Media Act Dec 2020
New NRC links Dec 2020
Directive 2019/2161 Section E Jan 2021
New Postal Filter code April 2021
New Media Act link July 2021
Google's environmental claims policy Oct 2021
Commission Guidance UCPD December 2021
G-Star jeans ruling December 2021
IAB TCF Framework and GDPR. Feb 2022
Commission guidance promotional/ reduced pricing
March 2022 version of the Media Act (NL)
KLM's 'carbon zero' claims April 2022 ruling (NL)
CvdM announcement re Influencers May 2022 (NL)
Revision of General section DAC May 2022
And Book 6 Civil Code, both re Directive 2019/2161
News/ background re above here (NL); effective July 1, 2022
Google says cookie here to stay until 2024 July 27, 2022
ACM case H&M & Decathlon (EN) Sept 2022
Influencer rules assembled by DDMA Oct 2022 (NL)
Above decision re this advertising Oct 2022
A case about CO2 neutral bananas (NL) Oct 2022
Above November 22, 2022; CMS/ Lex commentary here (EN)
September 2022. The DDMA, trade association for data-driven marketing, publish All the rules for influencers in one place (NL), 'the place where all the rules come together in a well-arranged way.'
Revision of the General section of the Dutch Advertising Code misleadingness clauses under article 8.3 (clauses d and e) to incorporate e-Commerce rules from the 2019/2161 Directive related to search results and consumer reviews. The full code is here in Dutch (same link as used throughout this database); not yet officially translated, non-binding unofficial English translation of the clauses here. Also transposed in Book 6, Dutch Civil Code (NL)
Update of Social Media and Influencer Marketing Code effective July 1, 2022; unofficial EN translation here
Osborne Clarke/ Lexology May 25, 2022
Taylor Wessing/ Lexology July 19, 2022
Stichting Reclame Code (SRC) is the Self-Regulatory Organisation in the Netherlands. The SRC publishes the Dutch Advertising Code (DAC) NL / EN - except May 2022 clauses here), which applies to all advertising regardless of the medium. The DAC is in three sections: General Section (EN; see note above); a section of various Special Advertising Codes; and a General Recommendations section (EN). The General Section contains a body of rules with which all advertising should comply. The Special Codes apply to advertising for specific products and services, or using specific channels; see Channel section below.
There is also the:
Children/ Young People Advertising Code (EN) and the
The General Recommendations Section C (EN) covers topics such as guarantees, superlatives, and product images.
Articles 193a-193j (EN; not up to date - see later entry in this para/ NL) of Section 3A, Book 6 of the Dutch Civil Code prohibit various unfair practices by traders towards consumers, implementing the key provisions of the Unfair Commercial Practices Directive UCPD 2005/29/EC, whilst articles 194-196 (NL / EN key clauses; amend to art. 194 here) of Section 4 regulate comparative advertising as derived from Directive 2006/114/EC. These rules are accurately reflected in the DAC referenced and linked above - see Table of Concordance under Annex 2. The Act of 30 March 2022 (NL) amending Book 6 of the Civil Code, the Consumer Protection Enforcement Act and the Prices Act in connection with the implementation of Directive 2019/2161 provides new clauses related to search rankings and consumer reviews, also expressed in the Dutch Advertising Code under article 8; see the Self-Regulation header above and the clauses in English here.
There is a particularly active competition authority in The Netherlands; the recent work of ACM (Authority for Consumers and Markets) is discussed here (NL) by Maverick Advocaten/ Lex September 13, 2022. Also see environmental claims header below: 'greenwashing' is very much in the ACM's sights.
The 7 Channel codes from the DAC are:
Code for distribution of advertisements by e-mail EN
Letterbox advertising, door2door sampling and direct response advertising EN
Advertising Code for the use of the postal filter 2021 EN
Code for the distribution of unaddressed printed advertisements EN and
Field Marketing Advertising Code EN
Rules from these are set out under the relevant headers in our Channel Section C
Statutory regulation of Dutch audiovisual media in the Netherlands is from the 2008 Media Act (NL, March 2022). The linked act includes amends brought about by the 2018/1808 Directive which amends the AVMS Directive 2010/13/EU, ‘in view of changing market realities’ meaning inter alia that video-sharing platforms are now in scope of the Media Act (Chapter 3a; NL). There is some debate about the application of the rules as they relate to an ‘on-demand audiovisual media service’ and whether this definition ‘catches’ vloggers. In May 2022, the Media regulator CVDM issued New rules for video uploaders (NL summary) effective July 1, 2022. These require that influencers who are active and have more than 500,000 followers/ subscribers must register with CVDM no later than July 15 and with the Dutch SRO and NICAM. An overview of the rules is here (NL, non-binding translation here). A registration check is on the CVDM website and can be found from the preceding link.
