Advocates & Solicitors
● Commissioner for Oaths ● Intellectual Property Lawyers ● Corporate & Commercial Lawyers
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6thJuly 2010
Advertisements, Trade Description and Safety
Statutes and subsidiary legislation regulate the quality and content of advertisements for goods and services and of information about goods and services provided to consumers1. Standards as to their safe composition, construction design and quality are also prescribed.
Regulations may also prescribe for pre-packed goods to be marked with requisite information as to the quantity of the goods made up in the containers or packing2. Halal certificates can only be issued in relation to any product and halal certification marks (or any colourable imitation thereof) can only be affixed on food with the approval of the Majlis2A.
The Minister or relevant authority is usually empowered to seize and forfeit products and advertisements that breach the respective laws. There are also ancillary powers to test the products to ascertain their compliance with prescribed standards. Acontravention of the statute or regulations usually results in an offence attracting the stipulated penalties, including imprisonment.Acontravention resulting in an offence may not necessarily render void or unenforceable a contract in connection with or in relation to which the contravention occurred3. In the absence of any saving statutory provision, whether a contract is rendered void or voidable will be determined under the common law relating to contract.
Measuring and weighing equipment used in trade have to be verified and tested for accuracy by authorised verifiers and duly labelled4.
Legislation
The Consumer Protection (Trade Descriptions and Safety Requirements) Act5 regulates the accuracy and content of the trade description of goods in general (but not services), whether in an advertisement or trade mark6. Under the Price Control Act, the Price Control may order that prices for specified goods be exhibited clearly and conspicuously7. Significantly, acontract for the supply of any goods will not be void or unenforceable by reason only of a contravention of any provision of the statute8.
Other statutes regulate the labelling, description, or advertising of specific classes of goods such as medicines, medicinal products, medical devices, cosmetic products, poisons, and food, or of services such as medical treatments for specified diseases or conditions or medical services generally. These include the Indecent Advertisements Act9, Medicines Act10, Medicines (Advertisement and Sale) Act11, Smoking (Control of Advertisements and Sale of Tobacco) Act 12, Sale of Food Act13, Sale of Drugs Act 13A , Poisons Act14 and Health Products Act 14A . Some advertisements are prohibited, for instance those under the Human Organ Transplant Act15. The Minister or an authorised person has discretionary powers to prescribe standards for the labelling, description, or advertising of goods and powers of inspection, seizure, and forfeiture of goods, advertisements, and other related documents, as well as powers of testing of the goods16.
The Geographical Indications Act18 regulates the use (including use in any advertisement or invoice or business letter) of a geographical indication19 in relation to goods (including spirits and wines) that is misleading as to the geographical origin of the goods20 or that constitutes an act of unfair competition within the meaning of the Paris Convention for the Protection of Industrial Property21. The plaintiff can commence a civil action for an injunction and/or damages or an account of profits22.
Advertising restrictions or prohibitions also exist in relation to the provision of other services and goods23.A representation that appears in an editorial, documentary or scientific report when the representation is primarily made to sell goods or services is tantamount to an unfair practice under the Consumer Protection (Fair Trading) Act24. The representation should state that it is an advertisement or a promotion so as not to constitute an unfair practice.25
Pursuant to the Spam Control Act, unsolicited electronic messages sent in bulk are required to contain the letters “<ADV>” with a space before the title in the subject field or if there is no subject field, in the words first appearing in the message, to clearly identify that the message is an advertisement. 26 The header information and the title in the subject field of the message cannot be false or misleading as to the content of the message. 27
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1Various self-regulatory codes setting out good trading practices and advertising standards have been issued by bodies such as the Consumers Association of Singapore (‘CASE’), the Advertising Standards Authority of Singapore (‘Singapore Code of Advertising Practice’) and the Direct Marketing Association of Singapore (‘DMAS Code of Practice’).
2See the Weights and Measures Act (Cap349, 1985Ed) ss16–17, 20. See also the Food Regulations (Cap283, Rg1 2005 Ed) regs8A–9, 248–250 which require that specified nutrition information as set out in the Thirteenth Schedule be affixed to special purpose foods such as low-calorie foods, diabetic foods, and infant formula food. Goods sold under a sale by description have to comply with the description: see the Sale of Goods Act s13; and [60.129].
2A Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) s 88A(5). Any person who violates s 88(5) shall be guilty of an offence and shallbe liable on conviction to a fine not exceeding $10,000or to imprisonment for a term not exceeding 12 months or to both. See Angliss Singapore Pte Ltd v Public Prosecutor [2006]4SLR(R)653; [2006]SGHC155 (the appellant-company was charged with having illegally affixed a halal certification mark on a packet of chicken nuggets without the approval of Majlis Ugama Islam Singapura ("MUIS"), contrary to s 88A(5)(b) of the Act).
