- The Consumer Council (the Council) is pleased to submit its views with respect to the consultation document issued by the Communications Authority (CA) on the review of Television and Radio Codes of Practice (CoPs) relating to programme and advertising standards of television (TV) and radio broadcasting services[1], with a focus on protecting and advancing the interests of consumers.
Overall Views
- The Council understands that the main objective of CA’s review of the CoPs is to meet the changing needs of the broadcasting industry, especially in the face of the intensifying competition arising from the Internet-based media. The Council emphasises the paramount importance of protecting the interests of consumers as TV and radio audiences, particularly by ensuring that they are not excessively exposed to advertisements, which could be detrimental to their viewing experience. While reducing the compliance costs of licensees, consumers’ access to high quality broadcasting services should be maintained.
- In the following parts, the Council puts forward (i) its views on the changes proposed by the CA, and (ii) suggestions for further enhancement which concern consumer interests for the consideration of the CA.
(i) Views on the CA’s proposals
Relaxing Regulation of In-programme Sponsorship and Advertising Material for TV Programme Services (Question 1 and 3 of the consultation document)
- The Council notes that the revisions proposed in para. 15(a) and (c) of the consultation document about relaxing the regulation of sponsor identifications and promotional material for TV programmes will be replaced by general, overarching principles, instead of by detailed prescriptions. However, the Council deems it necessary for the CA to review whether the proposed general principles (i.e. sponsor identifications appearing in the programme should not be too frequent and distracting; claims shown should not be superlative unless they are capable of substantiation; direct exhortations to purchase or rent products/services should be prohibited; viewers should not be subject to hidden editorial influence, etc.) as stated in para. 15 (a) of the consultation document is comprehensive enough in terms of consumer protection.
- With reference to the Office of Communications (Ofcom) of the UK, its Ofcom Broadcasting Code requires that in-programme sponsorship material should not be unduly prominent, sponsorship credits should be brief and secondary, and that audiences are protected from the risk of financial harm[2]. The Council invites the CA to consider making more references from different jurisdictions and exploring the feasibility of integrating applicable concepts into the general principles.
Relaxing Regulation of Sponsorship of Children’s Programmes (Question 2)
- The Council notices that, unlike some other jurisdictions, there is no specific advertising laws to govern advertising activities which target children in Hong Kong. As children cannot always understand the advertising purpose of specific messages or visuals in the same way as adults, for the sake of prudence, the Council invites the CA to make reference to other jurisdictions to ensure that the local protection on children is on par with that of counterparts in other jurisdictions.
- To take Mainland China as an example, the National Radio and Television Administration issued the Provisions on the Administration of Programmes for Minors (未成年人節目管理規定) in 2019. Related rules ban using minors who are not yet 18 years old as advertising spokespersons and require that radio and television programmes for minors must not have in excess of 12 minutes of advertising per hour[3].
- With regard to the proposal to relax the regulation of sponsorship of children’s programmes, the Council is of the view that sufficient restrictions of sponsorship of children’s programmes are necessary for the protection of child viewers, given that the ability to understand promotional material could differ greatly among children of different age groups. The Council has reservation that a child viewer of young age will be able to clearly distinguish and comprehend sponsorship references. This being a precondition to the display of sponsorship references as proposed in para. 15 (b) of the consultation document, the CA should assess the possibility of enforcement impracticability.
- In addition, some products may not be suitable to be advertised indirectly in children’s programmes, for instance, body-slimming advertisements shown in children’s programmes may hinder them from developing a proper concept about body weight. The Council is of the view that since children’s lack of ability to distinguish between sponsored material and programme content, the CA should continue to strictly prohibit product placement or indirect advertising in children’s programmes (para. 13 of the consultation document).
