Misleading advertising: A practical guide for business owners

Every day, we are inundated with advertising messages. These often push the boundaries. A claim that promises just a little too much; an offer with hidden conditions. These practices fall under the concept of misleading advertising and can have far-reaching legal consequences.

For example, in 2025, the ACM imposed fines of €163,000 and €130,000 respectively on the Dutch online shops Koopjedeal and Leenbakker. Both online shops had misled consumers by using an artificially high ‘original’ price in their discount offers, meaning that the discount presented was in reality lower than suggested or did not exist at all.

In this article, you can read about what constitutes misleading advertising, the forms it can take, and the legal consequences for businesses found guilty of such practices.

What is misleading advertising?

Misleading advertising revolves around the concept of a misleading statement: an advertisement or promotion which, due to its content, presentation or the omission of information, may create a false impression in the consumer’s mind.

The concept of a statement is interpreted broadly. It encompasses both verbal and written communications, images and implicit suggestions.

The law lists a number of examples of areas where misleading information may arise:

• Nature or composition: what is actually in the product?
• Origin or manufacture: where and when was it made?
• Stock levels: is the offer genuinely limited?
• Price: is the stated price accurate and complete?
• Reason for the offer: is the reason for the promotion correct?
• Awards and quality marks: are the reviews mentioned genuine?
• Warranty: what are the actual warranty terms?

Forms of misleading advertising:

Misleading advertising can take various forms:

• False statements: The most direct form of misleading advertising is a factually incorrect claim. Consider, for example, the claim that a product has healing properties, without any scientific basis.
• Incomplete statements: Omitting essential information can also be misleading. For example, “Free delivery” without mentioning a minimum order amount. Important terms and conditions must be clearly stated; including them in the small print is usually not sufficient, as these are not easily found by the average consumer.
• Suggestive statements: Advertising can also be misleading due to the impression it creates. One example is paid advertorials that are not clearly marked as advertising: the commercial nature of a message must be apparent to the consumer.

Unlawful towards both competitors and consumers: what is the difference?

The same advertising message may be unlawful towards both a competitor and a consumer at the same time, but on the basis of different rules, with different requirements.

Protection of competitors

If an advertisement gives a false impression, a competitor may suffer harm as a result. For example, if a customer is misled and buys the product from the competitor instead of from you.

To prevent a competitor from gaining an unfair advantage in this way, Dutch legislation provides a protection scheme for competitors, based on the Misleading and Comparative Advertising Directive. For this to apply, the statement must have been made publicly in the course of a trade or business. Statements made in a personal capacity, without any commercial intent, fall outside the scope of these rules.

The central question in the assessment is always whether the average member of the public could be misled by the statement.

In addition to misleading advertising, the regulations also contain rules on comparative advertising. Read our article on this subject.

Consumer protection

Consumer protection is regulated by the Unfair Commercial Practices Act (Wet OHP). This framework is broader in several respects than the rules that apply to the protection of competitors:

• There is no requirement for publicity: even an individual sales conversation, a targeted email or a telephone sales call can constitute an unfair commercial practice.
• The consumer’s transactional decision is central: when assessing the matter, the question is always asked whether the average consumer makes or is led to make a decision that they would not otherwise have made.
• There is a blacklist: the Act contains a list of practices that are always prohibited, without the need to assess the circumstances on a case-by-case basis.

Please note: Under certain circumstances, competitors may also invoke the Unfair Commercial Practices Act when acting in the interests of consumers. Read our article on this subject.

What are the legal consequences?

The consequences of misleading advertising can be significant:

· Prohibition of the advertisement: the court may impose a ban on continuing or reusing the misleading advertisement, possibly reinforced by a penalty payment.

· Rectification: the court may oblige the misleading party to publish a correction, for example via the same channels through which the original advertisement was disseminated.

· Compensation: the aggrieved party may claim compensation for the damage suffered, such as lost turnover or costs incurred as a result of the misleading advertising. The causal link between the misleading advertisement and the damage must, however, be demonstrated.

· Annulment of the contract: if a consumer has entered into a contract as a result of misleading advertising, they may annul the contract.

· Enforcement by the ACM: the Netherlands Authority for Consumers and Markets (ACM) enforces consumer protection legislation and may impose fines for infringements of up to €900,000 per infringement or 10% of the relevant turnover.

· Complaints to the Advertising Code Committee: both consumers and competitors may lodge a complaint with the Advertising Code Committee (RCC). The RCC assesses advertising against the Dutch Advertising Code. If the RCC deems an advertisement to be unacceptable, it issues a recommendation for amendment or cessation. This ruling is not legally binding, but carries considerable weight in practice and can be used in civil proceedings as supporting evidence of misleading advertising.

Questions?

Do you suspect that a competitor is engaging in misleading advertising? Are you unsure whether your own advertising complies with the applicable rules? Or do you have other questions on this subject? Please contact one of our lawyers by email, phone or fill out the contact form for a no-obligation initial consultation. We are happy to think along with you.