Stek victorious for Eneco in appeal against Advertising Code Committee decision on sustainability claim and communication of sustainability ambition

Stek has successfully represented energy supplier Eneco in an appeal procedure before the Board of Appeal of the Advertising Code Foundation (College van Beroep van de Stichting Reclame Code, the BoA) against a decision of the Advertising Code Committee (Reclame Code Commissie, the ACC). The procedure related to a radio commercial by Eneco, in which Eneco communicates its sustainability ambition through the statements “Become climate neutral faster? We are doing it now!” and “Climate neutral by 2035? We are doing it now!”

Eneco lodged an appeal against the ACC’s ruling that the radio commercial was in violation of article 3.1 of the Code for Sustainability Advertising (Code voor Duurzaamheidsreclame, the CSA), which stipulates that a sustainability claim must be presented in a clear, specific, accurate, and unambiguous manner, and article 3.2 of the CSA, which states that when an advertiser communicates about a sustainability ambition, it must be made sufficiently clear that it concerns an aspiration and not the current situation. By decision of 29 November 2023, the BoA upheld Eneco’s appeal and overturned the decision of the ACC. Unlike the ACC, the BoA ruled that it is sufficiently clear for the average consumer that Eneco refers to an aspiration or sustainability ambition in its radio commercial, and that the average consumer will understand that the statement “Climate neutral in 2035? We are doing it now!” expresses an ambition, and does not pertain to the current situation.

The decision of the BoA dated 29 November 2023 can be read here (in Dutch).

Dutch laws and regulations on sustainability advertising stem from European directives on misleading and comparative advertising as well as unfair commercial practices, and are laid down in both the Unfair Commercial Practices Act (Wet oneerlijke handelspraktijken, the UCPA) and the CSA (as part of the Dutch Advertising Code (Nederlandse Reclame Code)). The CSA, developed by the Advertising Code Foundation (Stichting Reclame Code), the authority for self-regulation in advertising, serves as a framework for the ACC and the BoA to assess sustainability claims. Consumers, businesses, or organizations that believe an advertisement is in violation of the CSA can file a complaint with the ACC. The Authority for Consumers & Markets (Autoriteit Consument & Markt, the ACM) is responsible for supervising compliance with the UCPA by advertisers. In case of a violation of the UCPA, the ACM can take enforcement action and impose a fine or a cease and desist order (last onder dwangsom). Detecting and countering misleading sustainability claims, also known as ‘greenwashing’, is high on the agenda of the ACM. On June 13, 2023, the ACM published a new version of the Guidelines regarding Sustainability Claims (the Guidelines, in Dutch), which explain how the ACM applies consumer legalisation related to unfair commercial practices to sustainability claims. The Guidelines contain rules of thumb and practical examples to assist companies in formulating sustainability claims.

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