ACM publishes revised Guidelines regarding Sustainability Claims

On 13 June 2023, the Netherlands Authority for Consumers and Markets (ACM) published a new version of its Guidelines regarding Sustainability Claims. This update replaces the January 2021 version.

In the revised Guidelines, ACM clarifies its interpretation of the unfair commercial practices rules on sustainability claims aimed at consumers. The update reflects ACM's findings in enforcement procedures in the past year, as well as feedback from market participants and EU developments.

The new Guidelines further clarify and specify the rules on sustainability claims, including by giving more examples of misleading and non‑misleading claims. The aim here is to better equip companies to help them make sound sustainability claims. The Guidelines' substantive requirements have not changed.

Environmental claims, social claims and claims about the useful life of a product, service, business or business process qualify as sustainability claims under the Guidelines. The Guidelines are structured according to five rules of thumb with which companies making sustainability claims must comply:

1. Use correct, clear, specific and complete sustainability claims
2. Substantiate your sustainability claims with facts, and keep them up to date
3. Make fair comparisons with other products or competitors
4. Describe your future sustainability ambitions in concrete and verifiable terms
5. Make sure that visual claims and labels are useful to consumers, not confusing
    

The first two rules of thumb are general rules that apply to all sustainability claims. Rules three to five specifically pertain to comparative claims aimed at consumers, sustainability ambitions, and quality marks or any other visual claims.

As such, ACM's Guidelines to some extent anticipate the European Commission's Proposal of 22 March 2023 for a Directive on Green Claims and its Proposal of 30 March 2022 for a Directive amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and better information. These Directives are part of the EU circular economy action plan. As they are still only proposals subject to change, more updates of the Guidelines may be in store.

ACM has stated that it already started enforcement last year, focusing especially on sectors where sustainability is a key factor in consumer purchase decisions, such as clothing and energy.

Aside from ACM's Guidelines regarding Sustainability Claims, two more regulatory frameworks were published recently (one in draft form). On 1 February 2023, the Advertising Code Committee's Sustainability Advertising Code (Code voor Duurzaamheidsreclame) took effect, replacing its previous Environmental Advertising Code (Milieu Reclame Code). In addition, on 12 June 2023, the Dutch Authority for the Financial Markets (AFM) put its Guidelines on Sustainability Claims up for consultation. These Guidelines provide tools for financial institutions and pension providers to help them make sound sustainability claims.