, 11.5.2006, 157pm

19
"Be a Lady - SLIMAX"

• Complaint
• Two members of the public complained that the
  claims that the advertised product "SLIMAX" could
  detoxify the body (??) and that the accompanying
  therapeutic course could enlarge one's breasts
  (???CUP??) were misleading and without scientific
  evidence.

20
"Be a Lady - SLIMAX"

• Relevant Provisions
• Generic Code of Practice on Television
  Advertising Standards-paragraph 9 of Chapter 3
  on truthful presentation-paragraph 5 of Chapter
  4 on misleading claims

21
"Be a Lady - SLIMAX"

• Assessment
• The BA considered that the remarks under concern
  "??", "???,???" and "???CUP??" in the
  advertisement were not specific claims which
  required substantiation. As such, the
  advertisement under concern did not contravene
  the relevant provisions in the Generic Code of
  Practice on Television Advertising Standards.

22
"Be a Lady - SLIMAX"

• Decision
• The BA considered the complaints unjustified and
  decided that no further action be taken against
  HKCTV.

23
HONG KONG SCHOOL OF MOTORING

• Channel
• ATV Home, 3.10.2003, 1102pm 5.10.2003, 1233am,
  9.10.2003, 6 57pm 11.10.2003, 1002pm
  1102pm
• TVB Jade, 10.10.2003, 712am 11.10.2003, 757am
  and 826am.

24
HONG KONG SCHOOL OF MOTORING

• Complaint
• The claims ?????,????? and ????????? in the
  ad were misleading as the guarantee offered by
  the Hong Kong School of Motoring (HKSM) for
  retaking driving test lasted for a year only and
  there are extra costs.

25
HONG KONG SCHOOL OF MOTORING

• Relevant Provisions
• Generic Code of Practice on Television
  Advertising Standards
• Chapter 3, para 9
• Truthful presentation
• Chapter 4, para 1
• Substantiation of factual claims

26
HONG KONG SCHOOL OF MOTORING

• Assessment by Broadcasting Authority
• The package fee 4,800 did not cover the
  simulated driving programme, expenses charged by
  the relevant authorities and car rental for
  taking the road test, and that the guarantee for
  retaking the driving examinations was for one
  year only.
• Therefore BA considered the term ?? misleading.
• As regards the claim ?????, BA considered that
  unless there was no time limit on the guarantee,
  the claim could not be substantiated.

27
HONG KONG SCHOOL OF MOTORING

• The use of the term ??? in the claim
  ????????? also gave viewers the impression that
  there was no time to the validity of the
  guarantee.
• BA therefore considered that the claims
  ?????,????? and ????????? were misleading.
• The licensees had not obtained the detailed terms
  and conditions of the offer from the advertiser
  when it vetted the ad.
• They had not exercised due diligence in
  ascertaining the truthfulness of the factual
  claims.

28
HONG KONG SCHOOL OF MOTORING

• Decision
• BA considered the complaint justified.
• ATV and TVB be advised to observe more closely
  the relevant provisions.

29
FOOTBALL BETTING

• Channel
• Commercial Radio 1, 2.5.2004, 1100am-1200noon
• Complaint
• An ad for football betting (?????)) was broadcast
  within the radio programme Play! Kids!
  Play!(?????) which involved the participation of
  children.

30
FOOTBALL BETTING

• Relevant Provisions
• Radio Code of Practice on Advertising Standards
• Para 11(h)(i)
• Advertisements for football betting should not be
  broadcast between 400pm and 830pm each day or
  at other times when radio programmes, in the
  opinion of the BA, targeting young persons under
  the age of 18.

31
FOOTBALL BETTING

• Assessment by Broadcast Authority
• The broadcast of an ad for football betting
  within the advertising break of a programme
  targeting children was unacceptable.

32
FOOTBALL BETTING

• Decision
• BA considered the complaint justified.
• CR be advised to observe more closely the
  relevant provisions.

33
MARK SIX

• Channel
• Commercial Radio 1, 1.8.2003, 1015am-1200noon
• Complaint
• A member of the public appealed against CTELs
  decision on the complaints about the radio ad.
• The substance of the complaint was that the
  remark ?????????,?????????) , in particular the
  use of the term ?? promoted gambling among
  children and students.

34
MARK SIX

• Appeal
• Those who had summer holidays were mainly from
  the education sector and most of them were
  students below 16.
• The ad was broadcast before the programme
  ????,???? which appeal to young listeners.
• The ad had the effect of encouraging children and
  students to gamble.

35
MARK SIX

• Relevant Provisions
• Radio Code of Practice on Advertising Standards
• Para 4
• Governing the compliance of ad matters with the
  Radio Code of Practice on Advertising Standards
• Para 11(h)(i)
• Governing the scheduling of ads specifically
  concerned with betting.

