Hong Kong

Relevant legislation or guidelines

There is no single legislation regulating green claims in Hong Kong.

Advertisements on television and radio are regulated by the Generic Code of Practice on Television Advertising Standards (“Television Code”) and the Radio Code of Practice on Advertising Standards (“Radio Code”) issued under the Broadcasting Ordinance (Cap. 562).

In a consumer protection context, the Trade Descriptions Ordinance (Cap. 362) (“TDO”) prohibit certain specified unfair trade practices including false trade descriptions of goods and services, misleading omissions, aggressive commercial practices, bait advertising, bait-and-switch and wrongly accepting payment.

Is there any upcoming relevant legislation or guidelines?

No.

Who are the responsible authorities or bodies?

There is no single authority responsible for regulating green claims.

• The Communications Authority is primarily responsible for regulating and enforcing advertising standards on television and radio.
• The Customs and Excise Department is primarily responsible for regulating and enforcing trading standards under the TDO.
• There are also environmental and sustainability registration/certification programs operated by separate government departments and bodies. Examples include the Building Energy Efficiency Registration Scheme operated by the Electric and Mechanical Services Department, the Indoor Air Quality Scheme operated by the Environmental Protection Department and the Hong Kong Green Organisation Certification led by the Environmental Campaign Committee alongside the Environmental Protection Department. Green claims under such programs would need to comply with the requirements set by the relevant certifying bodies.

What are the enforcement measures?

The Customs and Exercise Department is primarily responsible for taking enforcement actions under the TDO.

Possible penalties for a breach under the TDO include:

• A fine of up to HKD500,000 and imprisonment for five years on conviction on indictment, and up to a fine of HKD100,000 and imprisonment for two years on summary conviction.
• Compensation awarded by the court.
• Instead of criminal proceedings, a written undertaking from the offender to stop the infringing conduct is also possible.
• An injunction could be obtained from the courts where a person has engaged, is engaging or is likely to engage in infringing conducts under the TDO.

The Communications Authority is mainly responsible for taking enforcement actions under the Broadcasting Ordinance. Possible penalties include:

• Fines up to HKD200,000 for the first occasion a penalty is imposed, up to HKD400,000 for the second occasion, and HKD1 million for any subsequent occasion.
• Provision of a correction or apology.
• Suspension of licence.
• Revocation of licence.

Who can pursue infringements?

Other than enforcement by the Communications Authority and the Customs and Excise Department, private parties may have a claim in contract or in tort against false or misleading statements if they suffer a loss as a result of such statements.

What are the general rules of thumb for green claims?

• In a consumer protection context, green claims should comply with the requirements of the TDO. Businesses should avoid applying trade descriptions in relation to goods or services or employ commercial practices which are false or misleading in breach of the TDO.
• Television or radio advertisements should comply with the requirements under the Television Code and Radio Code.
• Other than the above, businesses should consider whether any industry or sector specific regulations may apply when making green claims.
• Financial regulatory laws and regulation may apply in the context of green claims in the offering or selling of financial or investment products. For example, where a fund incorporates ESG factors as a key focus of investment, fund managers have the duty to ensure that the marketing materials for such funds are not false, biased, misleading or deceptive.

Do green claims need to be substantiated by evidence?

In relation to television advertisements, Chapter 4 of the Television Code provides that all factual claims should be capable of substantiation.

• Where a factual claim is substantiated by research or testing based on the advertiser’s own assessment or work done at the advertiser’s request, the source and date of the assessment or research should be indicated in the advertisement.
• No advertisement may misleadingly claim or imply that the product or service advertised, or any ingredient of it, has some special features or compositions which is incapable of being established.
• Irrelevant data and scientific jargon must not be used to make claims appear to have a scientific basis they do not possess. Statistics of limited validity must not be presented in such a way as to make it appear that they are universally true.
• Information conveyed must be accurate and not misleading by concealing or failing to make clear significant facts.

Similar provisions are also found under the Radio Code in relation to radio advertisements.