Commercial and professional advertising in Hong Kong: medical, legal, price disclosure, comparative advertising, proportionality test, judicial review, reform

… all professional service providers such as doctors, dentists, lawyers and accountants were prevented from advertising by restrictions … reasoning behind these restrictions was equally uni…

… professional accounting bodies in most English-speaking countries have relaxed restrictions on advertising and other marketing … of marketing, especially advertising, by professional …

The chapter surveys the use of proportionality reasoning in medical law, attempting to analyse the different requirements entailed by proportionality, and highlight some potential deficiencies of proportionality reasoning in the domain of medical law. The chapter suggests some jurisprudential, moral, and institutional questions raised by the application of proportionality. It focuses on a prominent use of proportionality in this field: the application of the proportionality test in human rights cases concerning assisted suicide and euthanasia. It concludes that although the use of proportionality in human rights cases is open to important challenges, other uses of proportionality in medical law and ethics are less problematic.

The proportionality principle is used in constitutional law and administrative law worldwide. We argue that this doctrinal method is theoretically flawed and often practically not useful. Our major arguments are that, first, the proportionality principle is an ill-suited tool for legislative and administrative decision-making because it in essence is an incomplete form of cost-benefit analysis, as it systematically ignores certain costs and benefits. Welfare-maximizing measures as a result may fail to pass the test of proportionality analysis. Second, representative of legal scholars’ efforts to theorize proportionality, the German theorist Robert Alexy’s influential Paretian formulation of the proportionality principle makes it either toothless or fatal. Alexy’s weight formula is not useful in comparing multiple means. Third, the use of the proportionality principle for constitutional review by courts may create an undesirable ex ante effect and may fall prey to its inherent loss aversion which cannot be easily avoided through re-framing.

… Constitutional judicial review has often … judicial review and public opinion could ever mutually reinforce in the absence of viable representative institutions. Evidence from Hong Kong …

… , including the former Bar Association chair and retired Court of Final Appeal judge, Henry … the judicial review system has been abused in Hong Kong. According to him, ‘judicial review …

The rise of the regulatory state, compounded by political polarization, in the Hong Kong Special Administrative Region of the People’s Republic of China has opened up opportunities for its common law courts to substantively review the lawfulness of an array of governmental actions. Through the development of doctrines on reasonableness review and substantive legitimate expectation, the Hong Kong judiciary has sought to assert its relevance by nudging, incentivizing, and, at times, compelling the local government to deliberate and reason carefully before the latter implements decisions that restrict the citizenry’s rights and interests. Nevertheless, the courts have consistently under-enforced these doctrines in actual cases, affirming the lawfulness of administrative acts in the vast majority of substantive review cases that come before them. The hallmark of Hong Kong’s autochthonous administrative law, a legal transplant sourced from England, but indigenized and grown in Chinese soil, is thus characterized by liberal rhetoric paired with limited judicial intervention in practice.

… , ‘specific legislations, or policies or decisions of the Government’ would be challenged in court on ‘an ad-hoc basis, resulting in an incoherent state of the law at different times.’…

… This article then moves on to consider the functions of judicial review in Hong Kong; specifically, whether the imperatives used to support the continuation of Wednesbury …

… judicial review in Hong Kong. This paper examines these latest decisions of the Hong Kong … far-reaching and open-textured ground of judicial review based on “fairness” than has been …

… We have selected six key cases that represent significant judicial review and constitutional moments in Hong Kong. In evaluating these cases we will consider, inter alia, the pathways …

Hong Kong’s system of administrative law has drawn strength and durability from its English counterpart, on which it was heavily modelled. Too often, however, there is a slavish acceptance of the pre-eminence of English law and a tendency to conservativism and a lack of innovation. This article argues that Hong Kong courts and legislators must dare to diverge from English law where an alternative path would prove more credible or appropriate. Three prisms are deployed through which to argue that a misplaced emulation of English law can result in a poor legal framework. First, it is shown that a failure to properly conceptualize error of law as a ground of judicial review has resulted in a ground that, locally, is in a state of incoherence and disarray and that the admission or non-admission of a distinction between jurisdictional and non-jurisdictional errors urgently requires clarification from the Court of Final Appeal. Second, it is proposed that the English-inspired incorporation of a specific time limit in the rules for applying for judicial review should be abolished in the interests of access to justice and legal certainty, drawing on the experience of jurisdictions such as New Zealand, Canada, and Scotland. Finally, it is explained why the antiquated system of administrative tribunals in Hong Kong, redolent of the unreformed English tribunal system of decades past, needs comprehensive structural and procedural redesign. Courts and legislators must dare to diverge in these areas, with Hong Kong’s administrative law standing on its own two feet, where minds are focused on a genuine, locally crafted improvement of standards prevailing in administrative law and public administration.

