Dutch regulator updates Guidelines on sustainability claims

On 13 June, the Dutch Authority for Consumers and Markets (ACM) published a revised version of its 2021 Guidelines on sustainability claims. The completely rewritten guidance follows the same principles set out in the ACM's original guidance, but adds more detail to strengthen and clarify it.

Reasons for updating

In recent years, the ACM has gained experience in the application of the 2021 Guidelines and with sustainability claims. All these experiences are incorporated in the revised Guidelines. The ACM also incorporated the responses of various companies and trade associations into this new version as well as the latest European legislative developments. Furthermore, the 2023 Guidelines explain more clearly how sustainability claims must be phrased and substantiated, and provide examples of misleading and non-misleading sustainability claims.

Five rules of thumb

The 2023 Guidelines contains five rules of thumb for correct sustainability claims just like the 2021 Guidelines. However, these rules of thumb have been further substantiated and clarified. See below for a brief overview. The first two rules of thumb apply to all sustainability claims. Rules 3, 4 and 5 contain explanations about additional requirements that apply to certain claims. Rule 3 addresses requirements for the use of comparative claims, rule 4 relates to claims about sustainability ambitions of businesses, and rule 5 concerns visual claims and labels.

The Guidelines contains the following rules of thumb:

1. Use correct, clear, specific, and complete sustainability claims

The ACM gives the following points for phrasing sustainability claims –

• The overall impression that a claim creates through the words and the images must be considered;
• Claims must be factually correct, specific and be stated in plain language;
• Claims must not be used to create an impression that statutory requirements or the standard characteristics of a product are sustainability benefits;
• Claims regarding the sustainability "objectives" of a company must not be used to promote  products.

2. Substantiate your sustainability claims with facts and keep them up-to-date

The following points regarding the substantiation of sustainability claims apply ­­–

• Claims must be specific. Absolute, general or vague claims, such as sustainable or green, must be avoided;
• Claims must be explained. The explanation must be concise, clear and understandable for consumers. The explanation must be easy to find and not more than one click away from the claim;
• Claims must be substantiated. The substantiation must be trustworthy and verifiable.

3. Make fair comparisons with other products or competitors

Comparisons with other products or competitors must not cause confusion among consumers.

If companies use comparisons, the following points are important –

• Claims must only compare similar products. It must be made clear what the product is compared to and on what element of a product the comparison is made;
• Claims must be substantiated with up-to-date and objective facts. A comparison must use common standard units, such as percentages;
• Claims may only compare a significant characteristic or a sustainability benefit.

4. Describe future sustainability ambitions in concrete and verifiable terms

The ACM recommends the use of a plan about future ambitions for marketing purposes only if there is a clear plan for realising sustainability ambitions.

The following points apply –

• The plan must be concrete, verifiable, feasible, and specific;
• The plan must include continuous improvements and developments for realising the objectives;
• The implementation of the plan must already be started or in the foreseeable future;
• The plan must be easy accessible by consumers.

5. Make sure that visual claims and labels are useful to consumers, and are not confusing

The ACM distinguishes between visual claims, independent labels, and private labels.

Different points for attention apply to each group –

• Visual claims must support the claim. There needs to be a direct and verifiable link between the illustration and the sustainability benefit;
• Independent labels are preferred over private labels. Only trustworthy labels may be used. When using independent labels, it must be made clear what the label stands for and what criteria have been met;
• Private labels should not be used because labels create high expectations among consumers, which often cannot be met. Most private labels lack a system of independent checks.

Conclusion

After the publication of the revised Guidelines, the ACM will probably start an investigation into the use of misleading sustainability claims in certain sectors, just as it did in 2021 when the authority investigated the clothing sector, energy sector and the dairy products sector after the publication of the Guidelines on sustainability claims. Using the revised Guidance makes it easier for companies to comply with the ACM's requirements regarding the use of sustainability claims.

For more information on this Guidance and sustainability issues in the Netherlands, contact your CMS client partner or local CMS experts: