Sustainability claims in the regulatory spotlight: new guidelines on advertising with sustainability claims in the Netherlands

In the past two years, ‘greenwashing’ and sustainability claims have come under increasing regulatory scrutiny in the Netherlands. The Netherlands Authority for Consumers and Markets (ACM) has issued various guidelines on greenwashing and sustainability claims, and has recently enforced against companies in the fashion and energy sectors. At the same time, the Netherlands Advertisement Code Committee (Reclame Code Commissie – RCC) monitors and ‘enforces’ the self-regulation system of advertising in the Netherlands. Self-regulation means that advertisers, agencies and the media have formulated and subscribed to certain rules with which advertising must comply. These rules include the general and overarching Dutch Advertisement Code (Nederlandse Relcame Code) and more topical and specific codes. As of 1 February 2023, this includes a new code relating to sustainability claims.

In case of a suspected breach of any provision of the Dutch Advertisement Code (or specific codes) anyone can submit a complaint to the RCC. The RCC examines the complaint and when it considers the complaint to not be manifestly unfounded, it will commence notably speedy proceedings (a matter of weeks) with the designated company/companies. Over the past year, we have seen various examples of complaints being submitted and judgments being issued relating to sustainability claims and greenwashing practices; examples are the judgment relating to airline carbon offsetting claims or the use of the certificate “on the way to planet proof” by dairy companies. These complaints and judgments were all based on the overarching Dutch Advertisement Code and the (former) Environmental Advertising Code, the latter which has now been replaced by a new code.

The Netherlands, and notably the ACM and RCC, have been at the forefront of action against greenwashing and the safeguarding and protection of consumer rights in the ESG space, together with similar initiatives and enforcement actions in the UK by the UK regulator the CMA and the equivalent of the RCC, the ASA (earlier this year we published a short blogpost on developments in the UK in this respect).Given the leading role the Netherlands and the UK play in this space, any developments – such as the RCC’s new Advertising Code for Sustainability Claims – are particular interesting.

New Advertising Code for Sustainability Claims

Recently, the new Advertising Code for Sustainability Claims (Code voor Duurzaamheidsreclame) was published and came into force (the Code). The Code is part of the Dutch Advertising Code and aims to encourage responsible sustainability advertising. The Code replaces the former Environmental Advertising Code, which was in force until 1 February 2023, and does not affect regulations or specific sustainability provisions in other codes of the Dutch Advertising Code. The Code is explicitly not intended to deviate from the overarching policy principles from other regulatory bodies, as for example expressed in the ACM’s ‘Guidelines on Sustainability Claims’.

The director of the RCC noted that “consumers should be able to trust what is stated in advertising about sustainability. This is considered to be more important than ever before. We are seeing an increase in the number of complaints about unclear or inaccurate claims. It is therefore important that the [RCC] has an up-to-date review framework to assess sustainability claims, and that there are clear rules for the advertising industry that they can apply in practice.” The new Code endeavours to do just that.

The new Code contains a number of important changes compared to the old code:

1. The Code provides definitions for sustainability advertising and sustainability claims. Sustainability advertising is advertising in which one (or more) sustainability claim(s) is (are) made. With sustainability claims, a distinction can be made between environmental claims and ethical claims. According to the Code, environmental claims are claims that suggest or otherwise give the impression that a product or activity has a positive, less or no impact on the environment. They may concern the environment in general or certain aspects of the environment, such as air, water, soil, ecosystems, biodiversity or climate. Ethical claims, according to the Code, are claims that (may) give the impression that the production or activity of a company has taken place according to certain ethical standards, for example with regard to general working conditions, animal welfare and/or corporate social responsibility.
2. The Code contains a number of specific rules on the use of sustainability claims. For example, companies are not allowed to make misleading claims about their products or services. They must also clearly indicate the sustainability benefits of their products or services.
3. The code contains some specific rules for the use of sustainability labels. For example, companies are not allowed to use labels that have not been approved by a recognised body.

In short, the new sustainability claims code aims to protect consumers from misleading or inaccurate sustainability claims and aligns more closely to the guidance already issued by the ACM. The Code contains a workable definition of sustainability advertising, and specific rules for the use of sustainability claims and labels.

Failure to comply with Code

Companies that fail to comply with this code can be challenged by consumers and competitors at the RCC. And even though it concerns self-regulatory proceedings where the RCC rules whether or not a claim is compliant, the outcome may have a considerably greater impact. If companies, following a negative judgment, fail to adhere to the RCC’s judgment, the RCC can (and will) liaise with the ACM. The ACM has become very active in investigating sustainability claims (see or previous blog post on this here), and the ACM has and has a record using its legal enforcement tools such as the ability to commence formal investigations, issue fines and make orders subject to penalty payments. Furthermore, a negative judgement from the RCC may be used as precedent in follow-on civil proceedings, including as a basis to claim damages. Finally, the ACM has indicated in the past that it will actively cooperate with consumer authorities in other jurisdictions, especially if those authorities would be better placed to enforce against companies (e.g. because companies are registered/head quartered in those jurisdictions); indeed, we have seen examples in the past of the ACM closely cooperating with other authorities (see for instance the ACM press release announcing investigations into the fashion industry, including into companies based abroad for which the ACM has requested the help of foreign consumer authorities).

The new Code is available (in Dutch) here.