Greenwashing as an unfair commercial practice: the test framework
In the Netherlands, greenwashing is assessed through the doctrine of the unfair commercial practice in Book 6 of the Dutch Civil Code. From 27 September 2026 that framework changes substantially. Directive (EU) 2024/825, the EmpCo Directive, adds twelve practices to the blacklist. A series of sustainability claims is thereby prohibited without any further assessment. There is no transitional period.
The short answer
A sustainability claim is assessed along three tracks. First the blacklist: if the claim appears on it, it is always prohibited. If not, the claim is tested against the misleading action or the misleading omission. If neither applies, the open standard of professional diligence remains.
What is new is that after 27 September 2026 the blacklist will dispose of many greenwashing cases in a single step. The debate about the average consumer will then no longer arise. This article addresses the legal and technical framework. For the general overview we refer you to our main article on greenwashing and environmental claims.
The statutory structure in Book 6 of the Civil Code
The regime is set out in articles 6:193a to 6:193j of the Dutch Civil Code. It is built up in stages:
- Article 6:193b contains the open standard. A commercial practice is unfair if it is contrary to professional diligence. It must in addition materially distort, or be liable to distort, the economic behaviour of the average consumer.
- Article 6:193c governs the misleading action: false information, or information that misleads or is liable to mislead the consumer.
- Article 6:193d governs the misleading omission: omitting or hiding material information.
- Article 6:193g contains the blacklist of misleading practices that are prohibited in all circumstances. Article 6:193i does the same for aggressive practices.
The Dutch implementation of the EmpCo Directive is laid down in the Act of 27 May 2026 (Stb. 2026, 152), following adoption by the House of Representatives on 23 April 2026 and by the Senate on 26 May 2026.
What the EmpCo Directive changes
The amendments affect three places in the Act.
Article 6:193a gains new definitions. These include environmental claim, generic environmental claim, sustainability label, certification scheme, recognised excellent environmental performance and sustainability. A generic environmental claim is an environmental claim without specification that is displayed clearly and prominently on the same medium.
Article 6:193c is extended. Environmental characteristics, social characteristics and circularity aspects are named expressly. Further grounds of misleading are added for statements about future environmental performance and for emphasising benefits that are not relevant to the consumer.
Article 6:193g gains twelve new items. Five of them concern sustainability communication; the remainder concern early obsolescence and repair.
The new prohibitions in brief
- Making a generic environmental claim without demonstrable recognised excellent environmental performance relevant to that claim. Terms such as green, eco, environmentally friendly and climate friendly fall within this.
- Displaying a sustainability label that is not based on a certification scheme and was not established by a public authority.
- Claiming an environmental benefit for the product as a whole where the benefit concerns only one aspect or one component.
- Asserting that a product has a neutral, reduced or positive effect on the environment on the basis of offsetting greenhouse gas emissions.
- Presenting a legally required feature as a distinguishing characteristic of the offer.
In addition, future environmental targets may not be presented as results already achieved. That follows from the tightened standard for misleading actions.
The average consumer
The open standard and the misleading test work with the benchmark of the average consumer: reasonably well informed, circumspect and observant. The concept is European and is set normatively, not established empirically. Market research helps, but is not decisive.
Where the statement is directed at a specific group, the average member of that group applies. Where the group is particularly vulnerable, that is the starting point. With sustainability claims it counts that the consumer has no access to life cycle data. A claim that an expert can still place in context may therefore mislead the average consumer.
Misleading action or misleading omission
The distinction determines how the case is proved.
| Misleading action (6:193c) | Misleading omission (6:193d) | |
|---|---|---|
| Core | What you say is untrue or creates a false impression | What you do not say, although it is material |
| Typical case | “Climate neutral” for a product with substantial emissions | Concealing that a label is the trader’s own scheme |
| Role of context | Overall impression of the statement, including imagery and colour | Limitations of the medium are taken into account |
In both cases the transactional decision requirement applies. The practice must cause, or be liable to cause, the consumer to take a decision on a contract that he would not otherwise have taken. That requirement does not apply to the blacklist.
Blacklist versus open standard
The blacklist is exhaustive and applies per se. If a practice appears on it, no assessment of professional diligence, the average consumer or the transactional decision is needed. That shortens proceedings and weakens your position.
