Pending Dutch Ad Ban Needs Clarification, Says Advisory Body

January 10, 2023
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The Dutch government’s regulatory advisory body has warned that a raft of proposed advertising restrictions “have not been sufficiently elaborated”.

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The Dutch government’s regulatory advisory body has warned that a raft of proposed advertising restrictions “have not been sufficiently elaborated”.

The Advisory Division of the Council of State said the lack of clarity would have “consequences for the enforceability and feasibility of the prohibition”, in its summary opinion of the draft law published on January 2, 2023.

For instance, the Advisory Division said it is not clear what is meant by “demonstrable measures” to prevent internet advertising from being seen by vulnerable groups.

“This makes it difficult for the regulator and providers of online games of chance to determine what the government expects of them. Insofar as the government encourages the use of algorithms, it does not explain how this relates to privacy law, in particular the General Data Protection Regulation,” the division said.

The government was also criticised for not working out how to prevent the ban from being circumvented.

The Advisory Division “recommends supplementing the explanatory notes to the draft decree and amending the draft decree if necessary”.

Despite saying that it understands the government’s aim to protect vulnerable groups and prevent gambling addiction, the review body claims the government has not undertaken an impact assessment of its proposals.

The Advisory Division suggests the government address this in the explanatory notes for the draft decree, as well as provide an explanation as to why the ban is still necessary at this time.

It also “advises explaining how the draft decision relates to the advertising policy for other potentially addictive activities, such as smoking and alcohol consumption”.

Another point of concern in the opinion is the proposed two-year delay for a ban on sports sponsorships, as opposed to a one-year delay for other sponsorships.

It is noted that the draft decree leaves open the possibility of new sponsorship deals being signed during the transitional period, which the Advisory Division said should either be explained or excluded in the next draft of the law.

A timeline for when the opinion could be addressed is not clear at the moment.

A several-month delay to the proposed ad restrictions was already announced in October 2022, as they waited for approval from various stages of the Dutch parliament, as well as the Council of State’s opinion.

Originally, the proposed changes were expected to come into force on January 1, 2023.

The Council of State has two primary tasks, carried out by two separate divisions, according to its own website.

The Advisory Division advises the government and parliament on legislation and governance, while the Administrative Jurisdiction Division is the country’s highest general administrative court.

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