Sustainability claims in advertising ruled misleading by Dutch Advertising Committee

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.