Public Consultation on Draft Enforcement Guidelines of Trade Descriptions (Unfair Trade Practices)(Amendment) Ordinance 2012

The Customs and Excise Department (C&ED) and the Office of the Communications Authority (OFCA) today (December 7) launched a public consultation on the draft “Compliance and Enforcement Policy Statement” and “General Guidelines” (collectively the “Enforcement Guidelines”) concerning the Trade Descriptions (Unfair Trade Practices) (Amendment) Ordinance 2012 (Amendment Ordinance). The consultation will last for six weeks till January 17, 2013.

The Amendment Ordinance, enacted on July 17 this year, amends the existing Trade Descriptions Ordinance (Cap. 362) by prohibiting specified unfair trade practices that may be deployed by traders against consumers and strengthening the enforcement mechanism. The C&ED is the principal agency responsible for enforcing the new fair trading sections.

Concurrent jurisdiction is conferred on the Communications Authority (CA), with the OFCA as its executive arm, to enforce the new fair trading sections in relation to the commercial practices of licensees under the Telecommunications Ordinance (Cap. 106) and the Broadcasting Ordinance (Cap. 562) that are directly connected with the provision of a telecommunications or broadcasting service under the relevant Ordinances.  When the Amendment Ordinance commences operation, the existing provision under the Telecommunications Ordinance concerning prohibition of misleading or deceptive conduct of telecommunications licensees will be repealed and enforcement against such conduct will be made under the new cross-sector regime.

Announcing details of the public consultation at a press conference, the Commissioner of Customs and Excise, Mr Clement Cheung, said the aim of the consultation was to solicit views from stakeholders, relevant business sectors and the general public on the draft Enforcement Guidelines setting out the manner in which the two enforcement agencies would exercise their powers under the new fair trading sections of the Amendment Ordinance and providing guidance on the operation of the provisions for compliance by traders.

Mr Cheung also hoped that the consultation exercise could promote consumers’ understanding and awareness of the new fair trading provisions, as well as how their rights would be protected under the Amendment Ordinance.

The Amendment Ordinance is expected to come into operation by the second quarter of 2013.

The key amendments introduced in the Amendment Ordinance include:

1. the expansion of the definition of trade descriptions in relation to goods, as well as the extension of the scope to cover services;
2. the creation of new criminal offences on unfair trade practices, namely misleading omissions, aggressive commercial practices, bait advertising, bait-and-switch and wrongly accepting payment;
3. the introduction of a compliance-based mechanism under which civil enforcement options, namely the acceptance of undertaking from traders and the seeking of injunction from the court where necessary, can be drawn on to promote compliance with the new fair trading sections introduced by the Amendment Ordinance; and
4. the creation of a new private right of action for damages to facilitate consumer redress.

The draft Guidelines can be found on the websites of C&ED at www.customs.gov.hk, CA at www.coms-auth.hk, GovHK at www.gov.hk and Consumer Council at www.consumer.org.hk.  Hardcopies of the draft Guidelines are available at the following venues:

• Customs and Excise Department Customer Service Centre at 3/F., Customs Headquarters Building, 222 Java Road, North Point, Hong Kong;
• Office of the Communications Authority at 29/F., Wu Chung House, 213 Queen’s Road East, Wan Chai;
• Public Enquiry Service Centres of the Home Affairs Department;
• Consumer Council North Point Advisory Centre at Room 1404, 14/F., Kodak House II, 39 Healthy Street East, North Point, Hong Kong;
• Consumer Council Tsim Sha Tsui Advisory Centre at 3 Ashley Road, Tsim Sha Tsui, Kowloon; and
• Travel Industry Council of Hong Kong at Room 1706-9, Fortress Tower, 250 King's Road, North Point, Hong Kong.

Comments on the draft Guidelines should be submitted by mail, facsimile or email on or before 17 January 2013 to C&ED’s Trade Description Ordinance Special Planning Group, 14/F., Trade and Industry Department Tower, 700 Nathan Road, Mongkok, Kowloon, fax number 2398 0596 and E-mail address at guidelinescon@customs.gov.hk.

Apart from written submissions, the public and interested parties are welcome to participate in a number of consultation forums for traders and the general public. Details of the forums are available at the websites of C&ED, CA and GovHK.  For enquiries, please call the hotlines of C&ED at 3403 6063 and OFCA at 2961 6325.

Commissioner of Customs and Excise
Communications Authority

7 December 2012