Relaxing Regulation of Indirect Advertising for Sound Broadcasting Services (Question 4 and 5)
- The Council notes the proposal set out in para. 19 of the consultation document to permit indirect advertising in radio programmes, so that the regulation of radio advertising could be more aligned to that of TV advertising. Although similar ground rules of indirect advertising have already existed in the TV Advertisement Code, they might not be totally applicable to radio broadcasting as there exists a fundamental difference between TV and radio, i.e. one is audio-visual and the other is audio-only. For instance, while a TV viewer can easily identify the sponsor of a programme whenever he/she turns on the TV with the display of sponsorship references, it is not as easy for a radio listener to tell if there is indirect advertising when he/she turns on the radio in the middle of a programme. Therefore, the Council suggests that the CA should require radio broadcasters to hint at indirect advertising more frequently and obviously.
- For example, in the Television and Radio Advertising and Sponsorship Code issued by the Infocomm Media Development Authority of Singapore, it is required that on radio, sponsorship acknowledgements should be inserted at appropriate intervals to inform listeners that a programme or programme segment is sponsored[4]. Similar practice could be considered for indirect advertising in Hong Kong.
Claims Relating to Nutrition or Dietary Effect of Products and Services on TV and Radio (Question 9)
- The Council notes the proposal about removing the provisions governing the appearance of the person giving testimonial in the advertisements related to weight loss or reduction of body fat. The Council concurs that whether the person giving testimonial appears to be underweight is a subjective perception.
- Regarding advertisements with claims relating to nutrition or dietary effects, the Council considers that emphasis should be placed on the other rules set out in para. 21 of Chapter 6 of the TV Advertising Code and para. 27 of the Radio Advertising Code, for instance:
- claims for the nutritional value of food must be supported by sound scientific evidence;
- advertisements for dietary supplements must not state or imply that they are the only means to enhance normal good health;
- no advertisements should encourage patterns of behaviour which are prejudicial to health; and
- advertisements for products, services and establishments which offer or provide treatment aimed at the achievement of weight loss or reduction of body fatness must not be addressed to persons under the age of 18, among others.
- Meanwhile, the Council raises the phenomenon of companies using virtual images/ambassadors to encourage lifestyle or behaviour which may be injurious to health. The Council invites the CA to consider giving guidance to the industry on this aspect.
- Moreover, the Council notices an increasing trend regarding the consumption of wellness-related products and health food in Hong Kong, which are not currently covered in the Chapter 6 of the TV Advertising Code (sections on “medical preparations and treatments” and “claims relating to nutrition or dietary effects”) and para. 26-27 of the Radio Advertising Code. The Council considers that claims relating to these wellness-related products and services on TV and radio should also be monitored and considered for inclusion in the CoPs to safeguard the wellness of consumers.
Factual Claim Substantiated by Research or Testing in TV Advertising (Question 12 and 13)
- The Council supports the proposal that TV broadcasters can flexibly use QR codes as an alternative method of providing access to detailed information about products/services in advertisements where substantiation of factual claims is required (para. 45 of the consultation document). However, the Council recommends that the CA should also take digital divide issue into account. Despite the high penetration rates of mobile subscribers and household broadband in Hong Kong[5], there are still vulnerable groups, such as the elderly, who lack digital literacy and thus do not know how to use QR codes.
- The Council opines that basic information about the source and date of the factual claim shall be kept and shown together with the QR code in the advertisement, so that consumers could still be informed without accessing the corresponding webpage and have the information readily. The provision of QR code would facilitate those who want more details about the products/services, or the claims.
- Besides, the Council is concerned that the proposed requirement of ensuring the validity of the QR code and the accessibility of the corresponding webpage for a period of at least 120 days after the broadcast of the advertisement could cause uncertainty as there could be a huge difference depending on whether the first or the last broadcast is counted.
- For instance, when an advertisement is played for a period of three months and the validity is counted based on the first broadcast, consumers who see the advertisement on the last day of broadcast might have access to further information for only 30 more days, which might not be sufficient. To prevent confusion to licensees and safeguard consumers’ right to know, the Council deems it necessary to define clearly whether the first or the last broadcast shall be counted.
Advisory Message Requirement for Real Property Advertising on Radio (Question 14)
- While understanding the limitations of radio broadcasting, the Council agrees the proposal that a shorter version of the advisory message for real property advertising could be allowed for use on radio. Nevertheless, the Council is of the view that more concrete guidance should be provided by the CA. In addition to the full advisory message as set out in para. 22-23 of the Radio Advertising Code, the CA should consider issuing templates of the shorter version for reference of licensees, for ensuring the quality of the advisory message.
