SECTION A OVERVIEW

Updates (slimmed)

Media Act amends Dec 2020

Media Act updates August 2021

AFM download link amended Oct 2021

ICC Environmental framework 2021 (Nov)

Credit links refreshed Jan 2022

Media Act updates March 2022 (NL)

CvdM Influencer rules May 2022 (NL)

EN summary of the above here

Updated Social Media and Influencer Code 

Above is unofficial EN translation. NL here 

Tesla is fined millions of dollars for false advertising

Above from Electrek January 2023 re Korean market 

Sustainability Advertising Code (NL) Feb 1, 2023 

EN translation of the above here Feb 7, 2023

Updated Field Marketing Code July 2023 

Above applicable to all sectors NL / EN

CCDII October 2023 (EN) EU summary here

EASA Update CCD October 2023 (re car finance)

Links reviewed Dec 2023; 2 links renewed

Influencer rules 'bundled' by channel here (EN)

New ICC Code September 19, 2024 (EN)

Dutch Supreme Court rules EVs falling short of claimed range are non-conforming
CMS Netherlands/ Lex July 11, 2024

Directive (EU) 2023/2225 of the European Parliament and of the Council of 18 October 2023
on credit agreements for consumers and repealing Directive 2008/48/EC

From February 1, 2023 the SRC's Sustainability Advertising Code replaces the Code for Environmental Advertising

The Dutch version is linked; an SRC English translation is here

The Netherlands follows the pattern of most EU markets, with the three main factors in car marcoms - Safety, the Environment, and Credit - forming the core of the market’s regulatory agenda. The self-regulatory regime features both a Car Code (EN) and a Sustainability Code (EN). The former is unusual in as much as it extends energy data requirements into the online environment. Credit advertising that includes ‘any figures relating to the cost of the credit’ must include a ‘warning message’, which carries some very specific formatting requirements. As online advertising frequently includes earned and owned space, the identification of advertising within that space is important: In The Netherlands, advertising is defined as ‘any form of public and/or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising.’ (Art. 1 Dutch Advertising Code (EN), Section A). ‘Advertising’ includes e.g.: teleshopping, telemarketing, sponsorship, product placement, packaging, labeling, direct marketing and buzz marketing.

The self-regulatory authority Stichting Reclame Code (SRC) manages the Dutch Advertising Code (DAC; EN) which contains the Code for Passenger Cars (EN) (NL) requiring that ‘Advertising shall not appeal to or elicit aggressive, environmentally unfriendly or unsafe traffic behaviour’ (Art. 3), ‘the use of terms that commend the car as an absolutely safe product shall be avoided in advertising messages (Art.4), and that ‘speed, acceleration and engine power shall not be used as arguments to promote sales’ (Art. 1). Full provisions are set out in content section B.

As with many countries, the authorities in the Netherlands do not specifically state that marcoms must observe the Highway Code, but the self-regulatory code requires observance of the law (art.2 of the DAC) and common sense suggests that the rules of the road should be observed in car advertising, notwithstanding that any breach in advertising will be judged on its context and intent. Nevertheless, the following might be regarded as minimum:

• Seat belt observance for all
• Child restraint systems for those under 1.35m
•  Mobile phones may not be held while driving

Detail in section B, showing regulations from the two main traffic acts, Road Traffic Act 1994 (EN key clauses) and Traffic Regulations & Road Signs 1990 (EN key clauses)

The Dutch Advertising Code (EN) also contains the Sustainability Advertising Code (NL Feb 2023; SRC translation here, clauses in our following content section B). All advertising in this sector must conform to this code and the passenger car code above, in addition to the general advertising rules contained within section A of the Dutch Advertising Code linked above. More on those under the General tab below. Relevant in this context albeit more from an international perspective is Chapter D - Environmental Claims - of the ICC Advertising and Marketing Communications Code (2018 chapter code linked; 2024 code is here), together with the ICC Framework for Responsible Environmental Marketing Communications 2021 (EN), updated and issued in November 2021. Appendix I carries a handy environmental claims checklist. The ACM (Authority for Consumers and Markets) publish Guidelines Sustainability Claims (EN, NL here); it is important that these guidelines are understood - the ACM is very active in this territory.

SECTION A OVERVIEW

Updates since Sept 2022 (slimmed)

ACM case H&M & Decathlon (EN) Sept 2022

Influencer rules assembled by DDMA Oct 2022 (NL)

Shell CO2 offset ruling Jan 2023 SRC newsletter (NL)

Media Act January 2023 link (NL)

Sustainability Advertising Code (NL) Feb 1, 2023 

EN translation of the above here Feb 7, 2023

ACM Sustainability Guidelines (EN) June 2023

Commentary on above CMS/ Lex July 11, 2023

ACM: Clear Information on Sustainability Aug 28, 2023 (EN)

Taylor Wessing on the above and ACM guidelines Nov 6, 2023

AFM Sustainability Claims Guidelines October 2023

ING environmental advertising ruling (NL); vid here (EN)

Primark, Arla foods smackdown Taylor Wessing 

Above re green claims February 2, 2024

DLA Piper Environmental Advertising Claims Guide 

Above from August 7, 2024 includes The Netherlands

Advertising, Marketing & Promotion Comparative Guide

Hoogenraad Haak July 2, 2024. Inc Netherlands 

Mineral Sunscreen Spray ruling Aug 7, 2024 (NL)

MSC Cruises Environmental Claims. Oct 2, 2024 (EN)

Above from Maritime Exec. SRC 30/9 ruling here (NL)

Recent rulings of the Advertising Code Commission (NL)
Above from Bureau Brandeis October 4, 2024

SRC Newsletter (NL) November 7, 2024

 Hague Court of Appeal: Shell win 2nd round v Milieudefensie
Burges Salmon November 14, 2024

The Hague world’s first city to ban fossil fuel-related ads

The UK Guardian September 13, 2024

Netherlands Media Authority fines influencer for the first time (EN)
CMS Netherlands July 17, 2024

ACM intensifies supervision of greenwashing (EN)
Maverick. June 6, 2024. Good round-up

SELF- REGULATION

Stichting Reclame Code (SRC) is the Self-Regulatory Organisation in the Netherlands. The SRC publishes the Dutch Advertising Code (DAC) NL / EN, which applies to all advertising regardless of the medium. The DAC is in three sections: General Section (EN); a section of various Special Advertising Codes; and a General Recommendations section (EN). The General section contains a body of rules with which all advertising should comply. The special codes apply to advertising for specific products and services, or using specific channels; see channel header below. There is also the:

Children/ Young People Advertising Code (EN) and the

Sustainability Advertising Code (NL; EN Feb 2023)

CONSUMER AND BUSINESS PROTECTION LEGISLATION

Articles 193a-193j (EN; not up to date - see later entry in this para/ NL) of Section 3A, Book 6 of the Dutch Civil Code prohibit various unfair practices by traders towards consumers, implementing the key provisions of the Unfair Commercial Practices Directive UCPD 2005/29/EC, whilst articles 194-196 (NL / EN; amend to art. 194 here) of Section 4 regulate comparative advertising as derived from Directive 2006/114/EC. These rules are accurately reflected in the DAC referenced and linked above - see Table of Concordance under Annex 2. The Act of 30 March 2022 (NL) amends articles 193c to g of Book 6 of the Civil Code in connection with the implementation of Directive 2019/2161, providing new clauses related to search rankings and consumer reviews, also expressed in the Dutch Advertising Code (EN) under article 8. See Fake Reviews; Really Misleading from Hoogenraad & Haak advocaten/Lex March 23, 2023 which includes a significant ruling from SRC/ ACC. The statutory authority ACM - see below - is also aggressive in this space: ACM takes action against fake reviews from Bird&Bird September 23, 2024 has some examples.

