Empirical evidence in consumer law cases: what are 'up to' claims up to?

In this contribution I argue that in certain consumer law cases providing empirical evidence is necessary and that specific standards of proof should then apply. Only through analysing evidence of actual consumer behaviour as well as of trader’s commercial practices courts and enforcement authorities may guarantee strong consumer protection. However, due to the lack of standardisation and a rather blithe judicial and regulatory approach in testing the submitted empirical evidence, currently, there is a significant uncertainty as to what courts would and should recognize as sufficient and reliable empirical evidence. I illustrate this thesis through the analysis of a specific type of unfair commercial practices, namely, so-called "up to" claims, and their perusal in the Dutch legal practice. The examined case law clearly demonstrates the need for the introduction of a specific standard of proof for substantiating advertising claims, specifically "up to" claims. Moreover, it indicates that more attention should be paid to consumers’ actual beliefs not only in legal scholarship but also in legal practice. This could, of course, occur on the national level, but in order to further harmonize and strengthen consumer protection in Europe, the European institutions would be best positioned to change this enforcement policy.