Dealing with Advertising Complaints at the RCC – a guide for impact driven companies
As the Stichting Reclame Code marks its 60th anniversary, this article provides insights for (impact-driven) companies and activist organizations on handling misleading advertisements under the Dutch Advertising Code. Whether defending your practices, challenging competitors, or combating greenwashing, get a grasp of the complaint procedure and understand the steps involved in addressing advertising claims for compliance and transparency.
By Rik Nierop
Expertise: IP & Advertising
15.08.2024
The Stichting Reclame Code (SRC) recently marked its 60th anniversary. Many are familiar with the Reclame Code Commissie (RCC), a key component of the SRC. This self-regulation model was set up by businesses, advertisers, communication agencies, and media.
For both activists and competitors, the RCC is a powerful tool to challenge misleading advertisements, whether they appear on TV, online, or in public spaces.
Deliberate misleading advertising by companies is rare, sometimes companies are just a tad too enthusiastic about the benefits of their product, while others are just not aware that there is a vast number of requirements imposed by law. Even impact-driven companies can sometimes inadvertently overstep.
Have you, as an impact-driven company, received a complaint and are unsure about the next steps? Or are you facing misleading claims of competitors and would you like to take action?
Or, as an activist organization, have you come across an advertisement that is clearly inappropriate and are curious about the complaint process?
This brief thought piece outlines key information about the complaint procedure at the RCC.
Applicable regulations
The RCC evaluates advertisements against its 'codes,' primarily the Dutch Advertising Code (NRC). Within the NRC, there are several specific sub-codes (‘Special Advertising Codes’), such as the Sustainability Advertising Code and the Social Media & Influencer Marketing Code. Many of these rules are derived from European regulations. A comprehensive list is found on the website of the RCC (NL & ENG).
The general advertising rules in the NRC are essentially a direct adoption of a European directive regarding Unfair Commercial Practices, also known as the UCP Directive – which has been transposed to national law in all EU member states.[1]
As such, EU-wide case law on the interpretation of the UCP Directive as well as the “UCP guidelines” presented by the European Commission in December 2021, are relevant for the assessment of advertising under the NRC. For the Netherlands, guidelines published by the Authority for Consumers & Markets (ACM) are also relevant, such as those on Sustainability Claims and Protection of Online Consumers. The Dutch Code for Sustainability Advertising (CDR) even explicitly states that it aligns with the ACM Guidelines and is not intended to deviate from the government policy principles outlined in the ACM on Sustainability Claims.
Complaint procedure
Both individuals as well as professional parties can file complaints about advertisements with the RCC. Generally, this is done via a form on the RCC website. For more detailed complaints, a separate submission is possible on prior approval from the RCC. In general, filing a complaint with the RCC is low-threshold and rather informal.
Once a complaint is accepted for review, the RCC forwards it to the advertiser, who is given an opportunity to respond in writing. Typically, this response period is two weeks, but extensions can be granted for valid reasons. Depending on the advertiser's response, the RCC may allow for another round of exchange of written arguments (reply and rejoinder). If the case is straightforward and there is little room for debate, the RCC chairperson may decide the case without an oral hearing. This results in a so called ‘chairperson's decision’.
However, most cases proceed to a hearing at the RCC in Buitenveldert (close to Amsterdam). At the hearing, the RCC is present with five commission members: an independent chairperson, who is typically a judge or another legal professional with judicial experience, and four other members. These members are representatives from different sectors: one from the Advertisers' column, one from the Creative column, one from the Channel column, and one from the Consumer & Society column. Together, they ensure a balanced and fair consideration of the complaint from multiple perspectives within the advertising industry.
Public decisions
A few weeks (usually four) after the hearing, a decision is made and will be sent to the parties. If no appeal is filed, the decision will be published on the Stichting Reclame Code website. The RCC's decision will explain why the complaint is (partially) upheld or rejected and whether the advertisements in question are misleading under the regulations. These decisions are publicly accessible and closely monitored by various media outlets.
There is also an appeals process for the RCC’s final decision. In such cases, another written round follows, and the Board of Appeal, rather than the RCC, reviews the case.
Increasing professionalism in complaints
Originally, the RCC complaint procedure was primarily aimed at giving individuals opportunity to complain. However, professional parties are increasingly using it. Competitors but also industry associations (e.g. lobby associations for dairy, meat or sugar) regularly file complaints in case ‘their’ product is attacked or displayed negatively in advertisements. Further, NGO’s and other associations and foundations representing specific interests often find their way to the RCC.
This B2B enforcement trend is positive as the regulations aim to prevent consumer deception. However, it also means that complaints are becoming more sophisticated and defenses more complex.
Media attention
RCC complaints often trigger media exposure. Some examples are:
How we can assist
It is advisable not to respond to a complaint without consulting a legal expert, even if you are confident about your advertisement. A complaint procedure can pose significant PR risks and may lead to a civil procedure. Therefore, it is crucial to seek legal assistance early when you receive a complaint.
Are you facing a complaint via the RCC? Have you identified a misleading advertisement from a competitor, or are you an activist organization aiming to combat deceptive practices by polluting companies? Contact us to explore your options!
For more information about green claims, make sure to have a look at our Green Claim Guide.
________________________
[1] The European legislation on unfair commercial practices, formally known as Directive 2005/29/EC (UCP Directive), has been implemented in Section 3A of Title 3 of Book 6 of the Dutch Civil Code (BW). During the update of the Dutch Advertising Code (NRC) in 2008, the main provisions of the UCP Directive related to advertisements were included in the NRC. This integration into the NRC, as well as into Book 6 BW through the Unfair Commercial Practices Act, ensures that the UCP Directive effectively applies to the NRC.
For both activists and competitors, the RCC is a powerful tool to challenge misleading advertisements, whether they appear on TV, online, or in public spaces.