There is a particularly active competition authority in The Netherlands; the recent work of ACM Authority for Consumers and Markets is discussed here (NL) by Maverick Advocaten/ Lex September 13, 2022. Also see environmental claims header below: 'greenwashing' is very much in the ACM's sights.

SELF-REG CHANNEL (I.E. PLACEMENT) RULES

The 7 channel codes from the DAC are: 

Code for distribution of advertisements by e-mail EN

Social Media and Influencer Advertising Code 2022 NL / EN 

Letterbox advertising, door2door sampling and direct response advertising EN

Advertising Code for the use of the postal filter 2021 EN

Code for the distribution of unaddressed printed advertisements EN and

Field Marketing Advertising Code NL (2023) EN (2023)

Rules from these are set out under the relevant headers in our channel section C

SECTION A OVERVIEW

SECTION B CONTENT RULES

1. SAFETY
1.1. The Code for Passenger Cars
1.2. The Highway Code

2. THE ENVIRONMENT
2.1. Environmental claims

2.2.Energy data (FC&CO2)
2.3. End-of-Life vehicles

3. CREDIT

4. PRICING

From February 1, 2023 the SRC's Sustainability Advertising Code replaced the Code for Environmental Advertising. The Dutch version is linked; SRC translation here

1.1. The code for passenger cars:
https://www.reclamecode.nl/nrc/code-for-passenger-cars-cvp/?lang=en (CVP; EN)

Marcoms (in all media) must not:

• Appeal to, or elicit, aggressive or unsafe traffic behaviour (part of Art. 3 CVP)
• Use terms which present the car as an absolutely safe product (Art. 4 CVP)
• Use speed, acceleration and engine power to promote sales (Art. 1 CVP)

​

Engine power code from SRC Dutch Advertising Code CVP:

• Marcoms (in all media) must state engine power in kilowatts (KW) and must not use speed, acceleration and engine power as claims to promote sales (Art. 1 CPC). Note: this is the requirement when engine power is stated, not that engine power must be stated

Legislation:
Road Traffic Act 1994 (EN key clauses) and Traffic Regulations & Road Signs 1990 (EN key clauses)

Article 2 of the DAC states that advertising must be in accordance with the law, good taste and decency. While the link is not absolutely secure (there’s no law that states that car advertising should be in accordance with traffic regulations), it’s pretty obvious that car advertising should observe Traffic Regulations, though any breach in advertising will be judged on its context and intent. Some of the more prominent and relevant traffic rules are below:

• Drivers of passenger cars, commercial vehicles, three-wheeled motor vehicles with enclosed bodies or microcars and their passengers must use the seat belts available to them. Passengers under 18 years of age and less than 1.35m tall must use a suitable child restraint system bearing a seal of approval. If the seats intended for passengers are equipped with seat belts, no more passengers may be carried in these seats than there are seat belts (Art. 59 (1) Road Traffic and Traffic Signal Regs)
• A person driving a motor vehicle, moped, motor-assisted bicycle or disabled person’s vehicle equipped with an engine may not hold a mobile phone while driving (Art. 61a Road Traffic and Traffic Signal Regs)
• It is an offence for any road user to act in such a manner as to cause a hazard (or potential hazard) on the public highway or to obstruct other road users in any way (Art. 5 Road Traffic Act)
• It is expressly forbidden to drive or allow a driver to operate a motor vehicle, when he/ she is under the influence of a substance, whether used alone or in combination with another substance, which he knows, or should reasonably be expected to know, may compromise his driving ability to such an extent that he is not fit to operate a motor vehicle (Art. 8 (1) Road Traffic Act)
• It is expressly forbidden to operate a motor vehicle or allow a driver to operate a motor vehicle when he/ she has consumed alcoholic beverages to the levels stipulated in Art. 8 (2) Road Traffic Act

The following links provide more rules that may be relevant: Road Traffic Act 1994 (EN) and Traffic Regulations & Road Signs 1990 (EN). The Dutch Advertising Code (DAC) incorporates a Code for Alcohol, which includes a provision relating to driving (Art. 18); as you might expect, the traffic regulations prohibit driving under the influence of a substance or substances, or having consumed alcohol to the levels stipulated (Art. 8, Road Traffic Act, as above)

From February 1, 2023 the SRC's Sustainability Advertising Code replaced the Code for Environmental Advertising. The Dutch version is linked; SRC translation here and below.

2.1. Environmental claims

Rules are from the SRC’s Dutch Advertising Code: Sustainability Advertising Code (CDR, EN; Feb 2023) and the Code for Passenger Cars (CVP, EN); the CDR defines an environmental claim as a claim that suggests or otherwise gives the impression that a product or activity has a positive, minor or nil impact on the environment. It can be the environment in general or certain aspects of the environment, such as air, water, soil, ecosystems, biodiversity or the climate. See code for scope. From the CDR:

• Article 3.1 No misrepresentation. Sustainability claims must be presented in a clear, specific, correct and unambiguous manner. Sustainability advertising may not contain any statements, images, logos or other design or quality marks that could mislead the average consumer, in terms of the overall impression the advertising conveys, about sustainability aspects of the advertised products, or about the advertiser’s contribution to maintaining and promoting sustainability in general, thus leading consumers to make a transactional decision they would not otherwise have taken
• Article 3.2 No misrepresentation. When an advertiser communicates its sustainability ambition, it should be made sufficiently clear that it concerns an aim and not the current situation. Such a sustainability claim should not give an overly positive picture of the current and future results in the field of sustainability. It is misleading to advertise an aspiration that cannot reasonably be expected to be achieved

Explanation of Article 3
It must be immediately clear to the average consumer what the sustainability claim relates to and what the sustainability claim means. In an expression in which the term ‘sustainable’, or another term is specified such as ‘green’, ‘fair’, ‘responsible’, ‘clean’, ‘eco’, or ‘better for the environment’ is used, it must be made clear in the communication what specific interpretation the advertiser gives to the term. Without this information, the average consumer will generally not be sufficiently able to make an informed decision about a transaction with regard to the advertised product, because the term does not have a clear-cut meaning. A claimed improvement compared to the previous product or production process and/ or existing comparable products must be of sufficient importance to the average consumer. Improvements must always be presented truthfully, making it clear which aspects of the product they relate to. Deception can arise not only from factual statements, but also from other aspects, such as images, use of colour, logos or quality marks, or precisely from the lack of information or caveats. In the final analysis, it is about the total impression that the advertisement creates. If sustainability ambition is the issue (as referenced in Article 3.2), then there must be clear, objective and verifiable goals, including concrete plans to achieve the established goals. 

• Article 4 Demonstrability. All sustainability claims must be demonstrably correct. The burden of proof rests on the advertiser. The more absolute the formulation of sustainability claims, the more stringent are the requirements for evidence

Explanation of Article 4
Advertisers must be able to support their sustainability claims with up-to-date evidence and provide this evidence if the sustainability claim is disputed. Absolute claims will require very convincing evidence. The evidence must show that the claimed result is guaranteed. With the current state of the art, it is difficult to imagine that many products can be proven to be absolutely sustainable, i.e. that all aspects associated with the production, distribution, supply, storage, consumption or disposal of products are environmentally and ethically sustainable. That is why great restraint is required with regard to absolute claims. It should be realised that expressions such as: “environmentally friendly”, “animal-friendly”, “slavery-free”, “clean”, “green”, “good for the environment”, which are used without further nuance, are likely to be quickly interpreted by the public as absolute claims. However, there is no prohibition of absolute claims because the advertiser who can demonstrate that his absolute claim is correct should be allowed to use this claim.