The Telecommunications Act (link is to the July 2021 version incorporating amends that prohibit unsolicited calls and abolish the 'do not call me' register) NL / EN (key clauses only) Article 11.7 implements the E-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent of the user. Tracking cookies are presumed to entail the processing of personal data under the DPA, meaning prior unambiguous consent of the user is required. There may also be implications from the introduction in May 2018 of the GDPR. See below.
Privacy issues should be reviewed with specialist advisors
From May 25 2018, the Dutch Personal Data Protection Act was repealed in the light of Regulation 679/2016, the General Data Protection Regulation (GDPR), which repeals Directive 95/46/EC which the Dutch act transposed. The European Commission page on GDPR is here. The GDPR 'implementing' act in the Netherlands is here (NL). The Authority Autoriteit Persoonsgegevens AP supervises processing of personal data; their advice on the introduction of the GDPR is here, albeit only in Dutch at this point. Purely commercial interest also a legitimate interest? courtesy of Stibbe/ Lex July 27, 2022 reports on a significant exchange between AP and the Council of State on the subject of legitimate interest and a 'wrongly imposed' €575,000 fine on VoetbalTV.
Directive 2019/2161/EU inter alia brings new promotional pricing rules under article 2; see below
When a price is mentioned in advertising, the final/ total price should be indicated, including VAT and all other price components; see recent ‘Scooter’ case EN. The basis of this ruling was from the UCPD (per above, under consumer protection), as reflected in article 193 of the Dutch Civil Code EN. In the Netherlands, the Product Pricing Directive 98/6/EC is implemented in the Product Pricing Decree PPD NL / EN. Also known as the Price Labelling Regulations, they apply to advertising (Art. 5.1 PPD). With amendments from the Directive 2019/2161, the 98/6 Directive incorporated a new article 6a which sets out provisions for reduced/ promotional pricing, Commission guidance for the application of which is here. Rules were supposed to come into force in member states on May 28, 2022, though there have been some delays. In the Netherlands, the Prices Act (Prijzenwet, NL) establishes under article 2b 'the announcement of price reductions'. The ACM (Authority for Consumers and Markets) covers the issue of new rules on promotional pricing in their news item of 27/5/22 here (NL), which states that rules will come into force 'later this year'; Maverick Advocaten NV comment in a March 2022 Lex article Amendment to the Prices Act (NL). The ACM also has a note on price promotions EN and advertised prices of new cars EN and both the Dutch Advertising Code, supplemented by the SRC Check on Unfair Advertising, and the Civil Code Book 6, Section 3A, include further pricing provisions such as use of the term ‘free’ and ‘Bait and Switch’ advertising. See our following Content Section B for details, or the linked files.
Competition authorities hold the key to avoid the drastic consequences of climate change, according to Chairman Dutch ACM. June 2022 article from Bird&Bird/Lex here
Key legal and self-regulatory measures
The use of environmental claims in advertising may be assessed against general misleadingness legislation articles 193a-j from Book 6 of the Civil Code (EN; does not incorporate new clauses here) on unfair commercial practices (EN) and Section A of the Dutch Advertising Code (EN; see new clauses linked earlier), articles 7 and 8. See also Commission Guidance on application of the UCPD (December 2021) for such claims, section 4.1.1. From a specific Self-Regulatory perspective, the SRC’s Code for Environmental Advertising (NL / EN) applies. This is supplemented by the SRC Check: Environment and Sustainability (NL), as well as the SRC Checklist. Additional guidance on environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (November 2021), which includes an environmental claims checklist. Our following Content Section B for details of all of the above, or see the linked files.
