EmpCo aims to enable consumers to make more informed and sustainable choices. It applies to Business-to-Consumer commercial practices and targets greenwashing, non-credible sustainability labels, misleading social claims and practices associated with the shortened lifespan of goods and digital services, including software. The obligations apply to any ‘trader’, meaning a business or professional person that sells, markets, or promotes products or services to consumers.
The new rules raise the bar for sustainability marketing and product information and require businesses to review existing claims, labels and consumer communications. We highlight some of the key changes.
Stricter rules on environmental claims
EmpCo introduces several ‘blacklisted’ practices that are prohibited in all circumstances, including the following practices relevant to environmental claims:
Generic environmental claims
Claims such as ‘environmentally friendly’, ‘eco-friendly’, ‘green’, ‘climate friendly’, ‘energy efficient’, ‘biodegradable’ or ‘biobased’ are prohibited, unless the trader can demonstrate recognised excellent environmental performance relevant to the claim, for instance under the EU Ecolabel or an officially recognised EN ISO 14024 type I ecolabel. A claim is not ‘generic’ if its specification is provided in clear and prominent terms on the same medium or good. Broader terms such as ‘sustainable’, ‘conscious’ or ‘responsible’ can further not be based solely on environmental performance, as they also relate to social characteristics.
Whole-product claims
Making an environmental claim about an entire product or business when the environmental claim concerns only a certain aspect of the product or a specific activity. For example: claiming that an entire bottle is made from recycled plastic when only the cap is made from recycled plastic, is not allowed.
Offsetting claims
Claiming that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions based on carbon offsetting, for example by purchasing carbon credits from projects that reduce or remove emissions elsewhere to compensate for the product’s own emissions. For example, a company may not claim that a flight is ‘climate neutral’ because it has purchased carbon credits to offset the flight’s emissions. Companies may still communicate about investments in climate projects, provided they do so in a non-misleading way.
Legal requirements as a unique selling point
Presenting requirements that apply by law as a distinctive feature of the companies’ offer. For example: advertising a product as “free from substance X” when the use of substance X is already prohibited by law.
Consequence of blacklist
Although the above types of claims would often also already have been considered misleading under Dutch case law before, because of their inclusion on the blacklist no case-specific assessment is required of whether the practice materially distorted, or was likely to materially distort, the average consumer’s economic behaviour. If a practice falls within a blacklist provision, it is unfair and prohibited in all circumstances.
Sustainability labels
EmpCo significantly restricts the use of sustainability labels. A sustainability label is any voluntary trust mark, quality mark or equivalent that aims to set apart and promote a product, a process or a business by reference to its environmental or social characteristics.
Businesses may only display a sustainability label if it is established by a public authority or based on a qualifying certification scheme. Other sustainability labels are blacklisted and prohibited in all circumstances.
A qualifying certification scheme must, among other things, be based on third-party verification, have publicly available requirements, be open on transparent and non-discriminatory terms, provide procedures for non-compliance, and be subject to objective monitoring by an independent and competent third party.
This targets self-created company sustainability labels that lack independent certification, such as a company creating its own “Green Choice” badge and placing it on selected products without a qualifying certification scheme behind it. EmpCo aims to prevent the proliferation of such labels, which can make it difficult for consumers to assess their credibility. Businesses using sustainability labels should therefore carefully assess whether these can still be used under the new rules.
Claims about future environmental performance
Claims about future environmental performance, such as ‘net zero by 2040’, are not blacklisted under EmpCo, but may be considered misleading unless they are supported by:
- clear, objective, publicly available and verifiable commitments;
- a detailed and realistic implementation plan;
- measurable and time-bound targets;
- relevant implementation measures, such as allocation of resources; and
- regular verification by an independent third-party expert, whose findings are made available to consumers.
In practice, this significantly raises the bar for future environmental claims. Businesses will need a credible plan and periodic independent verification of their plan and their progress. Naturally, such verification may be costly, particularly for smaller businesses.
As future environmental claims are not blacklisted, whether a claim is misleading still requires a case-specific assessment, including whether it affected, or was likely to affect, the average consumer’s transactional decision-making.
