Lennart Hoeksema

The Netherlands Authority for Consumers and Markets (ACM) has recently issued a clear call to companies in the food sector: review and improve your sustainability claims. This call is not optional. The ACM emphasizes that it will actively monitor compliance with the rules and, if necessary, take enforcement action. What does this mean for companies in the food sector? Why this call? Sustainability claims are playing an increasingly significant role in the marketing of food products. Consumers want to make informed choices and consider sustainability in their purchasing decisions. However, the ACM has observed that many claims in the food sector are unclear. This not only undermines consumer trust but can also lead to unfair competition among companies. For example, the ACM notes that it is often unclear what labels, logos, and certifications represent or what a sustainability claim specifically entails. The ACM has previously scrutinized sustainability claims in other sectors, such as clothing, energy, and transportation. Now, it is the food sector’s turn. The Sustainability Claims Guidelines: the basis for compliance The ACM directs companies to its updated Sustainability Claims Guidelines (2023). These guidelines outline five key rules that sustainability claims must adhere to: Use clear, specific, and complete sustainability claims; Substantiate sustainability claims with facts and keep them up to date; Make fair comparisons with other products or competitors; Describe future sustainability ambitions in concrete and measurable terms; Ensure that visual claims and certifications are helpful and not misleading. What’s at stake? The ACM has announced that it will actively check whether companies have adjusted their sustainability claims following this call. If claims do not comply, the ACM has stated that it may take enforcement action. Companies using sustainability claims that do not meet the Sustainability Claims Guidelines may face fines or orders subject to penalty payments. What can your company do? To avoid risks and ensure compliance with the law, it is essential for companies to take action now. A few practical tips: Inventory Your Sustainability Claims. Map out all the claims you use on products, in advertisements, and in stores; Assess Your Claims Against the Sustainability Claims Guidelines. Verify whether your claims comply with the ACM’s five key rules as outlined in the Sustainability Claims Guidelines; Collaborate with Experts. Have your claims reviewed both legally and substantively by specialists. This can help identify and mitigate risks; Communicate Transparently. Ensure that your claims are understandable to consumers and supported by clear information; Stay Up-to-Date. Closely monitor developments in laws and regulations regarding sustainability claims. Conclusion The ACM’s call is a clear warning to the food sector: ensure that your sustainability claims are honest, clear, and substantiated. If not, the ACM may proceed with enforcement. Do you need assistance in reviewing or adjusting your sustainability claims? We are happy to help you mitigate risks and bring your claims into compliance with the law. Feel free to contact Arnout Koeman or one of our other specialists.

On 14 March 2025, the Dutch Supreme Court (‘Hoge Raad’) issued an important ruling in the context of the Act on the Resolution of Mass Claims in Collective Actions (“WAMCA”) (ECLI:NL:HR:2025:388). One of the key questions the Supreme Court addressed was whether an extension of the so-called three-month period for serving a writ of summons, pursuant to Article 1018d(2) of the Dutch Code of Civil Procedure (“Rv”), has general effect or applies only to the legal entity that requested the extension. The Supreme Court’s decision is clear: an extension of the three-month period does not have general effect—it applies only to the legal entity that requested it. Background of the Case The case concerns collective claims brought by various foundations against Apple. Apple was summoned on October 4, 2021, by the Right to Consumer Justice Foundation (“Stichting RCJ”). Pursuant to Article 1018d(1) Rv, other foundations wishing to file a similar collective claim had three months to do so – until January 4, 2022, in this case. Article 1018d(2) Rv provides that a court may extend this three-month period upon request by another legal entity seeking to initiate collective proceedings. In this case, the court granted an extension of three additional months at the request of another foundation, the App Stores Claims Foundation (“Stichting ASC”), extending the deadline to April 4, 2022. This procedural decision was published in the central register for collective claims on November 29, 2021. Stichting ASC summoned Apple within this extended period. Another foundation, the Consumer Competition Claims Foundation (“Stichting CCC”), also summoned Apple within the extended period – on March 31, 2022. However, this meant that Stichting CCC had issued its writ of summons outside the original three-month period. The question in the proceedings was whether Stichting CCC could be deemed admissible in its collective claims, given that its summons was served after the initial three-month period had expired. At first instance, the court declared Stichting CCC inadmissible because it had not served its writ of summons within the statutory three-month period. The court ruled that an extension of the period under Article 1018d(2) Rv does not have general effect—the extension granted to Stichting ASC applied only to Stichting ASC. Stichting CCC disagreed and an appeal was files directly with the Supreme Court (‘sprongcassatie’). Supreme Court Decision The Supreme Court upheld the lower court’s ruling. It confirmed that an extension of the three-month period under Article 1018d(2) Rv does not have general effect. The Supreme Court noted that, according to the legislative history of the WAMCA, a court’s decision on an extension request must be tailored to the specific circumstances of the legal entity making the request. This, according to the Supreme Court, implies that an extension applies solely to the requesting legal entity and does not have a general effect. The Supreme Court also pointed out that this interpretation aligns with the absence of a requirement for extension decisions to be registered in the central register for collective claims. Conclusion For foundations seeking to initiate similar collective claims, it is crucial to closely monitor the collective claims published in the central register for collective claims. While it is understandable that Stichting CCC also considered the court’s procedural decision granting an extension to Stichting ASC, the publication of a summary of the initial summons in the central register remains decisive for determining the start of the three-month period. If an organization needs more than three months to prepare its case, it must submit a reasoned request for an extension of the three-month period to the court within one month. Organizations cannot rely on procedural decisions regarding extensions granted to other foundations that may be published in the central register for collective claims. Questions about the WAMCA? Please contact Lennart Hoeksema, Arnout Koeman or one of our other WAMCA specialists.