• Article 5. Components and aspects. If sustainability claims relate exclusively or almost exclusively to certain components or aspects of the advertised products, this must be clearly stated 

Explanation of Article 5
A sustainability claim can relate to the entire production chain of a product or to a specific aspect. If the claim only applies to part of the product chain, this must be made clear.
Example: if an advertiser makes an environmental claim for the entire journey in an advertisement for an amalgamated trip, that claim must be able to be rationalised for all parts of the journey. If it only concerns certain aspects, this should be clearly stated. Of course, Article 4 also remains applicable, which stipulates that all sustainability claims must be demonstrably correct with regard to all aspects to which the claim pertains.

• Article 6 Absence or reduction of components. A claim related to the absence or reduction of certain components harmful to the environment is only permitted if it can be shown that: Any replacement components are less harmful to the environment, and It is not incorrectly stated or suggested that comparable products contain the absent or reduced (harmful) components
• Article 7 Comparisons. If a sustainability claim consists of a comparison, it must be clearly stated between which (aspect of the) advertised product or company on the one hand and which (aspect of the) product or company on the other hand the comparison is made. The products being compared must meet the same needs or serve the same purpose 

Explanation of Article 7
The comparison must relate to objectively comparable products. The comparison must be specific and up-to-date and must objectively compare one or more material, relevant, verifiable and representative features of these products. A sustainability claim such as “this product is more environmentally friendly” is in itself insufficiently clear, because it is not clear what is being compared. For example, is it compared to a comparable product from a competitor or is it a new version of your own product that has less impact on the environment than before? And how much less is that impact on the environment and how can that be verified? An example of an acceptable comparison is: “Since this month we have been selling more animal-friendly chicken, because we no longer sell 1-star Beter Leven chicken, but 3-star Beter Leven chicken.” This is a concrete, up-to-date comparison that objectively compares relevant, verifiable and representative features of the products. The sustainability claim is also inadmissible if the improvement is only because of changes in legislation that makes the improvement mandatory for all comparable products. In a comparison with a competitor or products of a competitor, the rules of article 13 NRC (the Dutch Advertising Code) apply in full.

• Sustainability statements and symbols may be used, provided that the origin of the statement or symbol is clear and confusion about the meaning of the statement or symbol is excluded (Art. 8. Statements and symbols)

Explanation of Article 8
Quality marks issued by reputable independent bodies (for example, those that meet the requirements of the Council for Certification) can provide justification for a sustainability claim if the claim is specifically based on it. This Article leaves open the possibility that entrepreneurs (organisations) themselves introduce and use sustainability symbols and the like. The symbols must then meet two criteria: the origin must be clear and there can be no confusion about its meaning. Clarity about the origin can be created by stating this in the advertising or in generally accessible information. In the case of a private label or symbol, it must be made absolutely clear that it is a private label/symbol and the advantages it offers. There must be no risk of confusion with existing labels/symbols. In any event, it should not suggest that higher requirements are met than are actually the case. The Quality Mark Guide of Milieu Centraal can help advertisers find a quality mark they wish to join. The Quality Mark Guide of Milieu Centraal provides information about the requirements set by quality marks and about control and transparency.

• Article 9. Waste processing, collection and re-use. Environmental claims relating to (separate) waste collection and/ or waste processing are only permitted if the recommended method of collection or processing is available and can be applied in practice. Environmental claims relating to the re-use (recycling) of products, or parts thereof, are only permitted if this re-use is sufficiently achieved in the advertised products or parts. If not, this limitation must be apparent directly from the ad and the detailed description of the extent to which waste collection, waste processing and/or recycling is available can be included in the ad itself or via a reference (e.g. a clear link to a website) in the output

Explanation of Article 9
In today’s society, the problem may arise that (separate) waste collection and/or waste processing and/or re-use is theoretically possible, but practically not (yet) available to a reasonable number of consumers. An important role is always played by how absolute the options of waste processing, separate collection and re-use are presented.

..............................................

From the Code for Passenger Cars 

• Article 3. Advertising shall not appeal to, or elicit aggressive, environmentally-unfriendly or unsafe traffic behaviour. Terms which commend the car as an environmentally-friendly product shall be avoided in advertising messages. Qualifications concerning contributions to or the promotion of a clean environment shall under no circumstances be used in an absolute sense
• Other environment-related claims in the car code relate to energy and emissions claims; these are set out under point 2.2 below 

..............................................

• The trade association for cars RAI can also help with the use of environmental statements 
• Also relevant in this context is Chapter D - Environmental Claims - of the ICC Advertising and Marketing Communications Code (from the 2018 code; 2024 code here) together with the ICC Framework for Responsible Environmental Marketing Communications 2021 (EN), updated and issued in November 2021. Appendix I carries a handy environmental claims checklist.

Context and sources

Note: a July 2017 decision from the Advertising Code Committee requires that it is made clear that the energy data figures are the official data, or that a disclaimer is included that the official figures are not achievable in reality. From April 2020 all relevant new car advertising will be required to display WLTP figures. Law and industry code: Decree on the labelling of Energy Consumption of Passenger Cars, referenced below as 'The Decree'. English translation of key clauses here; and the SRC Code for Passenger Cars (EN), referenced as CPC. The Decree requires information on fuel consumption and CO2 emissions to be displayed on/ via the following media/ 'information tools'. Our pages cover mainly promotional literature and Online

• Promotional literature; covers all printed matter used in the marketing, advertising and promotion of new cars, including technical manuals, brochures, advertisements in newspapers and magazines, trade press and posters (Art. 1P The Decree) which must contain the official fuel consumption and CO2 emission data for the passenger car model to which it refers. The information must meet the requirements set out in Annex III of The Decree (Art. 4 (1)); see below
• Non-binding Commission Recommendation 2003/217/EC extends this information requirement to include the Internet and electronic storage media (DVD’s / CD-ROMs); the SRC Code for Passenger Cars (EN) implements in print/ outdoor with specific size and formatting requirements, and in online media (Art. 2 Para 2 CPC)
• From April 2020 all relevant new car advertising will be required to display WLTP figures; see also SRC ruling above re official figures 

2.2.1. Promotional literature/ print media (the law)

• Information must be easily legible and no less prominent than the main part of the advertising text
• Information must be easy to understand, even after a cursory/ hasty inspection of the material
• The information must include the official fuel consumption and CO2 emissions figures for the advertised model
• If the promotional literature refers to more than one model, then either the information for the official fuel consumption and CO2 emissions for all the specified models must be included, or the data from the worst and the best of the models. See example ad
• The official fuel consumption figure must be accurate to one decimal place and expressed in kilometres per litre and litres per 100 km for fuel, LPG (liquefied petroleum gas) or diesel, or in m3 per 100 kilometres and kilometres per m3 for natural gas
• The official specific CO2 emission figure must be provided in grams per kilometre rounded off to the nearest whole number

• If the promotional literature only contains reference to the make, and not to any particular model, then data on fuel consumption and CO2 emissions need not be provided (Art. 4 (3) The Decree).
• The supplier must ensure that dealers have access to the information (on fuel consumption and CO2 emissions) for the supplied passenger car models that are displayed or offered for sale / lease (Art. 4 (2) The Decree)
• It is prohibited to add any marks, symbols or inscriptions relating to energy consumption that do not comply with this decree if it might cause confusion among potential consumers of new passenger cars (Art. 4 (4) The Decree)