Durability, repair and software updates
The Act also tackles shortened lifespan. Prohibited in all circumstances are, among other things:
- commercial communications about a good that contains a feature introduced to limit its durability, where information about that feature is available to the trader;
- falsely claiming a certain durability in terms of usage time or intensity; presenting a good as repairable when it is not;
- presenting a software update (for a stand-alone digital service or software incorporated into a product) as “necessary” when it only enhances functionality, or withholding information that an update will negatively affect functioning; inducing consumers to replace consumables, such as printer ink, earlier than technically necessary; and
- withholding information about impaired functionality when non-original consumables, spare parts or accessories are used, or falsely claiming that such impairment will occur.
Traders cannot present the durability of products in a more positive light than the facts allow. Traders are subject to these obligations not only when they have the information themselves, but also where reliable information is available to them, for instance from a competent authority or the producer. Producers are generally expected to be aware of features in their products that limit durability.
New pre-contractual information duties
Traders must provide additional information before a consumer contract is concluded, both in-store and online:
- a reminder of the statutory right to conformity, using an EU harmonised notice;
- where the producer offers a free commercial guarantee of durability covering the entire good for more than two years, information on that guarantee using an EU harmonised label;
- for goods with digital elements, digital content and digital services, the minimum period during which software updates will be provided;
- the repairability score where applicable or, if not, information on spare parts, repair instructions and repair restrictions; and
- environmentally friendly delivery options of the product, where available.
Several of these duties apply only where the producer has made the information available to the trader. However, according to the explanatory memorandum, this does not release traders from their own responsibility to inform consumers. Under Dutch law, the statutory conformity period may exceed two years, as it is linked to the expected lifespan of the product.
Traders are advised to review and update any precontractual information they provide and verify with the producer how long software updates will be provided for the products and services they offer.
Enforcement and civil liability risks
EmpCo introduces largely harmonised rules across the EU, making compliance more consistent for businesses operating in multiple Member States, although enforcement and sanctions may still differ nationally.
Administrative enforcement
The ACM is the competent authority for the new rules in the Netherlands and has various enforcement powers (Sustainability claims relating to financial products fall within the jurisdiction of the Dutch Authority for the Financial Markets (AFM)). It can, among other things, issue public warnings, impose binding instructions (eisen) or orders subject to periodic penalty payments (lasten onder dwangsom), and impose substantial turnover-dependent fines (bestuurlijke boetes). The ACM has announced that, together with other European regulators, it is working on further guidance and will update its existing Guidelines on sustainability claims (see our News Item from 2023).
Dutch Advertising Code Committee (Reclame Code Commissie)
The ‘soft-law’ codes of the Dutch Advertising Code Foundation are expected to be brought in line with EmpCo as well. The Advertising Code Committee is a popular and accessible forum for complaints about advertising: consumers can file complaints free of charge, which are then reviewed by a board of industry experts for compliance with the foundation’s codes. Although its recommendations are not legally binding, they are taken seriously in practice, including by the advertising industry and Dutch courts. Negative rulings carry PR risks.
Civil liability
Misleading sustainability claims or inadequate pre-contractual information may give rise to various civil claims under Dutch law. A misleading commercial practice is generally unlawful towards consumers, potentially supporting claims for injunctive relief, damages or, where applicable, termination (ontbinding) of the contract. However, a finding that a claim is misleading does not automatically entitle a consumer to damages: additional requirements for liability and compensation, including damage and a sufficient causal link, must also be met. Inadequate pre-contractual information may result in the nullity of the underlying agreement.
Old stock
For “old stock” produced or ordered before 27 September 2026, authorities may take a pragmatic, phased enforcement approach especially where immediate compliance creates genuine transitional difficulties or unnecessary waste. Companies should nevertheless make reasonable efforts to comply with EmpCo as soon as possible, while disproportionate measures such as destroying or recalling stock may be avoided. The Consumer Protection Cooperation Network has issued guidance on how to deal with old stock, and the ACM is expected to take a pragmatic approach initially. Timely action remains advisable to limit enforcement and civil liability risks.
Next steps
The new rules have applied since 27 September 2026, without a general transition period. Traders should review their sustainability claims, labels, packaging, websites and advertising without delay and phase out non-compliant claims and uncertified labels. Traders of goods should also check that their pre-contractual information and online checkout flows reflect the new information duties. For old stock, documenting compliance efforts may be important in enforcement discussions with the ACM.
How Houthoff can help
We help businesses assess their sustainability claims and labels under EmpCo, identify potential greenwashing risks, review pre-contractual information and translate the new requirements into practical guidance for marketing and communications.