The ACM (Authority for Consumers and Markets, per above) publish Guidelines Sustainability Claims (EN, NL here) on which CMS Netherlands comment in an article Sustainability, Advertising and Greenwashing. According to Maverick Advocaten NV June 2021, ACM has asked more than 170 companies in the energy, dairy and clothing sectors to check the accuracy of their product range against the Guidelines. In September 2022, clothing retailers H&M and Decathlon agreed to remove or adjust all environmental claims from their clothes and websites 'and make donations of 400,000 euros and 500,000 euros, respectively, to different sustainable causes to compensate for their use of unclear and insufficiently substantiated sustainability claims.' Case report from the ACM in English here and commentary from GALA here.
This August 2021 ruling (NL) from SRC against Shell is instructive; context and commentary from Jones Day here (in English), and this April 2022 ruling (NL) versus KLM's 'carbon zero' claims, which was found to have lacked sufficiently strong evidence for an 'absolute' claim, is also significant and is separately followed up in the courts under UCPD. Commentary here from Clyde & Co LLP/ Lex July 2022. This case (NL) about Albert Heijn's bananas being CO2 neutral demonstrates the danger of unsupported statements.
The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. This latter has been diligently developed with SROs and other associations. On 7 October 2021, Google launched a new monetisation policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here.
|As the whole territory of environmental claims is high profile for well-documented reasons, we reference two late 2021 Self-Regulatory cases, one from the U.K. and one from Sweden. The UK case relates to Lipton Ice Tea: a complaint about a '100% recycled' claim was upheld despite the advertising including a qualification; an interesting commentary here from GALA/ Mondaq with reference to a similar case in the U.S. The Swedish case concerns a complaint against an Innocent Drinks 'greenwashing' claim ('fixing the planet'); the commercial has been withdrawn, but there's (not entirely objective) reference to it in this activist video.|
1.1. Section A General rules, Dutch Advertising Code
Invitation to purchase
Blacklist: annex 1 and 2
Use of ‘comparable retail value’
The term ‘recommended price’
Advertising for branches
Pictures of the product
2.1. Comparative advertising
2.2. Misleading commercial practices
2.3. Invitation to purchase
2.4. The Blacklist
3. SPECIFIC CLAIM AREAS
Note: where the English version of the Dutch Advertising Code below does not accurately reflect the Dutch version, or the European Directives from which part is derived, we have ‘tweaked’ it for presentation in the articles that follow, for easier understanding. The applicable code for adjudication purposes is anyway the Dutch version, and you can always refer back to the SRC English version. We have extracted the most important of the rules and in some cases linked particular explanations; the full Code in English is linked here (does not include May 2022 clauses here)
Above clauses d and e added May 2022 in transposition of Directive 2019/2161
(Art. 8.4. Explanation An invitation to purchase is defined as a commercial message stating the characteristics and the price of the product in a way appropriate to the medium used, and thus enabling the consumer to make a purchase. If the advertisement contains an answering or ordering mechanism, it is always considered to be an invitation to purchase. In case such a mechanism is missing, it depends on the circumstances whether there is a matter of an invitation to purchase. A key factor is whether the consumer can base a decision about the transaction on the information in the advertisement. If the advertisement states a (starting from) price, the consumer usually has sufficient information to decide to make a transaction)
Invitation to purchase in relation to a distance or off premises contract
Aggressive advertising (Art. 14. Explanation ‘Undue Influence’ is defined as taking advantage of a dominant position in order to apply pressure on the consumer even without the use of violence or threat of violence, in such a way that the consumer’s ability to make a well-informed decision is considerably reduced. The methods of advertising as referenced in Annex 2 of the Dutch Advertising Code are considered aggressive under all circumstances)
Blacklist: Annex 1 and 2
Annex 1 contains advertising practices considered misleading under all circumstances, whilst Annex 2 lists advertising practices considered aggressive under all circumstances. The following blacklist clauses are added in the NL version of the DAC, having been transposed May 2022 as a result of Directive 2019/2161 amends; EN version of the DAC not yet showing these clauses. Translation largely taken from the Directive
The topics below are set out in full here (EN)
Use of words ‘comparable retail value’
Use of the term ‘recommended price’
Advertising for branches
Pictures of the product
This is a service in Q&A/ Do’s and Don’ts format that is intended to help with some of the major issues such as taste and decency, information requirements etc. that can be encountered when developing advertising. Those issues are set out below largely by way of linked files, as their exploration is quite intricate and lengthy. The information below and linked has been translated from sites that are amended on a regular basis. Whilst we try to keep the translation updated, for the most recent information, it may be best to check the Dutch version linked above
Taste and decency
Recognition of advertising
For guidance on identifiability across several issues/ channels, including example cases
A section on the ‘Blacklist’, i.e. those commercial practices in all circumstances considered unfair
Last updated by SRC 10/10/2017 NL
Key extracts in English here:
While advertising regulation is largely a Self-Regulatory system, legislation is influential in Channel especially, but also in Content. Issues of unfair commercial practices and comparative advertising can end up in the courts, so it’s best to know what the laws say, albeit they are largely echoed in Self-Regulation, in the Netherlands in particular