2.2.2. Promotional literature/ print media (self-regulation)

Formatting requirements

The self-regulatory Code for Passenger Cars (CPC; EN) reflects and supplements the law above, stipulating formatting for energy consumption data, as follows:

• Any fuel consumption figures shall exclusively be stated in accordance with the Decree on the labelling of Energy Consumption of Passenger Cars (Stb. 2000/475) (Art. 2 (Para. 1) CPC)
• Article 2 (Para 2) CPC confirms that an advertising message must contain information about the energy consumption of the car models referred to in the advertisement
• This information complies with the requirements of Annex III (above) of The Decree if the average fuel consumption and the average CO2 emissions according to the official test cycle are represented as follows:
   
  • Horizontally, in relation to the written commercial message
  • At the bottom of the message, and separated from other written statements
  • In a font that is clearly readable and with normal spacing
  • In a way that the statements are in clear contrast with the background
  • In a font size at least equal to the smallest font size of the information provided in the advertising message (further details and font size specifications in our following Section B)
     

The CPC mirrors the following provisions from the Decree (Stb. 2000/475), including non-print media: 
 

• The fuel consumption and CO2 emission data shown must represent the values of the model shown i.e. manual/ automatic gearbox, petrol/ diesel version etc. (Art. 2 CPC / Annex III The Decree)
• If the advertisement does not specifically refer to one particular version, but to a range of vehicles of the same model or the same brand, then the two extreme values (minimum and maximum) are stated for both the average fuel consumption and the CO2 emissions (according to the official test cycle) of the range of vehicles to which the advertisement relates (Art. 2 CPC, see Annex III)
• Official fuel consumption and official specific CO2 emissions data are expressed in exactly the same way as stated in Annex III of the Decree (see above)

2.2.3. Online promotional material 

• The Commission Recommendation 2003/217/EC extends the application of the provisions contained under promotional literature (Art. 4 and Annex III, The Decree) to non-print media in the form of promotional material ‘distributed by electronic means’ and electronic storage media (VHS, DVD, CD-ROMs). The Recommendation does not apply to TV and Radio broadcasts and it has not been implemented into national legislation and is therefore not mandatory, but an invitation to act in the way proposed. In practice, the provisions are generally followed
• The Code for Passenger Cars (EN) includes the requirement that FC&CO2 data are included in advertisers’ websites and in other online media; see article 2
• Requirements for online/ digital media are set out in full in our following channel section C

Management of End-of-Life Vehicles Decree (EN) of 24 May 2002 implementing Directive 2000/53/EC requires that information on a car model’s recycling and waste management practices and progress, as below, is included in the ‘promotional literature’ for the sale/ marketing of new vehicles.’ 2. The report shall contain, in any event, data on:
 

a. the way in which in the design of a new vehicle type, the generation of waste is being controlled (prevented), to the possibility of re-using as a product or material and of [how] recovery of that type of vehicle is pursued (achieved)
b. the manner in which End-of-Life vehicles are processed
c. the development and improvement of ways to reuse as a product or material and recover end-of life vehicles
d. the percentage of weight of the vehicles made available by the manufacturer or importer to another (vehicle) that are being re-used or recovered as a product or material
 

4. The manufacturer or importer shall ensure that the information referred to in the second paragraph shall be included in promotional literature used in the sale/ marketing of new vehicles

There is not much evidence of widespread compliance with this Decree, which technically would apply to e.g. press advertising. Most manufacturers will probably carry the information on their websites

Directive (EU) 2023/2225 of the European Parliament and of the Council of 18 October 2023
on credit agreements for consumers and repealing Directive 2008/48/EC

EU summary here. The directive to be transposed into national law by 20 November 2025

GRS comparison of the ad rules between new and former directive here 

Caveat

Agencies/ clients will be aware of the mandatory ‘standard information’ that is a statutory requirement in credit advertising as a function of the Consumer Credit Directive 2008/48/EC applying to ‘any advertising concerning credit agreements which indicates an interest rate or any figures relating to the cost of the credit to the consumer’. This information if present, and other aspects of credit advertising such as restricted expressions, should be reviewed/ finalised by national practitioners and advisors. In other words, check credit offer advertising with your lawyers.

National legislation (as at October 2024) and the European Directive:

• Art. 53 Decree on the Supervision of the Conduct of Financial Corporations (BGFO; EN key clauses. NL Jan 2023 here) provides the 'standard information' set out below
• Art. 2.2 Further Regulations on the Supervision of the Conduct of Financial Corporations (NRGFO; EN key clauses. NL art 2.2. Jan 2023 here) provides the formatting rules for the credit warning set out under 3.4. below
• Art. 59 (1) Title 2A Book 7 Dutch Civil Code (DCC; EN key clauses) and Article 4 Consumer Credit Directive (EN key clause). The former transposes the latter pan-European credit advertising requirements 

3.1. Standard information

Where a financial enterprise refers to a borrowing rate or other information relating to the cost of credit in an advertisement about loans/ credit, it must also provide information concerning (Art. 53 BGFO):

(a) The borrowing rate, fixed or variable or both, together with particulars of any charges included in the total cost of the credit to the consumer
(b) The total amount of credit
(c) The annual percentage rate of charge (APR)

(d) The identity and address of the credit provider or of the credit intermediary; and, if applicable,
(e) The duration of the credit agreement
(f)  In the case of a credit in the form of deferred payment for a specific good or service, the cash price and the amount of any advance payment; and
(g) The number of instalments and instalment amount

3.2. Statements

• Where the conclusion of a contract regarding an ancillary service (e.g. insurance) is compulsory in order to obtain the credit on the terms specified in the advertisement, and the cost of that service cannot be determined in advance, the obligation to enter into that contract shall be stated in a clear, concise and prominent way, together with the annual percentage rate of charge (Art. 53 (2) bgfo)
• If both the standard information (as per Art. 53 (1)) and the statement (as per Art. 53 (2)) are provided in an advertisement for credit, the financial enterprise must combine the information into a table in which no other information is included (not applicable to TV/ Radio commercials) (Art. 53 (4) bgfo) See ad example here with the table
• If a financial enterprise provides information about a loan/ credit as referenced in Article 53 (1) or (2), or information about a specific product in an advertisement, it shall also state where information referenced in Article 4:33 (Para 1) of the Financial Supervision Act can be found (see below). This point does not apply to advertisements for a loan/ credit where the credit is part of a complex product (Art. 53 (10) BGFO)
• Article 4:33 states that prior to the establishment of a credit agreement the credit provider must provide, where applicable on the basis of the preferences expressed and information supplied by the consumer, information to the consumer with a view to providing adequate assessment of the credit – based on information set out in Annex D bgfo (see BGFO link)

3.3. Prohibitions

A financial enterprise must not:

• Include information in an advertisement for credit which focuses on the ease and speed at which credit is provided
• State in an advertisement for credit that existing credit agreements do not play a role or play a secondary role in assessing an application for credit play
• State in an advertisement for credit that it is still possible to obtain credit in derogation of the Code of Conduct in the event of a negative outcome of the consultation with the credit registration system or otherwise
• Render any characteristics of the credit in an advertisement for credit in which tax benefits are incorporated (Art. 53 (9) BGFO)

• The credit warning is mandatory for all credit advertising which includes any figures relating to the cost of the credit to the consumer (Art. 53 (7) BGFO and AFM guidance)
• It consists of the phrase: 'Let op! Geld lenen kost geld (Be careful! Borrowing money costs money) and a warning symbol above, which can be downloaded from the Financial Markets Authority website here in various image formats 
• There are specific requirements for size and layout according to medium (Print/ Online, Radio, and TV). These are shown in our following channel section C 
• The Further Regulations on the Supervision of the Conduct of Financial Corporations (NRGFO; EN key clauses) contains the precise requirements for the inclusion of the warning phrase and symbol (Art. 2.2)

As pricing provisions apply to all sectors, rules are also shown under the General tab below. 