… acknowledge the important intersection between the speech of legal professionals and constitutional rights. Thus, the Court has invalidated restrictions on lawyers' solicitation of …

… professional ethics but also of our capitalist ethos. At least part of what is disturbing about personal injury solicitation … time, place, and manner restrictions suggested in an earlier draft of …

… a colloquial rather than legal sense. In technical terms, the profession does not enjoy a monopoly in providing legal services; its conduct in restricting entry and negotiating agreements …

… Restrictions on advertising, solicitation and tradename use … analyses of professional promotion restrictions plainly appears in … society for restrictions on advertising, solicitation and other …

… Principal Deputy Solicitor General about the government's position on professional speech.… In Zauderer, the Supreme Court distinguished restrictions on commercial speech from …

… -standing professional prohibitions against the use of advertising, though … advertising rules by professional bodies, advertising is still being underutilised by professionals in Hong Kong…

PurposeThe study aims to investigate consumers' attitudes toward advertising by medical professionals, and how the attitudes vary among different demographic groups.Design/methodology/approachA survey using quota sampling was conducted. Altogether 1,297 adults aged 20 or above in Hong Kong filled in an online questionnaire in March 2012.FindingsConsumers' attitudes toward advertising by medical professionals were in general favorable. Respondents reported that advertising by medical professionals provides consumers with information about the services and qualifications of practitioners. However, consumers were worried about misleading information in these advertisements. Respondents perceived strongly that advertising by medical professionals would lead to an increase in the price of services. Younger respondents and respondents with higher education were more sceptical toward advertising by medical professionals.Practical implicationsMedical professionals should put emphasis on providing consumers with relevant information of their services, expertise, and qualifications to assist consumers' information search. They should refrain from using price appeal.Originality/valueThis is the first study to examine consumers' attitudes toward advertising by medical professionals in a Chinese context.

… in advertising rules concerning lawyers in Hong Kong has been a recent phenomenon. It was not until 1996 that Hong Kong … of Hong Kong consumers toward professional advertising …

… The loopholes in the TAPS regulations in Hong Kong have left majority of the population directly or indirectly exposed to tobacco promotion. Display of cigarette packs and brand …

… to provide a comprehensive and yet practical road map for comparative analysis of government advertising regulations. … to government advertising regulations in China, Hong Kong, and …

… the rules and laws related to advertising regulation. Many other media and business laws regulate advertising … Advertising regulations and professional codes are in fact subsets of the …

… This restriction has gained virtually universal support … , professional accounting bodies in most English-speaking countries have relaxed restrictions on advertising and other marketing …

… -scale advertising agency in Hong Kong, I show that although the advertising creatives in … of production times, the marginalization of Hong Kong’s advertising industry, and the loss of …

… aggressive marketing tactics such as comparative advertising.… advertising should be encouraged in Hong Kong. It is an … in several countries that trade with Hong Kong (notably the UK, …

… Federal Trade Commission (FTC) guidelines are integrated to discuss whether comparative … focuses on comparative price advertising, the general topic of comparative advertising is …

… Thus, the effects of comparative advertisements on search … Although it appears that current laws are adequate, a lack of a … sellers about the FTC guidelines and then aggressively …

… level of price comparison, mandatory price reporting indeed … A regulation on the supply side leads to changes in consumer … prices and the equilibrium price comparison intensity in a …

Purpose: The aim of this study is to present the subject matter of comparative advertising by trying to specify its legal boundaries. Design/Methodology/Approach: The purpose is achieved by an analysis of legal regulations as well as views of legal scholars and commentators and the established line of judicial decisions. Additionally, the article presents numerous examples of comparative advertising and investigates them in the context of compliance with regulations in force and their impact on a broadly understood competition law. Moreover, to complete the investigation, a research problem is formulated in the form of facts gathered by the author, which are then examined in the light of regulations pertaining to comparative advertising. Findings: Lawful comparative advertising may unquestionably contribute to the development of competition and at the same time it may have a positive effect on consumers by making on their behalf comparisons of goods/services offered on the market. It needs to be remembered that unlawful comparative advertising may lead to a serious distortion in competition at the level of a given country or the entire EU market. Practical solutions: An analysis of regulations on comparative advertising, combined with the discussion of the example presented in the study may contribute to increasing social awareness of the positive and adverse effects of comparative advertising’s impact on consumers and competition. Originality/Value: The research has helped to narrow the scientific lacuna in the field of consumers’ perception of comparative advertising combined with regulations in force.