The open standard continues to exist alongside it. It catches cases the list does not name: selective comparisons, an inflated marginal improvement, or the use of imagery that creates a false impression without any text. The list is a floor, not a safe harbour.
Burden of proof
Article 6:193j(1) of the Dutch Civil Code places the burden of proving the material accuracy and completeness of the information provided on the trader. You must therefore be able to substantiate your claim at the moment you make it, not only once it is challenged.
Paragraph 2 provides that an unfair commercial practice is unlawful and is in principle attributed to the trader. Paragraph 3 renders the contract voidable. Build a file for each claim: calculations, measurement methods, sources and reference dates.
Enforcement by the ACM
The Netherlands Authority for Consumers and Markets (ACM) is the designated supervisor. It enforces under the Consumer Protection (Enforcement) Act (Wet handhaving consumentenbescherming). Its toolkit includes:
- an administrative fine of up to EUR 900,000 per breach or, if that is higher, up to ten per cent of annual turnover;
- doubling of those maxima on repetition within the statutory period;
- an order subject to a penalty payment requiring the statement to be withdrawn or corrected;
- a commitment decision, by which the undertaking binds itself to changes;
- publication of the decision, with the reputational effect that goes with it.
The ACM often takes the commitment route first. In September 2022 it accepted commitments from Decathlon and H&M concerning vague claims such as Ecodesign and Conscious. Both undertook to contribute to sustainability causes, of EUR 400,000 and EUR 500,000 respectively.
The ACM also applies Guidelines on Sustainability Claims containing five rules of thumb, issued in 2021 and revised in 2023. On 1 July 2026 it published an explanatory note on existing stock. Where old stock and genuine efforts to comply quickly can be demonstrated, it may take transitional situations into account. That is policy, not a statutory transitional period.
The civil route
The civil courts are open as well. A consumer relies on article 6:193j of the Dutch Civil Code. A competitor can act under article 6:194 of the Dutch Civil Code on misleading advertising between undertakings, or in tort.
Interest groups use the collective action under article 3:305a of the Dutch Civil Code. The judgment of the Amsterdam District Court of 20 March 2024 in Fossielvrij v KLM (ECLI:NL:RBAMS:2024:1512) is the best-known example. Vague and general statements about environmental benefits painted too rosy a picture, while sustainable fuel and replanting reduce the adverse effects only to a limited extent.
The Advertising Code Committee
Self-regulation is the third track. Since 1 February 2023 the Dutch Advertising Code Foundation has applied the Sustainability Advertising Code. That code replaced the Environmental Advertising Code and also covers ethical claims, such as animal welfare and working conditions.
The Advertising Code Committee cannot impose a fine. It issues a recommendation and publishes it. The threshold is low and the lead time short. A recommendation also carries weight in later proceedings.
What this means for your file
Take stock of every statement containing an environmental or social claim: packaging, labels, webshop copy, advertisements and sustainability pages. Test each claim first against the blacklist and then against the misleading standards. Record for each claim what evidence you hold and how old it is.
Mind the interaction with your reporting. What you report under the CSRD must be consistent with what you tell the consumer. A contradiction between your ESG reporting and your marketing is hard to explain in proceedings.
Finally, the separate proposal for a Green Claims Directive has been withdrawn by the European Commission. A regime for prior verification of claims is therefore not coming for the time being. The centre of gravity lies with the EmpCo rules.
Frequently asked questions
Is there a transitional period for existing packaging?
No. The rules apply from 27 September 2026. The ACM has explained that, where old stock and genuine efforts can be demonstrated, it may take transitional situations into account. That is enforcement policy and not a right on which you can rely.
May I still mention carbon offsetting in my communications?
You may state as a matter of fact that you offset and through which project. What is prohibited is the next step: asserting that the product is therefore climate neutral, carbon neutral or environmentally positive. Offsetting may not carry the claim about the product.
Who has to prove that a claim is correct?
The trader. Article 6:193j(1) of the Dutch Civil Code places the burden of proving material accuracy and completeness on you. Make sure the substantiation is in place before the statement goes out.
Are you in doubt whether your claims will survive the new framework? Our specialists review your statements and draw up the substantiation file with you. Law & More has offices in Eindhoven and Amsterdam and advises in Dutch and English. Please feel free to contact an environmental law attorney at Law & More.