 We show here those rules most relevant to the car sector. This is sensitive and difficult territory, for car prices especially; quoted prices are best reviewed by a legal advisor

• SRC Dutch Advertising Code Section A (EN) articles 7 Unfair Act; 8.3c Misleading Omission; 8.4c Invitation to Purchase; art. 13c and final para Comparative
• SRC Check for Unfair Advertising and Information Obligations (Total Price)
• Advertising Code Committee Case Kia Picanto EN; Scooter’ Case / EN.  Both cases concerned the issue of what must be included in the presentation of a price, and in the Kia case, the use of the term ‘From’. The Kia case is especially important in this context: the entry-level price in the Kia advertising excluded ‘ready-for-use’ costs (delivery costs) as well as other admin charges and recycling fees

​Legislation

• Product Pricing Decree NL Jan 2023 (art. 5.1) EN key clauses inc. 2022 amends 
• Art. 193e (c) Book 6 Dutch Civil Code Title 3; Section 3A Unfair Commercial Practices NL (Jan 2023) / EN in addition to arts. 193g (e) and (f) Bait and Switch; art. 193g (t) Describing a product as free; incorporates provisions from the Unfair Commercial Practices Directive 2005/29/EC. The English translation does not reflect the Jan 2023 NL version, but the referenced articles continue to apply

Authority guidance

• ACM, the Authority for Consumers and Markets, Price Promotions note EN
• ‘Car prices have become clearer following ACM campaign’ EN. More below:
• Unavoidable costs (rijklaarmaakkosten / ‘on-the-road’ costs) listed with advertised price: the law stipulates that all unavoidable costs must be included in the advertised price. With regard to new cars, these include, for example, delivery fees, the cost of license plates, recycling fees, and registration with the Netherlands Vehicle Authority (RDW), which is the Dutch national motor vehicle and driving license registration authority. With regard to used cars, these include safety inspection fees and title transfer fees (or registration transfer fees)
• FAQ on ‘on-the-road’ / ‘ready-for-use’ costs from ACM: NL

Key clauses

• All advertising including incorrect information, or information that is unclear or ambiguous for the average consumer in respect of one or more elements as listed in points a to g hereunder, and which would consequently entice or may entice the average consumer to make a decision on a transaction which he would otherwise not have made, is considered to be misleading: d. the price or the way the price is calculated, or an explicit price advantage; (Art 8.2d DAC; Art 193c (1d) Book 6 DCC)
• In case an advertisement serves as an invitation to purchase (defined in the para below), the following information must be provided: The price, including taxes, or, if the product is such that the price thereof cannot reasonably be determined beforehand, the way the price is determined and, if the case may be, all supplementary freight costs, delivery or postage costs, or if these costs cannot reasonably be determined beforehand, the fact that these supplementary costs will possibly have to be paid (Art 8.4c DAC; Art 193e (c) DCC Book 6)
• An invitation to purchase is defined as a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase (Art. 193a (g) DCC Book 6)
• Advertising that includes price, even entry-level/ starting price such as from €..….”, will constitute an invitation to purchase (see UCPD Guidance s.1.4.4 inter alia); this means that an advertisement that mentions price will need to include the following information if not already apparent from the context:

• The main characteristics of the product, to an extent appropriate to the medium and the product
• The geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
• The price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
• The arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
• If there is a right of withdrawal or cancellation, the existence of such a right (Art. 193e (a-e) Book 6 CC)

• Offering products for a certain price without mentioning that there are good reasons to suspect that the advertiser might not be able to deliver these products or similar products for the mentioned price, nor have another advertiser deliver them, during a certain period and in quantities, which are reasonable, taking into account the product itself, the range of the advertising campaign for this product and the price offered (Annex 1(5) sect A DAC; Art 193g(e) Book 6 DCC)
• Offering a product for a mentioned price and subsequently: (a) Refusing to show the consumer the offered product; or (b) Refusing to accept an order or refusing to deliver the product within a reasonable term; or (c) Showing a defective example of the product with the intention to commend another product (‘bait and switch’) (Annex 1(6) Sect A DAC; art. 193g (f) Book 6 CC)
• Deceptively claiming that the product will be available for a limited period of time or only under special conditions for a limited period of time, to urge the consumer to make an immediate decision and not give him/ her a chance or enough time to make an informed decision (Annex 1(7) Sect A DAC; Art 193g(g) Book 6 DCC)

4.3. Case law

Court of Justice of the European Union (CJEU) C‑476/14 Citroën/ZLW Judgement and AG Opinion; in brief summary, the court ruled that car retailers may not advertise a price that does not include all necessary and fixed costs

SECTION B CONTENT RULES

1. SELF-REGULATION

1.1. Section A General rules, Dutch Advertising Code

Good taste and decency

Unfairness and misleadingness

Invitation to purchase

Identifiability

Comparative advertising 

Aggressive advertising

Blacklist: annex 1 and 2

1.2. Section C of the Dutch Advertising Code

Deleted by SRC as of Jan 2023

Use of ‘comparable retail value’

Superlatives, guarantees

The term ‘recommended price’

Advertising for branches

Pictures of the product 

1.3. Advertising Checker service from SRC

2. LEGISLATION

2.1. Comparative advertising

2.2. Misleading commercial practices

2.3. Invitation to purchase

2.4. The Blacklist

3. SPECIFIC CLAIM AREAS

3.1. Pricing

3.2. Environmental claims

1. SELF-REGULATION

Note: where the English version of the Dutch Advertising Code below does not accurately reflect the Dutch version, or the European Directives from which part is derived, we have ‘tweaked’ it for presentation in the articles that follow, for easier understanding. The applicable code for adjudication purposes is anyway the Dutch version, and you can always refer back to the SRC English version. We have extracted the most important of the rules and in some cases linked particular explanations; the full code in English is linked here 

 Section A. General rules

• Definition of Advertising (Art. 1): any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising. Explanation of Art. 1 in full

Good taste and decency

• Advertising must be in accordance with the law, the truth, good taste and decency (Art. 2. Explanation)
• Advertising must not contravene the public interest, public order or good morals (Art. 3)
• Advertising must not be gratuitously offensive or constitute a threat to mental and/or physical public health (Art. 4)
• The form and content of advertising must not undermine confidence in advertising (Art. 5)
• Without justifiable cause, advertising must not arouse feelings of fear or superstition (Art. 6)
   
• This ruling, which did not uphold a complaint about a Zeeman underwear commercial, is good context
• As is this December 2021 ruling for a G-Star jeans commercial, also not upheld 

 Unfairness and misleadingness

• Advertising must not be unfair. Advertising is considered to be unfair if it contravenes the requirements of professional diligence, and if it materially distorts or is likely to materially distort the economic behaviour of the average consumer reached, or targeted, as regards the product. Misleading and/ or aggressive advertising is considered to be unfair in all cases (Art. 7. Explanation)
• When assessing whether or not an advertisement is misleading, account must be taken of all its characteristics and circumstances, the factual context, the limitations of the communication medium, and the intended audience (Art. 8.1)
• Any advertising which contains incorrect/ false information, or information that is unclear or ambiguous for the average consumer in respect of one or more of the elements as listed in points a - g hereunder, and causes or is likely to cause the average consumer to take a transactional decision that he would not have otherwise taken, is considered to be misleading (Art. 8.2):