On 8 January 2025, the District Court of Midden-Nederland gave judgment in the ‘Essure case’ (ECLI:NL:RBMNE:2025:10). Drug manufacturer Bayer marketed a permanent sterilisation method for women called ‘Essure’, which had to be implanted on the fallopian tubes. The Essure Claims Foundation (‘Foundation’) brought a mass tort action against Bayer. The Foundation claimed that many women became seriously ill from this sterilisation implant. In its judgment, the court ruled on a number of formal points regarding, among other things, the applicability of the WAMCA and the admissibility of the Foundation in the proceedings. The court ruled in favour of the Foundation on all points. Below, we highlight some noteworthy points of the judgment. Temporal application of the WAMCA: no cut-off The WAMCA applies to collective actions that (i) are brought after the WAMCA came into force on 1 January 2020 and (ii) relate to events that took place on or after 15 November 2016. Bayer believes there should be a cut-off in the claims of the Foundation. Bayer argues that with regard to implants placed before 15 November 2016, the old statutory regime (WCAM) should be applied; only with regard to implants placed on or after 15 November 2016 should the WAMCA be applied. The court is of another opinion. The court considers that there is a series of events, as the women have in common that they all had the Essure implanted, but at a different point in time. According to the court, this series of events consists of the same, repetitive event that caused the alleged harm to several individual women who belong to the circle of persons whose interests the collective claim seeks to protect. This series of events did not end until after 15 November 2016. Therefore, the court concluded that the WAMCA applies to all of the Foundation’s claims. The claims for material and non-material damage can be bundled An foundation who can start a mass-litigation case under the WAMCA can only bring an action if it seeks to protect similar interests of the persons involved. This similarity requirement is met if these interests lend themselves to bundling. As a result, the special circumstances of the individual parties need not be considered in the proceedings. In addition to material damages, the Foundation also claims immaterial damages for the women who had Essure surgically removed. The Foundation divided the women into 17 categories and claimed a lump sum of damages for each category. Bayer takes the view that the claims cannot be bundled in this case, as according to Bayer, immaterial damages depend on individual facts and circumstances. In doing so, Bayer also relies on the Supreme Court’s ruling on earthquake damage in Groningen. In this judgment, the Supreme Court ruled that immaterial damage due to impairment of the person cannot be determined on a flat-rate basis, as this is not compatible with the highly personal nature of such damage. Again, the court is of another opinion. The court considers that, unlike in the aforementioned Supreme Court judgment, in the present case, immaterial damages are not claimed for personal impairment. In the present case, immaterial damages are claimed because the women suffered personal injury. As a result, according to the court, immaterial damages are even more logical than for an impairment in person. According to the court, it is not necessary that the women also suffered mental injury. The court concludes by considering that it is therefore possible that it may find that the immaterial damages suffered by the women are at least a certain (lump sum) amount. The court concludes that the Foundation’s claim for compensation for both material and immaterial damages are bundleable. Thus, the Foundation is admissible in all its claims, including those relating to the immaterial damages. Litigation funder’s fee of 28.75% is not unreasonable In the context of the admissibility of the Foundation, it must be assessed whether or not the litigation funder’s fee is prima facie unreasonable. The amount of the litigation funder’s fee should not be such as to disadvantage the women or provide an unacceptable incentive for the litigation funder to push for an adverse outcome for the women. It has been agreed with the litigation funder that it will receive 25% of the potential damages. In addition, it has been agreed that the litigation funder may charge all its incurred costs up to a maximum of 5% on the potential damages. This therefore means that a minimum of (95% minus 25% =) 71.25% of the damages will accrue to the women; the litigation funder can therefore potentially receive 28.75% of the damages. Dutch case law states that a range of 10 to 25% can be considered the maximum fee for a litigation funder. The court finds that the Foundation has sufficiently substantiated why a fee of more than 25% is reasonable. The Foundation has substantiated that it intends to recover the costs of the proceedings from Bayer by means of an actual litigation cost order or an equal agreement in a settlement. The Foundation has further argued that it is still uncertain what costs will be eligible for reimbursement through a (litigation) order or settlement. The amount of costs to be incurred is also still uncertain. In view of this, the court concludes that the Foundation has sufficiently substantiated that the agreed fee is not unreasonably high. Therefore, this does not pose an issue for the admissibility of the Foundation. Conclusion The Foundation’s victory shows that both the applicability of the WAMCA and the admissibility of foundations that are litigating under the WAMCA can be applied practically. Questions about the WAMCA? Please contact Lennart Hoeksema, Arnout Koeman or one of our other WAMCA specialists.