Dutch consumer protection authority publishes guidelines on price indications and comparisons

The Netherlands Authority for Consumers and Markets (Autoriteit Consument & Markt; ACM) has recently published guidelines on price indications and comparisons, which are available in Dutch and English.

The guidelines provide actionable steps and examples for businesses to apply the price indication and comparison rules outlined in the Dutch decree on the price indication of products (Besluit prijsaanduiding producten). While the decree's comprehensive explanatory memorandum had already articulated the legal interpretation, the new guidelines consolidate this information into a practical framework for everyday pricing and promotions.

Dos and don'ts

The ACM's practical rules that businesses must follow can be translated into the following dos and don’ts:

Crossed-out prices

Do: Use crossed-out prices if they represent your own lowest price in the 30 days prior to the discount.

Don’t: Use crossed-out prices that were not your lowest during that 30-day period.

Reference price for discounts

Do: Base discounts on your own lowest price.

Don't: Use fake discounts. If the reference price is not your lowest price from the past 30 days, you cannot present it as discount using phrases like "30% off", "was €100" or similar claims.

Pricing history

Do: Use genuine pricing history.

Don’t: Artificially inflate the “previous” price. It is prohibited to raise prices just before a reduction to make the deal appear more significant. If you use a recommended retail price (RRP), you must: explain what RRP means; and demonstrate that the RRP is not only recommended by the manufacturer but is actually also used by other retailers.

Clear and prominent information

Do: Provide clear and prominent information. The relevant reference price must be listed in a clear and prominent manner using permanent text that is always displayed immediately next to the current price. For instance, if you use the RRP, you must clearly explain its meaning.

Don’t: Hide explanations behind icons or pop-ups.

Time period

Do: Keep discounts temporary and realistic (with a maximum of three months).

Don’t: Use excessively long price reductions. The ACM considers discounts lasting longer than three months excessive.

Misleading practices

The overarching prohibition on misleading practices remains in force, meaning price reductions and comparisons must not distort the average consumer’s decision making. For additional practical examples, refer to the guidelines.

Exceptions and specific situations

In some cases, there are exceptions to the price reduction rules mentioned above. Exceptions include:

• Perishable goods: For perishable products, such as vegetables, fruit, and meat products, businesses may use the price they charged right before the reduction.
• Progressive discounts: Businesses can keep using the same "previous" price for up to three months if the price keeps dropping. The price drop must be uninterrupted. In case of consecutive discounts or sale campaigns within a period of thirty days (for example, the sequence of Black Friday, Sinterklaas and Christmas), where the price is briefly increased in between, the general rule applies. The "previous" price for each new reduction is then the lowest price during the preceding 30 days (that is, the reduced price from the earlier promotion).
• New products: If a product is on the market for less than 30 days, businesses can use a reasonable reference period, but must state it clearly.
• Products that have been on the market before: A product is not considered "new" if it has already been offered as a new product and the business wishes to re-introduce it as such. This is only allowed if the period of interruption is very short, for example, due to it being out of stock.

Specific situations include:

• Prices and promotional deals on different sales channels. Businesses are allowed to charge different prices and run different promotional deals on different sales channels (such as a physical store, an online store, or an app). The same product can have different prices for each channel.
• General promotional deals. The rules also apply to general promotional deals, such as "20% off on everything".
• Platforms or platform sellers. The guidelines apply to all product sales, including those on platforms. If a platform acts as a seller, it is subject to these rules. If a platform allows third-party sellers, it must ensure it correctly indicates prices by: adding references on the platform to rules and regulations regarding price indications; and designing the platform in a way that allows for compliance with the rules and regulations.

Osborne Clarke comment

The guidelines do not introduce new legal obligations; they restate and operationalise existing rules under the decree, as reflected in the explanatory memorandum.

The publication of the guidelines, together with ACM fines for fake discounts, signals that price indications and comparisons remain a priority area for enforcement. Businesses should therefore take these guidelines as a clear call to action to review and adjust their product pricing strategies.