1. Comparative advertising means any advertising that explicitly or by implication identifies a competitor or goods or services offered by a competitor
2. Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:
a. It is not misleading or a misleading commercial practice referred to in Articles 193c to 193g
b. It compares goods or services meeting the same needs or intended for the same purpose
c. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
d. it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trademarks, trade names, other distinguishing marks, goods or services and those of a competitor
e. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor
f. For products with designation of origin, it relates in each case to products with the same designation
g. It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products
h. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name
3. Any comparison referring to a special offer shall indicate in a clear and unequivocal way the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the date of the start of the period during which the special price or other specific conditions shall apply
which causes or is likely to cause the average consumer to take a transactional decision which he otherwise would not have taken
In the case of an invitation to purchase Definition Art. 193a(1g): invitation to purchase: a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase if not already apparent from the context, the following information shall be regarded as material in the sense of Article 6:193d paragraph 2 (misleading omission):
In May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file
Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say
Applicable legislation and guidance
Note: the Decree under the second bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC relating to the requirement for total/ final prices to be stated. With amendments from the Directive 2019/2161, the PPD incorporated a new article 6a , which sets out provisions for reduced/ promotional pricing. These should have come into force in member states on May 28, 2022, though there have been delays. In the Netherlands, the Prices Act (NL) establishes under article 2b 'the announcement of price reductions'. The ACM - the Dutch consumer protection authority - has May 2022 news here (NL) and this March 2022 article from Maverick Avocaten is helpful
Example case: Kia Picanto EN. Extracts below
The Chairman’s scooter
The 2017 'Scooter' case (Chairman’s Decision Case No: 2017/00281 EN). Because the final price is not stated, the Chairman considers the advertising in violation of Art. 8.4c DAC in conjunction with Article 2b of the Prices Act and Article 3 paragraph 1 of the Product Pricing Decree.
Other types of pricing deception within the DAC; Annex I
With the intention to promote another product (Point 6 (a-c), Annex I DAC)
Recommended price (adviesprijs) Point g, Section C (EN) Dutch Advertising Code
Key points from case C‑476/14 Citroën/ZLW):
Key legislation (see note above re amends to PPD 98/6/EC)
The Dutch Advertising Code: Environmental advertising
The SRC are the Self-Regulatory Organisation in The Netherlands. The ‘Check’ system has recently been introduced, and helps guide agencies and advertisers through the various Codes. It has not yet been formally translated. The extracts below have been translated by GRS, the owners of this website. As is always the case, the applicable rules are anyway those in the original Dutch. The file here is the full Check section on Environment and sustainability. Read it if you want further background and help on environmental claims:
Adjudication: File No. 2017/00812; 20/12/2017
Link no longer active; summary below
ACM Sustainability claims guidelines (January 2021)
ACM Is the Dutch consumer and markets authority, a stautory body. This is a significant document from an organsiation empowered to take action against companies they consider to be in breach. The linked document contains some explanations of the core 'rules of thumb' below, the legal context and some relevant cases
Comparative environmental claims should be assessed under the criteria from the Directive on Misleading and Comparative Advertising MACAD Article 4 / Article 194a Book 6 Civil Code EN / Article 13 Dutch Advertising Code (EN). These criteria apply to advertising that compares the environmental impact or benefit of different products. Under these provisions, such a comparison should therefore, among other things:
Incorporates TV and Radio and On-demand
The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here and they anyway reflect the amends to the Media Act separately conveyed
STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Public Broadcasting's television, radio and online outlets. Advertising rules are applicable to all their media services including, for example, websites or media services on demand (Art. 2.98 Media Act). STER is affiliated to the SRC self-regulatory advertising authority and is legally obliged to observe the Dutch Advertising Code (Art. 2.92 Media Act)
Checking for updates per above commercial amends
This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in Owned and (some) Earned space as well as Paid, which makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment The DAC definition is ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’
The impact of GDPR is shown under individual channel sections; in broad, when processing personal data related to e.g. databases for marketing purposes, lawful processing rules from the GDPR may now apply. Privacy issues should be reviewed with specialist advisors
Art. 15d Book 3 Civil Code (EN) from the E-Commerce Directive 2000/31/EC: Accessibility of data and information. See the linked file for requirements or under the Marketers’ Own Websites header later in this Channel Section C. Note: the information must be made ‘directly, easily and permanently accessible.’