3See the Consumer Protection (Trade Descriptions and Safety Requirements) Act (Cap53, 1985Ed) ss22, 23, 29.
4 Weights and Measures Act ss 7 -15 and Weights and Measures Regulations 2005 Rs 7-17.
5See Lee Thin Tuan v Louis Vuitton [1992] 2 SLR 273, CA.
6Any person who in the course of a trade or business applies to goods a false trade description (including references to dimensions, quality, composition, and method of manufacture of goods, to testing of and results of testing of goods, and to any approval or endorsement by government or government agency) or supplies such goods will be guilty of an offence: Consumer Protection (Trade Descriptions and Safety Requirements) Act ss4–5, 14–15. For what constitutes “in the course of a business”, and Davies v Sumner [1984] 1 WLR 1301. Afalse trade description can arise in an advertisement or a trade mark (ss7–8). The Minister may set down standards for the informative marking of goods, advertisement content, and safety (ss9, 11). The Director of Consumer Protection or an authorised officer is empowered to inspect, seize and test, and is entitled to the forfeiture of, goods if he has reasonable cause to suspect or believe an offence under the statute has been committed (ss22–28). He is further entitled to inspect and seize documents as evidence in proceedings for such an offence (s23). The statute does not apply to descriptions governed by the Sale of Food Act (Cap283, 2002 Ed). See also the Consumer Protection (Safety Requirements) Regulations (Cap53, Rg1).
7Price Control Act (Cap244, 1985Ed) s8. The Price Control (Display of Prices) Order (Cap244, O1) ordered that goods sold by retail including biscuits, butter, detergents, edible oils, milk, milk powder, rice, sugar, tea, coffee and other food beverages, wheat flour, vinegar and eggs be marked with prices. This order has been repealed with effect on 5March 2003 vide the Price Control (Display of Prices) Order (S108/2003).
8Consumer Protection (Trade Descriptions and Safety Requirements) Act s29. An offence is committed when there is a breach of the statute. See also the Trade Descriptions Act 1968 (UK), under which there is criminal liability for a false description; see s35 which provides that provides that a contract for the supply of goods in not to be unenforceable by reason only of a contravention of the statute.
9I.e.the Indecent Advertisements Act (Cap135, 1985Ed). Any advertisement in any form relating to the treatment of venereal disease is not allowed under the law: s3(1). Indecent advertisements cannot be placed anywhere in public: s3(2). Any advertisement relating to venereal disease or debility or infirmity arising from sexual intercourse or aphrodisiacs is deemed indecent: ss5, 7. Breach of any prohibition is an offence: ss4-6.
10i.e.the Medicines Act (Cap176, 1985Ed). The Minister may impose regulations on the labelling of containers and packages of and leaflets for medicinal products (ss44–45) and advertisements for and representations in respect of medicinal products (s52). The person responsible for any false or misleading description of or advertisement relating to medicinal products is guilty of an offence: ss48–50. No person may publish or cause to be published any medical advertisement that relates to the cure or prevention of specified diseases or conditions (s51 and Sch1), except where the advertisement is intended for circulation to limited classes, such as practitioners, pharmacists, and nurses (s51(2)). The specified diseases or conditions, listed in the Sch1, are: blindness, cancer, cataract, drug addiction, deafness, diabetes, epilepsy or fits, hypertension, insanity, kidney diseases, leprosy, menstrual disorders paralysis, tuberculosis, sexual function, infertility, impotency, frigidity, conception, and pregnancy. The licensing authority is empowered to demand copies of such advertisements from the person who has issued or caused to be issued such advertisements: s53.
11i.e. the Medicines (Advertisement and Sale) Act (Cap177, 1985Ed). No person may take part in the publication of any advertisement in connection with the use of any article for the treatment of specified diseases or conditions (see s3 and the Schedule, which is identical to the Medicines Act Sch1) except where the advertisement is published by the government or a public authority, governing body of a public hospital, or person authorised by the Minister (s3(1)) or is published for specified classes of persons, for example medical practitioners, dentists, pharmacists, or nurses, who are registered under the law: s3(2). No person may take part in the publication of any advertisement referring to any skill or service relating to the treatment of any medical condition (s4), unless the Minister exempts the advertisement from such provision: s9. (But see Medicines (Advertisement and Sale) (Exemption) Order 2004 (S280/2004) that exempts private hospitals, medical clinics, clinical laboratory and healthcare establishments duly licensed under the Private Hospitals and Medical Clinics Act (Cap 248 1999 Ed) from the prohibition in ss 4 and 5.) No article comprising or consisting of any medicine may be sold or supplied by retail or as a sample for the purpose of inducing persons to buy by retail unless it has the requisite written disclosure in English of its composition in the form of label or any printing on the receptacle containing the medicine: s7(1)–(2). Failure to comply with any of the above results in an offence: ss6, 7(3).