1. The existence or nature of the product
2. The main features of the product, such as availability, benefits, risks, execution, composition, accessories, customer service and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose (suitability for use), usage, quantity, specification, geographical or commercial origin, expected results, or the results and essential characteristics of tests and controls performed on the product
3. The extent of the obligations of the advertiser, the motives for advertising and the nature of the sales process, any statement or symbol related to direct or indirect sponsorship, or recognition/ approval of the advertiser or the product
4. The price or the way in which the price is calculated, or the existence of a specific price advantage
5. The need for a service, spare part (component), replacement or repair
6. The nature, characteristics and rights of the advertiser or his agent, like for example his identity, his assets, qualifications, status, approval, affiliation, connections; ownership of industrial, commercial or intellectual property rights, or his prizes, awards and distinctions
7. The legal rights of the consumer, including the right of replacement or refund, or the risks he might run/ face

• Advertising is also regarded as misleading if it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves the following (Art. 8.3. Explanation Where the medium used for advertising involves limitations of space or time, these limitations as well as measures taken by the advertiser to make the information available to consumers by other means, shall be taken into account when deciding whether information has been omitted. Essential information consists, among other things, of all information the advertiser has to provide pursuant to the law)
   
  1. Marketing of a product in a way that could lead to confusion with a competitor’s products, trademarks, trade names and other distinguishing marks
  2. Non-compliance by the advertiser with a code of conduct by which he has undertaken to be bound, insofar as the commitment/ obligation is capable of being verified and the advertiser indicates (in advertising) that he is bound by the code of conduct
  3. Omitting, keeping hidden, or providing in an unclear, unintelligible, ambiguous or untimely manner, essential information that the average consumer needs in order to make an informed transactional decision
  4. When, within a website, consumers are provided with the possibility to search for products offered by different dealers, general information on the main parameters determining the ranking of products presented as a result of this search and the relative importance of those parameters, must be made available in a specific section of the online interface that is directly and easily accessible from the page where the results are presented
  5. When an advertiser provides access to consumer reviews of products, whether and how is ensured that the published reviews originate from consumers who have actually used or purchased the product, must be explained.

​Above clauses d and e added May 2022 in transposition of Directive 2019/2161

Invitation to purchase

(Art. 8.4. Explanation An invitation to purchase is defined as a commercial message stating the characteristics and the price of the product in a way appropriate to the medium used, and thus enabling the consumer to make a purchase. If the advertisement contains an answering or ordering mechanism, it is always considered to be an invitation to purchase. In case such a mechanism is missing, it depends on the circumstances whether there is a matter of an invitation to purchase. A key factor is whether the consumer can base a decision about the transaction on the information in the advertisement. If the advertisement states a (starting from) price, the consumer usually has sufficient information to decide to make a transaction)

• In case an advertisement serves as an invitation to purchase, which does not relate to a distance contract or off-premises contract, the following information shall be supplied:

1. The main characteristics of the product, to an extent appropriate to the medium and the product
2. The geographical address and the identity of the advertiser, in particular, his trading/ business name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
3. The price including taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges/ costs cannot reasonably be calculated in advance, the fact that such additional charges/ costs may be payable
4. The arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
5. For products and transactions involving a right of withdrawal/ revocation or cancellation, the existence of such a right

Invitation to purchase in relation to a distance or off premises contract

http://www.g-regs.com/downloads/NLGenDACArt8I2Pexp.pdf

• The methods of advertising which are considered misleading under all circumstances are set out in Annex 1 (EN) of the Dutch Advertising Code (Art. 8.5. Explanation The methods of advertising referenced in Annex 1 of the Dutch Advertising Code are misleading under all circumstances. Therefore, it is not necessary to consider whether they are misleading for the average consumer, or if the economic behaviour of the average consumer is materially distorted or is likely to be materially distorted)
• Testimonials, commendations or expert statements that are used in advertising must be based on the truth and must be in line with the latest accepted scientific views (Art. 9)
• In advertising intended for the general public, scientific terms, statistical data and quotations shall be used with the utmost care in order to prevent/ avoid confusion of ideas. If use is made of statistics that are valid only within certain limits, such limits shall be stated clearly (Note: e.g. where statistics are based on provisional figures or for a certain period of time, these qualifications should be mentioned, otherwise it could be misleading). No technical terms, descriptions, illustrations or pictures that are manifestly intended to suggest in a quasi-scientific or misleading manner the presence of non-existent properties of goods or services, shall be used (Art. 10)

 Identifiable advertising 

• Advertising must be identifiable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended (Art. 11.1)
• Advertising in audio-visual media must be clearly distinct from the rest of the programming by optical and/ or acoustic means. The use of subliminal techniques is prohibited. The use of elements from a broadcast programme in advertising is also prohibited in the event it can be reasonably assumed that the viewers or listeners would be misled or confused by it. The appearance in advertising of people who may be deemed, by virtue of their participation in broadcast programmes, to have influence or instil confidence in certain sections of the public is prohibited (Art. 11.2 Explanation The term audio-visual media particularly refers to programmes broadcast on radio and TV. Subliminal techniques refer to techniques that employ inserted images and/ or sounds of very brief duration in an attempt to influence viewers or listeners, possibly without their knowledge or ability to perceive them)

Comparative advertising EN (Art. 13)

Aggressive advertising (Art. 14. Explanation ‘Undue Influence’ is defined as taking advantage of a dominant position in order to apply pressure on the consumer even without the use of violence or threat of violence, in such a way that the consumer’s ability to make a well-informed decision is considerably reduced. The methods of advertising as referenced in Annex 2 of the Dutch Advertising Code are considered aggressive under all circumstances)

• Aggressive advertising is prohibited. An advertisement is considered to be aggressive in the event that, taking into account all its features and circumstances, the factual context, the limitations of the communication medium and the intended audience, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product, by means of intimidation/ harassment, coercion, including the use of physical violence, or undue influence, which thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise (Art. 14.1)
• The methods of advertising which are considered aggressive under all circumstances are listed in Annex 2 of the Dutch Advertising Code
• At the request of the Advertising Code Committee or the Board of Appeal the advertiser must demonstrate the accuracy or fairness of the advertisement, should this be disputed for good reasons (Art. 15)
• The Dutch Advertising Code must not only be applied according to the letter of its provisions but according to its spirit as well (Art. 16)
• In the case of Special Advertising Codes, the General Section of the Dutch Advertising Code shall remain fully in force (Art. 17)
• Companies as well as consumers have the right to submit a complaint about violations of the Dutch Advertising Code with the Advertising Code Authority (SRC). This means that where in this part of the General Code reference is made to consumers, corporate bodies are also covered (Art. 18)

Blacklist: Annex 1 and 2

Annex 1 contains advertising practices considered misleading under all circumstances, whilst Annex 2 lists advertising practices considered aggressive under all circumstances. The following blacklist clauses are added in the DAC, having been transposed May 2022 as a result of Directive 2019/2161 amends

23. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results
24. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers
25. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.