The Telecommunications Act NL / EN Article 11.7 implements the E-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent. See provisions from the linked files or under the email header later in this Channel Section C. If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors
Article 193e from Book 6 of the Dutch Civil Code (EN) on 'Invitation to Purchase' covers information requirements for this type of advertising. Provisions are almost word-for-word per the DAC article 8.4 referenced above, as both sources derive from the UCPD 2005/29/EC. In May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file
EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024
Effective 19 January 2022
Note: In the old B2B Email Code, opt-in was not required for Emails sent to generic addresses (i.e. info@ or sales@). No mention of this exemption in the new Email code. SRC (the Self-Regulatory Organisation for the Netherlands) state it no longer applies, meaning opt-in required for these addresses
As the Self-Regulatory Email Code is comprehensive, clauses from legislation are not spelt out in this section
The same principle that applies in Paid space also applies in Owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the applicable Dutch Advertising Code (EN) as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below.
In the event that data processing identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
See linked documents for clauses. These are not set out below
Note July 2022: we are not sure whether the above have been amended in light of the update to the Code itself; checking with SRC
The requirements referred to in points a and b can be met in any event if the content and nature of the Relevant Relationship is disclosed clearly and in an easily accessible manner, e.g. by means of layout and/ or presentation. The content and nature of the Relevant Relationship is in any event clearly recognisable if it is formulated in accordance with the suggestions in the explanation to this article (see file linked above for explanation; it's a bit lengthy to place here)
Teasers are permitted except when the teaser causes or is likely to cause the average consumer to make a decision about a transaction that he would not otherwise have made
If there is advertising via social media aimed at children, the Children's and Youth Advertising Code applies in full in addition to this Code and the DAC (Art. 5 SMAC)
The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The key issue, obviously, is that of advertising identifiability, though native advertising is like any other advertising in as much as it should observe the rules spelt out in our earlier Content Section B, primarily those from the Dutch Advertising Code (EN - translation does not include May 2022 clauses here)
As self-regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause
Following feedback, we no longer cover Telemarketing
Includes unaddressed door-to-door
As Self-Regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause
The DAC Field Marketing code is linked below (EN)
And in the original Dutch here:
This Code applies to advertising relating to sale and promotion off-premise
Other topics covered in the Code linked above are:
Vulnerability (article 5)
Supplementary Provisions for Direct Sales
Supplementary Provisions for Door2Door Recruiting
This Code effective from 1 January 2016
B1. Principles Governing Sponsorship
B2. Autonomy and Self-Determination
B3. Imitation and Confusion
B4. 'Ambushing of Sponsored Properties
B5. Respect for the Sponsorship Property and the Sponsor
B6. The Sponsorship Audience
B7. Data Capture/ Data Sharing
B8. Artistic and Historical Objects
B9. Social and Environmental Sponsorship
B10. Charities and Humanitarian Sponsorship
B11. Multiple Sponsorship
B12. Media Sponsorship
The European Sponsorship Association (ESA) may also be able to help/ inform
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail and SP administration legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and Consumer Protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered to be a lottery and are generally illegal. As promotional advertising might be more ‘aggressive’, we include the measures from legislation and Self-Regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors.