12I.e.the Smoking (Control of Advertisements and Sale of Tobacco) Act (Cap309,2003 Ed). Advertisements dealing directly or indirectly with smoking or any tobacco product or any name or trade mark associated with or related to any tobacco product are not allowed (s3(1)), except where the Minister in his discretion approves: see ss3(2), 22, (The impending revisions to the Act via the Smoking (Control of Advertisements and Sale of Tobacco) (Amendment) Bill (No 7 of 2010) expands s 3 by referring to the ‘use’ of tobacco products instead of ‘smoke’ or ‘smoking’: s 5). For instance, the Minister may in his discretion allow advertisements referring to the brand name associated with the manufacturer or distributor of a tobacco product as the sponsor of an event or for the purpose of promoting any goods or services not connected with such tobacco product: s3(2). Failure to comply with this restriction is an offence: ss3(1), 5. The Minister may impose regulations for health warnings and labelling to be affixed to tobacco products: s17. The Director of Medical Services or an authorised officer is empowered to inspect and where necessary seize advertisements and other documents if he has reasonable cause to believe that an offence has been committed under the statute: s24. The Smoking (Control of Advertisements and Sale of Tobacco (Amendment) Bill (No 7 of 2010) introduces a new s 17A on the prohibition of false or misleading packaging and labelling: s 12.
13 It is an offence for a person to sell any food that is labelled or advertised in a manner that is false, misleading, or deceptive or that is likely to create an erroneous impression regarding its value, merit, or safety: see the Sale of Food Act ss16–17 and 20. Food is defined to include drink, chewing gum, and ingredients used in the preparation of food or drink, but excludes live animals and birds, feeding stuff for animals and birds, and substances used only as drugs. Hampers and containers must carry designated labels and the information to be displayed for particular food groups is prescribed by regulations: see the Food Regulations (Cap 283, Rg 1, 2005 Rev Ed) . No advertisement for food shall contain any statement that is prohibited by regulation 9 of the Food Regulations including the false and misleading description of its ingredients on the label, any statement relating to the curative or disease-preventing powers of the food, or words that imply that health or an improved physical conditionmay be achieved by consuming any food (Food Regulations (Cap 283, Rg 1, 2005 Ed) regs 9, 12. It is also not permitted to use any copy of an analysis by food analysts as an advertisement: Sale of Food Act s10.
13ASale of Drugs Act (Cap 282, 1985 Ed), s 8 (no copy of the analyst’s certificate can be used in an advertisement) and Sale of Drugs (Prohibited Substance – Rhodamine B) Regulations (Cap 282, Reg 4)(no person shall import, manufacture, sell or advertise any cosmetics or toilet preparations containing Rhodamine B (D&C Red No. 19)).
14I.e. the Poisons Act (Cap234, 1999Ed). It is not lawful for a person to sell any poison (as defined under the Act) unless the container of the poison is labelled in accordance with prescribed requirements: s6(2).
14AHealth Products Act (Cap 122D 2008 Ed) ss 18-23 and Health Products (Cosmetic Products – ASEAN Cosmetic Directive) Regulations 2007 (S 683/2007) regs 7-9.
15I.e. the Human Organ Transplant Act (Cap131A, 2005Ed). No person may issue or caused to be issued any advertisement relating to the buying or selling in Singapore of any organ or blood or of the right to take any organ or blood from the body of a person: s15. ‘Advertisement’ is defined in s 15(2). Breach of this prohibition shall on conviction result in a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both: s15(3).
16 For details see notes9–13.
17 Geographical Indications Act (Cap117B, 1999Ed). This Act was passed by Parliament on 26November 1998 to meet the standards set out in the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) (1994) (Cm2557), (OJL336, 23.12.94, p214).
18The statute came into operation on 15January 1999.
19 Geographical indication’ means any indication used in trade to identify goods as originating from a place, provided that (a)the place is a qualifying country or a region or locality in the qualifying country; and (b)agiven quality, reputation, or other characteristic of the goods is essentially attributable to that place: Geographical Indications Act s2.