- Incidentally, the Council understands that in recent years, the purchase of properties outside Hong Kong (POH) is popular among Hong Kong consumers and there is an increase in the number of advertisements through various channels. The Council suggests that the CA may consider requesting the advertiser to inform consumers whether the estate agent of the POH is licensed under the Estate Agents Ordinance (Cap. 511) or not in the advisory message both on TV and radio.
(ii) Further Enhancement of the Industry
- In addition to the proposed changes set out in the consultation document, the Council suggests some areas of enhancement in the industry with a view to further protecting consumer interests.
Scope of the CoPs
- In recent years, it has been common for TV and radio licensees to upload programmes onto their official websites for consumers to watch or listen to on demand. In particular, live commerce is very popular nowadays, and there could be more diverse types of sponsorships in these online programmes. Furthermore, even for the same programme produced by the same broadcasting licensee, the content of in-programme sponsorship and advertising material could be different between the programme broadcasted on TV and the programme played online. The presentation of advertisements could also differ.
- The Council understands that the market competition between broadcasting licensees and other Internet media is intensifying. Nonetheless, from the consumer protection perspective, the Council believes the CoPs could be extended to cover the licensees’ official websites. To maintain licensees’ competitiveness, the suggested extension could be limited to licensees’ official websites only, while leeway could be given to their other online advertising. For example, on radio licensees’ webpages, a reminder about indirect advertising could be displayed while the sponsored programme is being replayed. Another example is that the full advisory message for real property advertising could be shown in text under the radio programme while the shorter version is being read out.
Advertising Activities Targeting Elderly Consumers
- There is an increasing number of advertisements targeting elderly consumers, ranging from elderly care products to food and clothes. For example, the Federal Trade Commission of the United States published a report called “Protecting Older Consumers 2021-2022”[6], in which, some undesirable advertising activities that targeted the elderly were reported, such as unsubstantiated product claims. The Council is of the view that the CA should consider keeping an eye on the advertisements targeting elderly population, as they are often more vulnerable because of cognitive, psychosocial, and/or physical problems.
- Although specific provisions on advertisements for the elderly is yet to be established in other jurisdictions, some general regulations are still worth referencing. For instance, under the Unfair Commercial Practices Directive in the European Union, it is desirable that the impact of a commercial practice that targets a particular group of consumers (of certain characteristics such as age, physical or mental infirmity or credulity that make consumers particularly susceptible to a commercial practice) should be assessed from the perspective of the average member of that group to ensure that they are adequately protected[7]. The CA might evaluate the necessity and viability of such kind of assessment.
Conclusion
- The Council hopes that the CA will take into consideration the above views in response to the consultation document to ensure that consumer interests will be safeguarded.
- Foreseeing considerable changes in the presentation of advertisements and programmes on both TV and radio when the revised CoPs come into effect, the Council expects the CA to closely monitor the compliance of the TV and radio broadcasters to ensure a smooth transition.
- The Council is aware that the business environment in the broadcasting industry is not only fast changing but also challenging for licensees. Fundamentally, the quality of programmes is the key to survive in this competitive market. With the increasing popularity of over-the-top (OTT) media service and live streaming platforms, the Council is glad to see that there are more choices of programmes for consumers. Meanwhile, local broadcasting licensees should keep up with the times to produce high quality programmes to attract consumers to watch their channels and thus traders to advertise. The Council believes that it is also important for the CA to regularly review the CoPs to provide up‑to‑date safeguard to consumers.
[1] The CoPs include the Generic Code of Practice on Television Programme Standards (“TV Programme Code”), the Generic Code of Practice on Television Advertising Standards (“TV Advertising Code”), the Radio Code of Practice on Programme Standards (“Radio Programme Code”) and the Radio Code of Practice on Advertising Standards (“Radio Advertising Code”).
[2] See https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code/section-nine-commercial-references-tv