A promotional game of chance must:
Notes accompanying Article 5: Promotion Definition Every form of promotion, whether direct or indirect, of the public profile of an organisation or the sales of goods or services (Art. 1.6)
Promotion may not be misleading in any way. Some examples of what may be misleading include the following:
1. Where commercial communication forms a part of a service of the information society or makes out such a service itself, the one who has instructed to use this way of communication has to ensure:
Under the Dutch Advertising Code, Section B (Special Codes): c. Contests: advertisements for prize promotions and contests in print and electronic media must contain at least the following information:
From the ICC Advertising and Marketing Communications Code, Chapter A. Key headers are
The Self-Regulatory Organisation SRC Stichting Reclame Code provides copy advice for a standard fee to advertisers, for example to those who have to adapt or withdraw an advertisement, to ensure that the amended advertisement complies with the decision of the Advertising Code Committee and/ or Board of Appeal. This advice is available only to advertisers who pay their annual financial contribution to the SRC. Advertisement copy advice is informal and non-binding; access is provided at: http://www.checksrc.nl/copy_advies. SRC also offers training on the rules of the DAC; you can check their website for the current offer or if you want a tailor-made training, you can contact the Compliance department of the SRC.
Besides Copy Advice and Training, SRC offers advertisers two websites (in Dutch) with explanations of the advertising rules: (1) www.checkdereclamecode.nl and (2) www.checksrc.nl. The first site offers a practical tool that makes it possible to check an advertisement or a campaign on the basis of a few simple questions. The second site offers advertisers the opportunity to go into a little more depth on specific subjects, such as misleading advertising, rules for children, and identification of advertising.
Pre-clearance is mandatory for Alcohol advertising on radio and television and in cinemas. Requests should be e-mailed to STIVA (the alcohol industry body) firstname.lastname@example.org and consist of a script, storyboard or video. Cost is €350 ex VAT; advice within 5 working days. Otherwise:
Direct to broadcaster
Allow 3-5 days TV/VOD
For help contact the Traffic Bureau email@example.com
Regulation (EU) 2016/679 of The European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force on May 25 2018
The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018.
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
Four recent and significant papers in the GDPR context:
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
Guidance: on 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’).
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC and pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.
Article 28b addresses video-sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
Book 6 Dutch Civil Code (Burgerlijk Wetboek Boek 6) Title 3 Unlawful acts; Section 3A Unfair Commercial Practices inserted into Book 6 by Article 2A of the Law of 25 September 2008 (NL) implementing the Unfair Commercial Practices Directive UCPD 2005/29/EC into national law by amending Books 3 and 6 of the Dutch Civil Code and the Consumer Protection (Enforcement) Law 2007. Section 4 Misleading and Comparative Advertising. Act of 28 March 2002 aligning Book 6 of the Civil Code with Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising; subsequently updated by Act of 25 September 2008 bringing Volumes 3 and 6 of the Civil Code and other Acts into line with Directive 2005/29/EC. Enforced by the Dutch Consumer Authority, since April 2013 the Dutch Authority for Consumers & Markets ACM. Book 6 was further amended in May 2022 as a result of transposition of commercial practices provisions set out in Directive 2019/2161, which inter alia amended the UCPD Directive 2005/29/EC to introduce new rules related to transparency of parameters for search results and the integrity of consumer reviews. Articles 193c and 193e are amended together with additions to the 'blacklist' set out under article 193g.
English translation below does not include amends via Act of March 29, 2016 consisting of three new paras under article 194; amend shown below the first link; neither does the translation include new clauses as outlined above as a result of amends from Directive 2019/2161. The key clauses are shown in English in a separate file here.
ACM: Autoriteit Consument & Markt; Authority for Consumers and Markets. The Consumer Authority, Competition Authority, and the Independent Post and Telecommunications Authority joined forces appropriately on April 1st 2013, creating a new regulator: the Netherlands Authority for Consumers and Markets. This merger has been authorised in the Establishment Act of the Netherlands Authority for Consumers and Markets (NL). ACM is an independent regulator that champions the rights of consumers and businesses, is charged with competition oversight, sector-specific regulation, and enforcement of consumer protection laws. Importantly in this context, the ACM publish Guidelines Sustainability Claims (EN) which provides their 5 'rules of thumb' related to sustainability claims, included within which document is the legal context and relevant cases. This is a significant addition to the regulatory line-up for environmental claims. The ACM announcement of ‘Stricter Rules for Online Sellers’ (NL) May 27, 2022 includes reference to the new search and review rules from Directive 2019/2161 as well as plans for promotional pricing rules (see below).