1.2. Section C of the DAC: General recommendations

This section was deleted from the DAC January 2023

The topics below are set out in full here (EN)

Use of words ‘comparable retail value’

Superlatives, guarantees

Use of the term ‘recommended price’

Advertising for branches

Pictures of the product 

1.3. Advertising Checker Service from the SRC

Context

This is a service in Q&A/ Do’s and Don’ts format that is intended to help with some of the major issues such as taste and decency, information requirements etc. that can be encountered when developing advertising. Those issues are set out below largely by way of linked files, as their exploration is quite intricate and lengthy. The information below and linked has been translated from sites that are amended on a regular basis. Whilst we try to keep the translation updated, for the most recent information it may be best to check the Dutch version linked above

Taste and decency

http://www.g-regs.com/downloads/NLGenSRCCheckT_DChecklist.pdf

Recognition of advertising

http://www.g-regs.com/downloads/NLGenSRCCheckIdentifiabilityChecklist.pdf

For guidance on identifiability across several issues/ channels, including example cases

http://www.g-regs.com/downloads/NLGenSRCCheckIdentifiabiltyMedia.pdf

Unfair advertising

https://www.g-regs.com/downloads/NLGenSRCCheckGenUnfair.pdf

A section on the ‘Blacklist’, i.e. those commercial practices in all circumstances considered unfair

http://www.g-regs.com/downloads/NLGenSRCCheckUnfairBlacklist.pdf        

Information requirements

Last updated by SRC 10/10/2017 NL

Key extracts in English here:

https://www.g-regs.com/downloads/NLGenSRCCheckInfo.pdf

2. LEGISLATION

While advertising regulation is largely a self-regulatory system, legislation is influential in channel especially, but also in content. Issues of unfair commercial practices and comparative advertising can end up in the courts, so it’s best to know what the laws say, albeit they are largely echoed in self-regulation, in the Netherlands in particular

Applicable legislation

• Articles 193a - 193j, Section 3A, Book 6 Civil Code: EN (trans does not include clauses transposed from Directive 2019/2161, available separately here / link to NL version Jan 2023). Covers unfair commercial practices, including e.g. misleading advertising and is the principal marketing legislation derived in part from the Unfair Commercial Practices Directive 2005/29/EC. Incorporates the ‘Blacklist’ of practices that are 'misleading in any circumstances' which now carries provisions related to search rankings and consumer surveys from the 2019 Directive linked above; clauses shown below
• Articles 194 -196, Title 3, Section 4, Book 6 Civil Code (linked above; amend to art. 194 here) Misleading and comparative advertising; B2B and B2C with the exception of article 193a (2d). Similarly to the construct of Section 3A above, these rules derive from MACAD, the Misleading and Comparative Advertising Directive 2006/114/EC
• Articles 15d, paras 1&2, and 15e para 1. Book 3 Dutch Civil Code: EN / NL (2022) covers material Information requirements in an e-Commerce context and in this case transposed from the e-Commerce Directive 2000/31/EC. The translation linked earlier does not reflect the latest NL version but the clauses concerned are anyway unchanged. We have not set those out below; see the linked files

2.1. Comparative advertising (Art. 194a Book 6 CC (EN))

1. Comparative advertising means any advertising that explicitly or by implication identifies a competitor or goods or services offered by a competitor

2. Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:

a. It is not misleading or a misleading commercial practice referred to in Articles 193c to 193g

b. It compares goods or services meeting the same needs or intended for the same purpose

c. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price

d. it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trademarks, trade names, other distinguishing marks, goods or services and those of a competitor

e. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor

f. For products with designation of origin, it relates in each case to products with the same designation

g. It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products

h. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name

3. Any comparison referring to a special offer shall indicate in a clear and unequivocal way the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the date of the start of the period during which the special price or other specific conditions shall apply

2.2. Misleading commercial practices (Article 193c Book 6 CC)

• A commercial practice is misleading if information is provided which is actually incorrect or which deceives or is likely to deceive the average consumer, whether or not by means of an overall presentation of the information, like with respect to (Art. 193c (1a-g):

• The existence or the nature of the product
• The main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product
• The trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product
• The price or the way in which the price is calculated, or the existence of a specific price advantage
• The need for a service, part, replacement or repair
• The nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions
• The consumer's rights, including the right to repair or replace the supplied asset or the right to a price reduction, or the risks he may face

which causes or is likely to cause the average consumer to take a transactional decision which he otherwise would not have taken

• Paragraph 2 of the same article, found in the link to Book 6 above, provides a 'confusion with competition' clause and a code of conduct clause. Additionally, the English translation is not up-to-date with amendments from Directive 2019/2161 one of which is under this article 193c in the Jan 2023 version of Book 6 (NL): Also misleading is: 'marketing of a good in one Member State, whereby the good is presented as identical to a good marketed in other Member States, while the composition or characteristics of that good differ significantly, unless justified by legitimate and objective factors'

​

2.3. Misleading purchase invitation (Art. 193e Book 6 CC)

In the case of an invitation to purchase Definition Art. 193a(1g): invitation to purchase: a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase if not already apparent from the context, the following information shall be regarded as material in the sense of Article 6:193d paragraph 2 (misleading omission):

1. The main characteristics of the product, to an extent appropriate to the medium and the product
2. The geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
3. The price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
4. The arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
5. If there is a right of withdrawal or cancellation, the existence of such a right

In May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the 2023 NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 

2.4. The commercial practices ‘Blacklist’ EN / NL (Jan 2023)

• Article 193g sets out commercial practices which are misleading in all circumstances (and therefore unfair under Article 193b (3a) Book 6 CC)
• Art. 193i lists commercial practices which are aggressive under all circumstances (and therefore unfair under Article 193b (3b) Book 6 CC)
• The EN version of Book 6 linked above is out of date regarding amendments from Directive 2019/2161, some shown elsewhere in this section 
• Regarding the blacklist in particular, four clauses have been added:  

24. providing search results in response to a consumer's online query without clearly identifying a paid advertisement or payment made specifically to rank products higher
25. re-selling events tickets to consumers if the trader has obtained them by using automated means to circumvent any set limits on the number of tickets a person may purchase or other rules applicable to the purchase of tickets;
26. stating that product reviews are submitted by consumers who have actually used or purchased the product, without taking reasonable and proportionate steps to verify that those reviews are actually from such consumers;
27. posting or causing the posting of false consumer reviews or recommendations or misrepresenting consumer reviews or social media endorsements in order to promote products

3.  SPECIFIC CLAIM AREAS

3.1. Pricing

Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say

Applicable self-regulation

• Dutch Advertising Code Section A (EN) General 
• SRC Check for Unfair Advertising and Information Obligations - Total Price
• Advertising Code Committee Case Kia Picanto 2012/00088 EN
• Chairman’s Decision ‘Scooter’ Case No. 2017/00281 EN

Applicable legislation and guidance

Note:  the Decree under the second bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC relating to the requirement for total/ final prices to be stated. With amendments from the Directive 2019/2161, the PPD incorporated a new article 6a, which sets out provisions for reduced/ promotional pricing. The ACM - the Dutch consumer protection authority - has May 2022 news here (NL) and this March 2022 article from Maverick Avocaten is helpful

• European Commission guidance for the application of article 6a of the Directive referenced above (PPD) is here
• The Product Pricing Decree NL / EN (both links reflect Jan 2023 legislation) is the implementation in the Netherlands of the Product Price Directive (PPD) 98/6/EC; see article 5 of the decree in particular. Article 5a is the transposition from the PPD of new promotional pricing rules 
• Dutch Civil Code Book 6 NL / EN (the EN trans is out of date regarding amendments from Directive 2019/2161 shown above under 2.2. to 2.4 inc. but the price-related articles we reference in this point remain applicable); title 3, Section 3A Unfair Commercial Practices articles 193b (3a); 193c (1d); 193d (1-4); and 193e (c); amend to art. 194 here
• ACM Authority for Consumers and Markets Price Promotions note EN, albeit dated December 2016
• Case law: Court of Justice of the European Union (CJEU) C‑476/14 (Citroën/ZLW) Judgement and AG Opinion 

Self-regulatory clauses

• Art. 8.3 DAC: Advertising is also regarded as misleading if it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves the following:

