EmpCo has come into force: do you now have to destroy old stock bearing prohibited sustainability claims?

Since 27 September 2026, the new rules set out in the Empowering Consumers Directive (EmpCo for short) have applied to environmental and sustainability claims. In my previous article, I discussed which practices will be prohibited throughout the European Union from that date.

Many businesses have updated their online shops, marketing materials and new production lines in good time. But what happens to the old stock you already had before 27 September 2026, which does not comply with the new rules? Are you obliged to destroy it entirely? The Consumer Protection Cooperation Network (CPC), in which the ACM also participates, has published a joint position on this matter. I will outline the key points for you.

The problem: stock produced before the deadline

Many products and packaging items were produced or placed on the shelves months or years before 27 September 2026, bearing environmental claims or sustainability labels that were permitted under the old rules but are no longer acceptable under the EmpCo Directive. Strictly speaking, from the date of entry into force, these products will no longer comply with the applicable regulations, with all the associated risks, such as a fine from the ACM.

The CPC network recognises that this may lead to real and specific transitional problems during the initial phase of the EmpCo’s implementation, and has therefore drawn up a common understanding for dealing with these so-called ‘old stock situations’.

It is important to emphasise that the CPC Network is not adopting a formal position on this matter, nor is it providing a legally binding interpretation of the Directive. This is a practical guide that national regulators may take into account in their enforcement policies.

Please note: this leniency applies only to the additional, stricter requirements introduced by the EmpCo. The EmpCo does not stand alone, but supplements the existing rules on unfair and misleading commercial practices with a number of specific, stricter obligations. If packaging or a claim already failed to comply with the existing regulations on unfair and misleading commercial practices, you cannot count on the same leniency: regulators are expected to take a less lenient approach in such cases.

You can read more about these regulations in my previously published articles: Misleading advertising: a practical guide for businesses and Comparative advertising: what is and isn’t allowed.

Destruction is not the preferred option

The key point for businesses with old stock: regulators are advised not to demand destruction or recall as a matter of course, as this may cause unnecessary costs or environmental damage. After all, throwing away usable products because of an incorrect label runs counter to the very spirit of the sustainability rules themselves.

The guiding principles regarding old stock

The CPC network applies a number of guiding principles that are relevant if you still have old stock that does not comply with the EmpCo:

1. Compliance remains the norm: Old stock does not exempt you from the obligation to work towards full compliance as quickly as possible and in good faith.
2. Regulators may enforce the rules in phases: In the event of genuine and specific transitional difficulties, regulators may prioritise enforcement in relation to online claims and claims in marketing materials, practices that are most harmful to consumers, and products with a short shelf life or rapid stock turnover. Physical packaging of long-life products is given greater leeway in this regard.
3. Practical obstacles are taken into account: These include packaging cycles, stock levels, ongoing production or purchase orders, supply chain dependencies and the product’s shelf life.
4. You must, however, take demonstrable action: You are expected to make reasonable and proportionate efforts, for example by immediately amending online claims, updating advertising material, placing stickers over incorrect claims, displaying corrective information at the point of sale, coordinating with suppliers, and, above all, documenting everything properly.
5. Compliance before sanctions: Regulators are advised, in justified transitional situations, to prioritise providing guidance, issuing guidelines, making requests for information and requesting corrections within a reasonable timeframe, rather than imposing sanctions straight away.

Not a free pass, but scope for a tailored approach

This more flexible approach is not a carte blanche. The ACM and other regulators retain their power to act on a case-by-case basis, and the above principles do not affect other European or national law. So ensure that you comply with the EmpCo as much as possible and document the measures you have taken to that end.

Questions

Do you have any questions regarding this article, or are you unsure whether your existing stock still complies with the rules? Our solicitors are on hand to advise you! Please contact one of our solicitors by email, telephone or by filling in the contact form for a no-obligation initial consultation. We’d be happy to help you find a solution.