Product Pricing Decree.(Besluit prijsaanduiding producten). Decree of 21 May 2003 containing rules relating to the price indication of products to replace the Decree on the price indication of goods 1980 in connection with the adaptation to the system and terminology of the EC Directive on the stating of the price of products offered to consumers. Transposes the Product Pricing Directive (above under EU legislation):
Unofficial non-binding translation:
Prices Act (Prijzenwet) Act of March 24, 1961, laying down rules on the prices of goods and services. This law provides intervention powers for the minister of Finance in the form of price-capping during extreme economic circumstances. It is also the vehicle, under article 2b, for further regulation of price reduction announcements, which is drawn from new promotional pricing provisions from Directive 2019/2161. Explanatory note March 2022 from Maverick Avocaten/ Lexology here.
Media Act 2008 (Mediawet). Act No. 583 of 29th December 2008 established the Media Act, entry into force 01/01/2009. Act No. 552 of 10th December 2009 amended the Media Act to implement the Audiovisual Media Services (AVMS) Directive 2010/13/EU, and the Act of 30 September 2020 amended the Media Act according to Directive 2018/1808, which amended the AVMS Directive. The Act sets requirements for both public and commercial broadcasters, including rules for commercials, sponsorship, product placement and teleshopping, as well as online 'audiovisual media services', the implications of which are in debate. Chapter 3a (NL) brings video-sharing platforms into scope: article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider. The content rules from the Directive, i.e. those to do with protection of young people, health and safety, the environment etc., are transposed into the DAC, with which commercial and public broadcasters must be affiliated under the terms of articles 3.6 and 2.92 respectively. Programmes on public channels may accordingly carry advertising; product placement is prohibited but permitted for commercial channels subject to the conditions outlined in Arts 3.19a/b. Sponsorship is allowed in both, but subject to strict conditions for public broadcasting services. STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Netherlands Public Broadcasting's television, radio and online outlets (Art. 2.91(2)).
Media Decree (Mediaregeling) 2008 NL. December 18, 2008, a ministerial regulation implementing rules of the Media Act 2008. Chapter II, Title 2.2.2 Advertising and Teleshopping Messages, Articles 10 and 11. The Media Regulation 2008 contains implementing rules related to articles in the Media Act 2008.
The Dutch Media Authority: Commissariaat voor de Media (CvdM). This body upholds the rules formulated in the Media Act and Media Decree. The CvdM is an independent administrative body responsible for audiovisual content and distribution matters. It grants licences to broadcasters, registers VOD services, and systematically monitors compliance with the rules on quotas, advertising and protection of minors. The CvdM can also develop policy rules for public and commercial media, and publishes brochures in relation to those (see below): https://www.cvdm.nl/english/
The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here
Influencers/ 'video uploaders'
CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022, which require Influencers/ 'video uploaders' with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protection measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration by July 15, 2022. While the rules apply to Influencers, advertisers and agencies obviously need to be aware of them for contractual issues. Helpful commentary here from Osborne Clarke/ Lex May 2022.
CvdM re linked advertising
Public Media Broadcasting: ‘Aanhakende’ (Tie-in/ Linked) Advertising Brochure Dutch Media Authority Version 1.1 June 2011 NL. Tie-in / linked advertising is when there is a deliberate reference to a commercial entity close to editorial that covers the same subject. The brochure provides examples of such advertising, which violates the Media Act Article 2.89, which prohibits avoidable expressions (advertising/ teleshopping excluded) that clearly lead to the purchase of products or services being promoted.
Book 3 Dutch Civil Code, Articles 15d and 15e. The act of 13th May 2004 implemented the E-commerce Directive 2000/31/EC; Article 1C of Act of 13/05/2004 inserted Article 15d and 15e into Book 3 of the Civil Code, which relates to requirements from an Information Society Service provider (i.e. commercial websites, broadly) NL:
English version Book 3:
Telecommunications Act (Telecommunicatiewet). Article 11.7 implements Article 13 of the e-Privacy Directive 2002/58/EC on the sending of unsolicited commercial communications by email, fax, automated calling systems, for which opt-in consent is required, notwithstanding soft opt-in exception in Article 11.7 (2/3). Article 11.7a implements article 5.3 of the e-Privacy Directive, sometimes called the cookie clause, via Act 10th May 2012 NL and further amended by Act 4th Feb 2015 NL; the amends included an additional exception shown in Article 11.7a (3b) to the required prior informed consent rule for the placing of cookies and similar software, and a ban on the use of cookie walls by public agencies (Art. 11.7a (5) TA). The amendment in May 2018 took account of the arrival of the GDPR, recognised in this legislation, and there was a further amendment in July 2021 that prohibits unsolicited calls to consumers and abolishes the Do Not Call Register.
