A professor and law students from a Dutch University filed a plastic recycling complaint with the Advertising Code Committee against a manufacturer of a cleaning product ("the cleaner"). The case revolved specifically around sustainability claims the manufacturer had made about the packaging of the cleaner.
Self-regulatory system
The Netherlands has a self-regulatory system for advertising that includes labelling, administered by the Stichting Reclame Code (Advertising Code Foundation) (SRC). The SRC's Advertising Code Committee (ACC) and Board of Appeal (BoA) are responsible for enforcing this system.
The Dutch rules for advertising are contained in the Dutch Advertising Code (DAC), which is divided into a General Section and a Section of Special Advertising Codes. The General Section establishes rules that all advertising must comply with, while the Special Codes address specific types of advertising, such as the Code for Sustainability Advertising (CDR).
Anyone who believes that an advertisement violates the DAC may file a complaint with the ACC. If the ACC determines that there has been a violation of the DAC, it will sustain the complaint and recommend that the advertiser discontinues the advertising in question. Appeal of the decision of the ACC can be made at the BoA.
The ACC/BoA cannot grant damages or impose any fines. However, over 95% of all ACC/BoA recommendations are respected due to the policy of "naming and shaming" – publishing the names of advertisers unwilling to comply and cooperate on the SRC website.
Complaint concerning ‘Bottle and cap are recyclable'/'Bottle and cap are 100% recyclable’
The complainant objected to the claims ‘Bottle and cap are recyclable’/Bottle and cap are 100% recyclable' (in Dutch: "Fles en Dop zijn recyclebaar"/"Fles en Dop zijn 100% recyclebaar") because, according to the complainant, only 26% of plastic waste from Dutch consumers is actually recycled. This means that most bottles are not recycled.
In ruling on this complaint, the ACC refers to Article 9 CDR which states:
" Environmental claims relating to the re-use (recycling) of products, or parts thereof, are only permitted if this re-use is sufficiently achieved in the advertised products or parts. If not, this limitation must be apparent directly from the ad and the detailed description of the extent to which waste collection, waste processing and/or recycling is available can be included in the ad itself or via a reference (e.g. a clear link to a website) in the output."
Since it is not disputed that recycling of the bottle and cap of the cleaner is not yet sufficiently realised at this time, the ACC ruled that the advertisement is misleading because it is contrary to article 9 CDR.
During the proceedings, the manufacturer informed the ACC and the complainant that the claim ‘Bottle and Cap are 100% recyclable’ will no longer be used and that the claim ‘Bottle and Cap are recyclable’ will be provided with the statement ‘Actual recycling depends on the waste collection system as well as the recycling system’.
Complaint concerning 'Bottle made of 100% recycled plastic'
The complainant objected also to the claim on the bottles: ‘Bottle made of 100% recycled plastic’ (in Dutch: "Fles van 100% gerecycled plastic").
In assessing this complaint, the ACC refers to Article 4 CDR which states:
All sustainability claims must be demonstrably correct. The burden of proof rests on the advertiser. The more absolute the formulation of sustainability claims, the more stringent are the requirements for evidence.
The ACC also finds this claim misleading. The ACC ruled that the evidence presented by the manufacturer is insufficient to conclude that the bottles are indeed composed of 100% recycled plastic.
Appeal
The manufacturer filed an appeal with the BoA concerning the judgment of the ACC on the claim ''Bottle made of 100% recycled plastic'. Early 2024, the BOA confirmed the decision of the ACC.
The BoA also ruled that the evidence submitted by the manufacturer was insufficient to prove that the bottles were indeed made of 100% recycled plastic.
Furthermore, the BoA ruled that if it were to be assumed that only recycled plastic was used for the bottles in question, this does not mean that the bottles as such also consists of 100% recycled plastic. The processing of the plastic material for the bottles requires additives, which remain part of the material. The mere addition of even a very small amount of additives means that it cannot be said that the bottles as such consists of 100% recycled plastic. This implies that the expressions do not comply with Article 4 CDR due to their absolute nature.