20Geographical Indications Act s3(2)(a), (c), (d).
21Geographical Indications Act s3(2)(b); and see the Paris Convention for the Protection of Industrial Property art10 bis, as amended from time to time.
22Geographical Indications Act s4. Certain uses of geographical indications are excepted: see ss6–9.
23These include prohibition against (and the offence of):
Products—
(1)Advertising obscene films: Films Act (Cap107, 1998Ed) s31(1).
(2)Advertising the sale or supply of any meat product or fish product that has not been properly inspected and certified, or which is diseased, adulterated or unfit for human consumption or which breaches any prescribed rules: Wholesome Meat and Fish Act (Cap349A, 2000Ed) s23(1).
(3)Advertising any cosmetics or toilet preparations containing Rhodamine B (D&C Red No19): Sale of Drugs (Prohibited Substance – Rhodamine B) Regulations (Cap282, Rg4) reg2.
(4)Advertising any pesticide as being suitable for purpose of vector control or any substance, mixture or preparation as being suitable for repelling vectors unless the product is duly registered: Control of Vectors and Pesticides Act (Cap59, 2002Ed) s5(1).
Services—
(1) Advertising or holding out in any way the services of a private investigator, private investigation agency, security officer, or security agency, or security service provider, without appropriate licence (Private Security Industry Act (Cap 250A 2008 Ed) ss 6, 7, 14, 15, 19.
(2)Advertising the business of a travel agent without being duly licensed: Travel Agents Act (Cap334, 1998Ed) s6(1).
(3)Publish any false or misleading advertisements relating to sightseeing or shopping tours or services offered by a licensee under the Travel Agents Regulations (Cap334, Rg1, 1999Ed) reg10.
(4)As licensed travel agents, place advertisements relating to business of a travel agent in prescribed form: Travel Agents Regulations (Cap334, Rg1, 1999Ed) regs9, 10(1).
(5)Advertising relating to an establishment for massage that is not licensed: Massage Establishments Act (Cap173, 1985Ed) s9.
(6)Advertise or hold out as a water service worker or a licensed water service worker or as being qualified to perform water service work unless duly licensed: Public Utilities Act (Cap261, 2002Ed) s40(1).
(7)Advertise or hold out as being qualified to carry out specific service work unless holding a valid gas service worker licence: Gas Act (Cap116A, 2002Ed) s11(1).
(8)Advertise or hold out as being qualified to carry out electrical work, unless duly licensed: Electricity Act (Cap89A, 2002Ed) s82(1).
(9)Advertise the carrying on of money-changing business unless in possession of a valid money-changer’s licence: Money-changing and Remittance Businesses Act (Cap187, 1996Ed) s5(1).
(10) Advertise or otherwise hold out as being qualified to carry out any practice of optometry or opticianry which includes the supplying, preparing and dispensing of optical appliances including contact lenses: Optometrists and Opticians Act (Cap 213A 2008 Ed).
Professional Services—
(1)Advertising the carrying on of business of survey services in Singapore (unless duly licensed): Land Surveyors Act (Cap156, 2002Ed) s10(2).
(2)Advertising or holding out the supply of professional engineering services in Singapore unless duly licensed: Professional Engineers Act (Cap253, 1992Ed) s10(4).
(3)Advertise or hold out as being authorised to supply architectural services in Singapore unless duly registered or licensed: Architects Act (Cap12, 2000Ed) s10(3).
(4)Advertise or hold out as being qualified to carry out any prescribed practice of traditional Chinese medicine unless duly qualified to carry out prescribed practice: Traditional Chinese Medicine Practitioners Act (Cap333A, 2001Ed) s24(1).
(5)Advertise or hold out as a medical practitioner or specialist in a branch of medicine unless duly qualified as a medical practitioner or registered as a specialist in that branch of medicine: Medical Registration Act (Cap174, 2004Ed) ss17(1), 65(1).
(6)Advertise or hold out as a public accountant or an accounting corporation or accounting firm or accounting limited liability partnership or providing public accountancy services in Singapore unless duly qualified: Accountants Act (Cap 2, 2005 Ed) s56(1), (2), (3), (3A).
No licence under the Appraisers and House Agents Act (Cap16, 2000Ed) is needed by a person to appraise certain types of movable goods including general merchandise, tangible goods and consumer goods: s9(1).
The carrying on of business of a private investigator and related advertisements were regulated by Private Investigation and Security Agencies Act (Cap249, 1985Ed) but this statute has been repealed with effect from 27 April 2009.