National GDPR implementation and authority
Implementation Act General Data Protection Regulation. (Uitvoeringswet Algemene Verordening gegevensbescherming 'UAVG'). Law of 16 May 2018, laying down rules for implementing Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC:
The Data Protection Authority (Autoriteit Persoonsgegevens - AP)
AP website (EN):
Guidance on advertising and direct marketing:
Stichting Reclame Code (SRC); The Advertising Code Foundation, the Netherlands Self-Regulatory Organisation. In addition to dealing with complaints, the SRC also helps advertisers to avoid any violation of the Dutch Advertising Code (DAC) e.g. via www.checksrc.nl, which helps the advertiser check whether their advertising message complies. The SRC site provides the DAC rules, judgements from the Advertising Code committee and the Board of Appeal since 2007, Check SRC, and under certain conditions, access to copy advice for draft advertising.
The Dutch Advertising Code (Nederlandse Reclame Code - NRC)
May 2022 clauses resulting from the transposition of Directive 2019/2161 in English here
Section B: Special Advertising Codes (EN). A selection of these is below. See the linked ‘Section B’ for the full complement
Section C: General Recommendations:
Social Media and Influencer Advertising Code 2022. This code requires that advertising via bloggers, vloggers and content creators must be clearly recognisable as such, and sets out examples by platform on how this should be achieved. The Code was amended in July 2022 in light of new rules from the media authority CvDM (see above). English translation from SRC is not available at the time of writing (July 2022); the translation below is unofficial and non-binding.
Full Dutch Advertising Code in English:
And in Dutch:
Social Code: YouTube. The Code was developed by a group of 20 YouTubers in collaboration with the Dutch Media Authority (Commissariaat voor de Media CvdM) following an investigation by CvdM, which concluded that 75% of popular vlogs on YouTube contained surreptitious advertising. The code was also discussed with other parties, including the Advertising Code Foundation (SRC - Stichting Reclame Code), Multi-Channel Networks (MCNs) and interest groups/ agencies. Social Code: YouTube NL / EN. CvdM commentary:
Data Driven Marketing Association (DDMA). The DDMA is the trade organisation for data driven marketing & advertising in the Netherlands. DDMA represents the interests of users, service providers and media/ carriers of data driven marketing, both in the Netherlands and at a European level. The DDMA has 300 member organisations. http://www.ddma.nl/
Full list of DDMA Codes can be found here:
DDMA codes are incorporated within the Dutch Advertising Code Section B
Telemarketing: Dutch regulator ACM and Stichting Infofilter run the don’t-call-me register, from 1/10/2009. Article 11.7 (6-12) of the Telecommunications Act contains provisions related to opt-out registers. The Telemarketing Code within the Dutch Advertising Code also refers to the opt-out register and places the onus on the advertiser to inform the consumer in every conversation of the existence of the Do-not-call-registry. Companies cannot register i.e. no ‘legal persons’ https://www.bel-me-niet.nl/. The ACM enforces legislation on telemarketing.
Direct Mail: Since 1st October 2009, Stichting Postfilter has been responsible for The National Post Register, which allows consumers to opt out of receiving unsolicited advertising mail. The Stichting Reclame Code oversees the enforcement of the rules. The Advertising Code for the Use of The Postal Filter also contains relevant provisions:
ICC Advertising and Marketing Communications Code 2018:
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.'
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising
ICC Guide for Responsible Mobile Marketing Communications
The ICC’s Guidance on Native Advertising Is in English here:
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising self-regulatory organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:
EASA’s Best Practice Recommendation on Online Behavioural Advertising is here:
And on Digital Marketing Communications here:
And on Influencer Marketing here:
IAB NL/ Europe
From the national website (GT): ‘IAB is the trade association for digital advertising and marketing innovation. IAB accelerates digital growth and makes a structural contribution to the qualitative development of the market.’
How to Comply with EU Rules Applicable to Online Native Advertising December 2016:
IAB Transparency and Consent Framework:
From the website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':
This is the ‘GDPR Guide for Marketers’:
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
The European Sponsorship Association can be found at:
Federation of European Direct and Interactive Marketing. FEDMA is the principal source of knowledge of the DM channel across Europe: