A local herbal chain store sank deeper into controversy with a university study finding that its turtle herbal jelly contained almost no turtle shell. The health minister has now referred the Hoi Tin Tong to customs officials to see whether it has breached the trade descriptions ordinance—SCMP September 2013
To avoid finding themselves in a similar situation PR practitioners in Hong Kong need to understand the trade descriptions laws in Hong Kong, in particular the Trade Descriptions (Unfair Practices) (Amendment) Ordinance 2012 that came into force in July 2013. This amendment significantly increased the scope of the Trade Descriptions Ordinance (Cap 362) and contained a number of changes that PR and marketing practitioners need to be aware of, not least because a breach could result in a fine and five years in prison.
The key points of the new amendment with respect to false trade descriptions are:
- It has been extended to cover services as well as goods,
- For goods, B2B is now included along with B2C; for services it is just B2C,
- There is no need for an actual sale to be completed for an offence to be committed, and
- A “trade description” means a description conveyed by any method advertising, PR, brochure, labels, presentations, trade shows, Twitter, Weibo etc.
The amendment also covers misleading omissions. The important phrase is:
A commercial practice is a misleading omission if it:
- omits/hides/provides unclear, unintelligible, ambiguous or untimely material information; or
- fails to identify its commercial intent
that causes the average consumer to make a transactional decision that he would not have made otherwise.
You simply cannot leave out any information that an “average consumer” needs to decide whether to buy or not. And, as before, an actual purchase is not required for an offence to be committed.
The amendment offers a number of defences in the face of a possible offence, your lawyer can give you more detail. The key point to stress is that the defendant / agency has to take all reasonable precautions and exercised all due diligence to avoid the commission of an offence.
So the next time you sit down to write that product launch press release, brochure copy or Facebook post, take care to accurately describe the goods and services; include all the important information; don’t exaggerate, don’t omit, and if unsure, check; and finally, get approval in writing from the client.
We recommend you talk to your legal advisors and brief your staff on these important changes.
The CPRFHK is not a legal advisor and doesn’t purport that this content is legal advice.