3. Omitting, keeping hidden, or providing in unclear, unintelligible, ambiguous or untimely manner essential information which the average consumer needs in order to make an informed transactional decision

• Art. 8.4 DAC In the case of an invitation to purchase in advertising, which does not relate to a distance contract or off-premises contract, the following material information must be provided:

3. The price including taxes, or where the nature of the product means that the price cannot reasonably be determined beforehand, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these costs cannot reasonably be calculated in advance, the fact that such additional costs may be payable

• In case the medium used for advertising has its limitations in space or time, these limitations as well as the measures taken by the advertiser to supply the information in another way, will be taken into account when deciding whether information has been omitted. Essential information consists among other things of all information the advertiser has to provide pursuant to the law (explanation of article 8.3)

New article 8.6 Price reduction; transposed from the Directive 2019/2161 which amended the Product Pricing Directive 98/6/EC

Advertisements that mention a price reduction for a particular product, always state the lowest price that the advertiser has applied for that product prior to the promotion during a period of at least thirty days before the discount takes effect. The foregoing does not apply to goods that deteriorate or expire rapidly, for products that have been on the market for less than thirty days and for price reductions that are progressively increased, in accordance with the Product Price Indication Decree.

Example case: Kia Picanto EN. Extracts below

• In May 2012, the Board of Appeal (CVB) of the Advertising Code Committee made an important ruling on the stated price of a Kia Picanto in a TV commercial and on the Kia website as “from” and “available from” €7,995. The complaint was that the car could not be bought for that price; there were mandatory additional costs amounting to c. €700
• The Board ruled that this advertising constituted an invitation to purchase, which must always state the “total price” i.e. a price in which all costs are included in so far as these costs (1) can be determined in advance (2) are unavoidable and (3) are not apparent from the context of the advertisement
• The entry-level price excluded “ready-for-use” (delivery) costs, as well as other admin charges and recycling fees. The Board ruled that these costs would have been known at the time of publication, and so should have been included in the advertised price. Because the delivery costs were considerable, and led to a "significantly higher purchase price" compared to the price quoted, the average consumer may have been enticed to make a purchase decision that he would not otherwise have taken
• The total price not being shown was ruled to be a misleading omission under Article 8.3 (c) DAC in connection with Article 8.4 (c). The Appeal Board therefore considered the advertising to be unfair in the sense of article 7. The article Advertising shall not be dishonest. Advertising is considered to be dishonest if it contravenes the requirements of professional commitment, and if it substantially disrupts or may disrupt the economic behaviour of the average consumer reached, or targeted, as regards to the product. Misleading and/ or aggressive advertising is considered to be (by any means) dishonest

The Chairman’s scooter

The 2017 'Scooter' case (Chairman’s Decision Case No: 2017/00281 EN). Because the final price is not stated, the Chairman considers the advertising in violation of art. 8.4c DAC in conjunction with article 2b of the Prices Act and article 3 paragraph 1 of the Product Pricing Decree (EN)

Comparing prices

• See article 13c and final paragraph of that article of the DAC Section A 
• SRC Check Advice Unfair Advertising

Other types of pricing deception within the DAC; Annex I

• Bait Advertising/ Limited Supply Offer: Offering products for a specified price without disclosing the existence of any reasonable grounds the advertiser may have for suspecting that he might not be able to supply, nor have another advertiser/ trader supply, these products or similar products at that price, for a period that is, and in quantities that are, reasonable, taking into account the product itself, the range/ scale of the advertising campaign for this product and the price offered (Pt. 5, Annex I DAC). See SRC Check advice here
• Bait and Switch: Offering a product for a specified price and subsequently:

• Refusing to show the consumer the offered product; or
• Refusing to accept an order or refusing to deliver the product within a reasonable term; or
• Showing a defective example of the product

        With the intention to promote another product (Point 6 (a-c), Annex I DAC)

• Free: Describing a product as “gratis” (gratis); “free” (voor niets); “without charge/ complimentary” (kosteloos) or similar if the consumer has to pay anything other than the inevitable cost of responding to the offer and collecting or paying for delivery of the product (point 19, Annex I DAC). See SRC ‘Checker’ advice on ‘Free’ here:
  http://www.g-regs.com/downloads/NlGenSRCCheckFreeNote.pdf (EN)

Case law 

Key points from case C‑476/14 Citroën/ZLW):

• Where an advertisement mentions the price of a product, the selling price must be stated; this means the final price including VAT and include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned (para. 37 Citroën case). Other price components = integral parts of the final price (para. 23)

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SECTION B CONTENT RULES

1. SELF-REGULATION; the 2024 ICC Code

1.1. General provisions

2. THE LAW 

2.1. General provisions from the Unfair Commercial Practices Directive  (UCPD)
2.2 Specific pricing measures 
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD

2.3. The AVMS Directive 

2.4. The Empco Directive 

2.5. The Green Claims Directive ​
 

1.1 General provisions 

Basic principles (Art. 1)

• All marketing communications should be legal, decent, honest and truthful;
• All marketing communications should be prepared with a due sense of social, environmental and professional responsibility and should conform to the principles of fair competition, as generally accepted in business;
• No communication should be such as to impair public confidence in marketing.
• No communication should in the content and manner made undermine the public’s trust and confidence in marketing communications.

Social responsibility (Art. 2)

• Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation;
• Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, physical attributes, mental health, disability, or sexual orientation. Marketers are encouraged to be mindful of diversity and inclusion (see ICC guidance on diversity and inclusion in advertising, 2023) and seek to avoid stereotypes and objectification. Explanation Stereotyping is the practice of referring to or playing on an oversimplified and untrue notion of a particular group, sometimes employing archetypal traits. Objectification means representing people not as persons or individuals but as objects of sexual or other templating character.
• No marketing communication should be associated with corrupt practices (See ICC Rules on Combatting Corruption which defines in Part 1 “Corruption” or “Corrupt Practice(s)” as used in these rules shall include bribery, extortion or solicitation, trading in influence and laundering the proceeds of these practices) of any kind.
  Marketers should take due account of the ICC Rules on Combating Corruption and other ICC anti-corruption tools 
  ​

Marketing communications should not:

• without justifiable reason play on fear or exploit misfortune or suffering;
• appear to condone or incite violent, unlawful anti-social behavior or animal abuse;
• appear to encourage or condone irresponsible use or harmful behaviour;
• play on superstition;
• marketing communications should not appear to condone or encourage actions which contravene the law, self-regulatory codes or generally accepted standards concerning climate change, sustainable and environmentally responsible behaviour;
• they should respect the principles set out in Chapter D on environmental claims in marketing communications and be mindful of the ICC Framework for Responsible Environmental Marketing Communications

Decency​ (Art. 3)

• Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned.
• Marketing communications should not contain anything which offends standards of decency currently prevailing in the country and culture concerned and strive to respect social norms and tradition;
• Marketing communications should not incite or condone hate speech by using elements associated to it, such as false testimonials or endorsements, conspiracy theories, or other means to circulate harmful content

Honesty (Art. 4)

• Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge;
• Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account.
• Marketing communications should be structured in a way that does not take advantage of consumer trust or exploit their inexperience or limited understanding;
• Relevant factors that can affect consumers’ decisions should be communicated in a manner and at a time that allows them to consider them effectively;
• High-pressure marketing tactics which might be construed as harassment or hamper consumer choice, should not be used;
• Marketing communications should not abuse the trust of consumers by using deceptive practices or spreading disinformation using elements such as false testimonials or endorsements, conspiracy theories, such as bait and switch or clickbait. Nor should they knowingly support, engage in, facilitate or fund illegal activities. See ICC Statement on Misplaced Digital Ads.