Deliberate misleading advertising by companies is rare, sometimes companies are just a tad too enthusiastic about the benefits of their product, while others are just not aware that there is a vast number of requirements imposed by law. Even impact-driven companies can sometimes inadvertently overstep.
Have you, as an impact-driven company, received a complaint and are unsure about the next steps? Or are you facing misleading claims of competitors and would you like to take action?
Or, as an activist organization, have you come across an advertisement that is clearly inappropriate and are curious about the complaint process?
This brief thought piece outlines key information about the complaint procedure at the RCC.
Applicable regulations
The RCC evaluates advertisements against its 'codes,' primarily the Dutch Advertising Code (NRC). Within the NRC, there are several specific sub-codes (‘Special Advertising Codes’), such as the Sustainability Advertising Code and the Social Media & Influencer Marketing Code. Many of these rules are derived from European regulations. A comprehensive list is found on the website of the RCC (NL & ENG).
The general advertising rules in the NRC are essentially a direct adoption of a European directive regarding Unfair Commercial Practices, also known as the UCP Directive – which has been transposed to national law in all EU member states.[1]
As such, EU-wide case law on the interpretation of the UCP Directive as well as the “UCP guidelines” presented by the European Commission in December 2021, are relevant for the assessment of advertising under the NRC. For the Netherlands, guidelines published by the Authority for Consumers & Markets (ACM) are also relevant, such as those on Sustainability Claims and Protection of Online Consumers. The Dutch Code for Sustainability Advertising (CDR) even explicitly states that it aligns with the ACM Guidelines and is not intended to deviate from the government policy principles outlined in the ACM on Sustainability Claims.
Complaint procedure
Both individuals as well as professional parties can file complaints about advertisements with the RCC. Generally, this is done via a form on the RCC website. For more detailed complaints, a separate submission is possible on prior approval from the RCC. In general, filing a complaint with the RCC is low-threshold and rather informal.
Once a complaint is accepted for review, the RCC forwards it to the advertiser, who is given an opportunity to respond in writing. Typically, this response period is two weeks, but extensions can be granted for valid reasons. Depending on the advertiser's response, the RCC may allow for another round of exchange of written arguments (reply and rejoinder). If the case is straightforward and there is little room for debate, the RCC chairperson may decide the case without an oral hearing. This results in a so called ‘chairperson's decision’.
However, most cases proceed to a hearing at the RCC in Buitenveldert (close to Amsterdam). At the hearing, the RCC is present with five commission members: an independent chairperson, who is typically a judge or another legal professional with judicial experience, and four other members. These members are representatives from different sectors: one from the Advertisers' column, one from the Creative column, one from the Channel column, and one from the Consumer & Society column. Together, they ensure a balanced and fair consideration of the complaint from multiple perspectives within the advertising industry.
Public decisions
A few weeks (usually four) after the hearing, a decision is made and will be sent to the parties. If no appeal is filed, the decision will be published on the Stichting Reclame Code website. The RCC's decision will explain why the complaint is (partially) upheld or rejected and whether the advertisements in question are misleading under the regulations. These decisions are publicly accessible and closely monitored by various media outlets.
There is also an appeals process for the RCC’s final decision. In such cases, another written round follows, and the Board of Appeal, rather than the RCC, reviews the case.
Increasing professionalism in complaints
Originally, the RCC complaint procedure was primarily aimed at giving individuals opportunity to complain. However, professional parties are increasingly using it. Competitors but also industry associations (e.g. lobby associations for dairy, meat or sugar) regularly file complaints in case ‘their’ product is attacked or displayed negatively in advertisements. Further, NGO’s and other associations and foundations representing specific interests often find their way to the RCC.
This B2B enforcement trend is positive as the regulations aim to prevent consumer deception. However, it also means that complaints are becoming more sophisticated and defenses more complex.
Media attention
RCC complaints often trigger media exposure. Some examples are:
- B2B conflict about dairy names used for plant based products.
- Successful complaint by Dutch Foundation for the Responsible consumption of Alcohol against GIG Hard Seltzer commercial.
- Shell's advertising about 'millions of clean kilometers' found misleading, after complaint from Advertising Fossil Free.
- Influencers reprimanded following complaint at the RCC.
- Complaint against McDonald’s children-aimed marketing campaign, filed by Foodwatch.
- Shell’s ‘CO2-neutral driving’ campaign found misleading.
- Civil court case to follow multiple successful complaints by de Consumentenbond against several travel agencies.
- Also our successful complaints on behalf of Sara Dubbeldam against “Sustainability Claims” by Primark is a notable example of a high-profile case handled by the Dutch Advertising Code Committee that gained national media attention, and further led to a documentary on national Dutch television (VPRO Tegenlicht).
How we can assist
It is advisable not to respond to a complaint without consulting a legal expert, even if you are confident about your advertisement. A complaint procedure can pose significant PR risks and may lead to a civil procedure. Therefore, it is crucial to seek legal assistance early when you receive a complaint.
Are you facing a complaint via the RCC? Have you identified a misleading advertisement from a competitor, or are you an activist organization aiming to combat deceptive practices by polluting companies? Contact us to explore your options!
For more information about green claims, make sure to have a look at our Green Claim Guide.
________________________
[1] The European legislation on unfair commercial practices, formally known as Directive 2005/29/EC (UCP Directive), has been implemented in Section 3A of Title 3 of Book 6 of the Dutch Civil Code (BW). During the update of the Dutch Advertising Code (NRC) in 2008, the main provisions of the UCP Directive related to advertisements were included in the NRC. This integration into the NRC, as well as into Book 6 BW through the Unfair Commercial Practices Act, ensures that the UCP Directive effectively applies to the NRC.
