Sustainability Claims In Advertising Ruled Misleading By Dutch Advertising Committee – Advertising, Marketing & Branding

A trade mark provides the holder with benefits for use
in commercial practices, as it can for example be used in
advertisement. However, it is key to ensure that advertising meets
the requirements laid down in the Dutch Advertising Code, and, in
case any sustainability claims are included, the advertising must
also comply with the Dutch Advertising Code on Sustainability
(hereinafter together referred to as the ‘Code’) and of course to Dutch advertising
laws. Anyone who feels that an advertisement violates the Code may
submit a complaint to the Dutch Advertising Committee (the
‘Committee’).

Sustainability is a hot topic, especially in the fashion and
food industry. Not surprisingly, large retailers use their
advertising to show that they are actively engaged to this. The way
they do, is unfortunately not always the right one.

For instance, multinational fashion retailer Primark has been making misleading
sustainability claims as it used slogans in the company poster
campaign including texts such as “Reducing CO2 emissions
by 50%“. So the earth can breathe“, and
“Organic, recycled, sustainable and affordable
cotton“. Primark put an explanatory note nuancing its
statements, however this was so small that consumers could easily
miss it. The Committee and later the Board of Appeal found that it
was insufficiently clear that the slogans refer to Primark’s
ambition and did not relate to the actual situation, and ruled that
this way of advertisement was misleading to the public.

Also Arla Foods (‘Arla‘),
an international dairy cooperative, failed to bring its advertising
in line with the Code. In short, Arla stated on its website and
products that her biological dairy products are climate-neutral.
Said indication was taken over by several Dutch grocery stores.
However, Arla interpreted the term ‘climate-neutral’ in a
specific way, namely in relation to the guidelines of the Climate
Neutral Group. After a first decision of the Committee that this
way of advertising is misleading, Arla added an asterisk to some of
her ‘climate-neutral’ claims, which referred to the
following statement: “according to the Climate Neutral
Group”. However, the asterisk was not added to all
climate-neutral claims, and the explanatory statement was placed at
the very end of the webpage in small letters. Recently, the
Committee ruled that the attention of the average consumer is still
not sufficiently drawn to Arla’s specific interpretation of the
term ‘climate-neutral’, and thus that Arla is still
misleading the public. In addition, the Committee also found that
the Dutch grocery stores which took over Arla’s statements were
guilty.

To conclude, it is important that your advertisements comply
with the Code and Dutch advertising laws. In that respect, make
sure that claims are substantiated with objective and verifiable
facts, ensure a clear visibility of your explanatory notes, and be
clear about the differences in actual situations and ambitions.

Originally Published 2 February 2024

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.