Advertising law

Creating advertising is one thing; ensuring that your advertisements comply with the law is another. Advertising law draws the line between persuasion and deception. This area of law helps ensure that advertising is fair, transparent and legally permitted. 

It comprises rules from advertising legislation, European directives and self-regulation through the Dutch Advertising Code Committee. These rules are intended to ensure that consumers are not misled and that competitors compete fairly with one another.

In practice, issues arise regularly. Legal risks can quickly arise, particularly when formulating claims, comparing products or services with those of competitors and making sustainability claims.

1. Claims that go just a little too far

An attractive message is easy to create, but a claim must be accurate. Misleading advertising may arise, for example, from:

• incorrect information;
• incomplete information; and
• small print that creates a different overall impression. 

Under the rules on misleading advertising, you must not provide information that misleads consumers. If you do, you risk complaints, damages claims and potentially legal proceedings.

2. Complaints to the Dutch Advertising Code Committee

Not only competitors but also consumers can submit a complaint about an advertisement to the Dutch Advertising Code Committee. An adverse ruling can:

• cause reputational damage; and
• lead to the amendment or withdrawal of your campaign.

3. Comparing yourself with competitors: what is and is not permitted?

Comparative advertising can be effective, but the scope is limited. Comparative advertising is permitted only if you:

• make an objective comparison;
• use verifiable information; and
• do not unnecessarily discredit or denigrate your competitor.

4. Sustainability claims under scrutiny

Claims such as “sustainable”, “green” or “climate neutral” may be attractive, but they involve significant legal risks. Sustainability claims that are insufficiently substantiated are increasingly characterised as greenwashing. 

Regulators and the Dutch Advertising Code Committee scrutinise such claims closely. What may have been acceptable in the past may no longer be acceptable today.

5. Use of other parties' trade marks and names

Do you mention a competitor in your advertising? Or use a trade mark? If so, you are operating at the intersection of intellectual property law and advertising law. Incorrect wording may lead to:

• trade mark infringement;
• unfair competition; and
• legal proceedings.

Advertising is about persuasion and speed. Campaigns go live, are amended and scaled up, often under time pressure. In that dynamic environment, it is important to know where the legal boundaries lie without unnecessarily restricting your creativity. 

An advertising lawyer therefore considers not only the rules, but above all solutions that work in the practical world of marketing and communications. 

You can, for example, obtain assistance if:

• You want to have a campaign reviewed before it goes live
• You are challenged over an advertisement or receive a complaint from the Dutch Advertising Code Committee
• You believe a competitor is engaging in misleading advertising or comparing its products or services with yours in an inaccurate manner
• You want to use comparative advertising while limiting legal risks
• You need to act quickly in relation to an ongoing campaign 

No standard advice, but a swift and practical assessment that enables you to move forward immediately, tailored to your message, target audience and commercial objectives. 

Would you like to discuss a campaign or are you dealing with a specific issue? Feel free to contact us. We will think along with you and help you make well-considered decisions.