36
MARK SIX

• Relevant Provisions
• Radio Code of Practice on Programme Standards
• Para 17
• Governing the licensees responsibility toward
  children and young persons.
• Para 53
• Governing the application of Radio Code of
  Practice on Programme Standards on radio ads.

37
MARK SIX

• Assessment by Broadcasting Authority
• The term ?? was a common expression to indicate
  the summer months of a year. It should not be
  limited to mean the summer holidays of schools.
• The ad did not have the effect of promoting
  gambling among children and students.
• It was acceptable for broadcast before the radio
  programme ????,???? which was targeted at an
  adult audience.

38
MARK SIX

• Decision
• The appeal was not justified.
• BA decided that CTELs previous decision in
  classifying the complaint as unsubstantiated be
  upheld.

39
SmartTone Vodafone ???

• Placement
• ????, ???????,????????????????????????,??????????
  ????????)

40
SmartTone Vodafone ???

• Complaint
• ????????,?????????????????????????,???????????,???
  ????,??????

41
SmartTone Vodafone ???

• Relevant Provisions
• ????????-????-?5??1(e)?????????????????????????
  ??????-?5??1(f)?????????????(?108?)???????????,
  ??????????????????????,???????????

42
SmartTone Vodafone ???

• Assessment by Broadcasting Authority
• ?????,?????????????????,????????,??????????????,??
  ???????????,????????????????????????????????,?????
  ??????????????,???????????

43
SmartTone Vodafone ???

• Decision
• ?????????,????????????,??????????????

44
Budweiser ????

• Placement
• ???????
• ?????????
• ????????

45
Budweiser ????

• Complaint
• ????????,?????????????,??????????
• ??????????,??????????????,????????????????

46
Budweiser ????

• Relevant Provisions
• ????????-????
• ?6??2(i) ??????????????18???????????????????????
  

47
Budweiser ????

• Assessment by Broadcasting Authority
• ?????,??????????????18????????????????????????,???
  ?????????,????????????????

48
Budweiser ????

• Decision
• ?????????,???????????,??????????????

49
NEW WORLD MOBILITY - PLUMBER

• Channel
• L ong version (??)
• Cable News 2, 24.9.2004, 958 pm
• Short version
• ATV Home, 26.9.2004, 615pm TVB Jade, 24.9.2004,
  846pm, Cable News 2, 11.10.2004, 1027pm

50
NEW WORLD MOBILITY - PLUMBER

• Complaint
• The ad portrayed sexual fantasy, was indecent and
  disgusting, amounted to denigration or insult to
  women and plumbers, carried a bad theme, exerted
  a bad influence on children and was unsuitable
  for broadcast within the family viewing hours.

51
NEW WORLD MOBILITY - PLUMBER

• Relevant Provisions
• Generic Code of Practice on Television
  Advertising Standards
• Chapter 3, Para 2
• All advertising material must comply with the
  Generic Code of Practice on Television
  Advertising Standards
• Chapter 3, Para 7
• Presentation of ads with courtesy and good taste.
  

52
NEW WORLD MOBILITY - PLUMBER

• Relevant Provisions
• Generic Code of Practice on Television Programme
  Standards
• Chapter 2, Para 2
• Family viewing hours
• Chapter 3, para 1
• programmes should avoid needlessly offending
  viewers.
• Chapter 3, Para 2 (a)
• Indecency or material of bad taste.
• Chapter 3, Para 2 (b)
• Denigration or insult on the basis of gender or
  social status.
• Chapter 5, Para 1
• Due care in treatment of sex and nudity
• Chapter 7, Para 1
• Protection of children.

53
NEW WORLD MOBILITY - PLUMBER

• Assessment by Broadcasting Authority
• BA was of the view that nothing indecent or of a
  denigrating nature was found in the ad.
• Presentation of the ad as a whole was restrained
  and acceptable for broadcast at the scheduled
  hours.

54
NEW WORLD MOBILITY - PLUMBER

• Decision
• The complaint was not justified.
• BA decided no further action be taken against
  ATV, TVB and HKCTV.

55
????V3i????

• Placement
• ???????,??????????????????????,??????????????????
  now????ESPN??(??????????(????)),????????????????
  ??

56
????V3i????

• Complaint
• ????????,????????????????????????,????,???????????
  ???,????????????????????????????????????

57
????V3i????

• Relevant Provisions
• ????????-????-?3??2?????????????????????-????
  ???-?3??7????????
• ????????-????-?6??3??????????????????????-?6??
  10??????????????????????

58
????V3i????

• Assessment
• ?????,??????????????????,????????????????,????????
  ?????????,?????????????????????,??????????????,???
  ?????????????????????,?????????????????????,??????
  ??????,??????????????

59
????V3i????

• Judgment
• ?????????,????????????????????,??????????????-???
  ??3??2???7?????????-?????6??3?(???????)
  ??6??10?(????????????)????