French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

The regulation of corporate advertising, sponsorship and patronage in the alcoholic beverage sector is set out in Articles L. 3323-2 to L. 3323-6. Article L. 3351-7 provides that infringements of those provisions are subject to a fine of EUR 75,000, which can be increased to 50% of the amount of expenditure devoted to the illegal operation. 
Since 1 January 1993, when the Loi Évin of 10 January 19 …

Alcohol or product reminiscent of alcoholic beverage

The regulation of corporate advertising, sponsorship and patronage in the alcoholic beverage sector is set out in Articles L. 3323-2 to L. 3323-6. Article L. 3351-7 provides that infringements of those provisions are subject to a fine of EUR 75,000, which can be increased to 50% of the amount of expenditure devoted to the illegal operation. 

Since 1 January 1993, when the Loi Évin of 10 January 1991 came into force, any operation of sponsorship is prohibited when it has as its object or effect the propagation or indirect advertising of alcoholic beverages (Article L. 3323-2, para. 1, Public Health Code). A sponsorship organized at the initiative of an alcohol producer is therefore prohibited if its purpose is promotional . Unlawful sponsorship of alcoholic beverages implies a consideration to the publicity action, be it material or financial . When sanctioning unlawful sponsorship, the courts base their rulings on the provisions regulating the alcohol advertising .

This principle is subject to a legal exception intended to preserve rights acquired on brands pre-existing the Évin Law and with the same name as an alcoholic beverage. The indirect advertising ban does not, pursuant to the second paragraph of Article L. 3323-3, apply to products put on the market before 1 January 1990, where they are marketed by a company which is legally or financially separate from any company which manufactures, imports or sells alcoholic beverages. On that basis, the owner of a trade mark sued a wine producer who had registered a trade mark for alcoholic beverages using the same name as its own trade mark, and sought annulment of the second trade mark in application of Article L. 713-5 of the Intellectual Property Code and damages for the loss incurred arising from the coexistence of the two trade marks, prohibiting the claimant, by application of Article L. 3323-3, from continuing to carry out sponsorship advertising on the grounds that it would constitute indirect advertising of alcoholic beverages. The courts ruled that the legal exception also applied for sponsorship operations (not just indirect advertising) and thereby authorized the claimant to carry out sponsorship operations for sports events without contravening the legislation on alcohol advertising as it had registered its trade mark in 1985 and was legally and financially separate from the wine producer . 

Article 9(1)(e) of Directive No 2010/13 of 10 March 2010 provides that “audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages”. The Évin Law however goes much further, and has resulted in the prohibition of the TV retransmission in France of bi-national sporting events taking place in the territory of other Member States where alcohol advertisements are featured. Called upon to rule on the compatibility of the Évin Law with European Union, the Court of Justice has held that legislation that prevents the television retransmission in France of bi-national sporting events with visible alcohol advertisements constitutes a restriction on the freedom to provide services which is proportionate to the aim of protecting public health . The Court of Cassation has fully adopted that analysis . 

Due to the disparities in the national rules resulting from the relative permissiveness of the EU with regard to the advertising of alcoholic beverages, the televised broadcast of transnational sports competitions has raised considerable difficulties. A code of conduct ("code de bonne conduite") was adopted on 28 March 1995 by the French audiovisual authority (CSA)  in consultation with the Ministry of Health, French advertisers and TV channels which establishes a best-efforts duty requiring them to prevent, as far as is possible, the showing of alcohol advertisements on TV. The code, which is not legally binding, provides for different rules for sports events occurring in other countries depending on the target audience of the broadcast and the control of what is filmed. Multinational events (C1 Champion's League matches, i.e. first-round matches between winning teams of national championships - which are retransmitted in a large number of European countries) are not subject to the Public Health Code as they are not aimed specifically at the French public and French TV channels do not have control over what is shown. Broadcasters cannot therefore be accused of complacency in respect of any contentious advertisements shown. Conversely, bi-national meetings (C2 and C3, preliminary and qualifying rounds) that are of interest only to the public of the nationality of the teams involved, fall within the scope of the French legislation on alcohol advertising during the retransmission in France. In that case, all parties contracting with the holder of the TV broadcasting rights must ensure, by any available means, that commercial brands of alcoholic beverages do not appear on the screen. This solution is designed to prevent the circumvention of domestic regulation on alcohol advertising, which can sometimes be more prohibitive than that of other Member States, which would be possible through the retransmission from other countries of images intended exclusively for the French public. 

Patronage is subject to a different regime than sponsorship in the alcoholic beverages sector. Before 2003, producers of alcoholic products could organize patronage operations. The conditions governing the identification of a patron were fixed by a decree, which has now been annulled  . Although the legality of the principle of patronage for alcoholic beverages was not called into questioned , patronage operations became scarce in view of the legal vacuum created by the annulment of the decree, as the conditions for the identification of a patron remained undefined in the absence of a replacement. The legislature therefore intervened with Law No 2003-709 of 1 August 2003 on patronage, associations and foundations, in order to revive that activity. Now, under Article L. 3323-6 of the Public Health Code, “the initiator(s) of an operation of patronage may make known their participation exclusively in writing in documents distributed on the occasion of the operation or on labels of media used for commemorative purposes on the occasion of operations for the enrichment or restoration of cultural or natural heritage”. Law No 2003-709 has also removed the requirement for an implementing decree.

 CA Paris, 6 January 2006, ANPA v Bardoit and others: the offense of unlawful sponsorship is not established when a student body has funded a gala with the aid of a brand of alcohol, as the purpose of the event was not promotional; 3 December 2020, LawLex202000003684JBJ: sponsorship of an event is unlawful only because of its object or effect, regardless of the direct or indirect nature of the advertisement which is its consideration or the legality of its content with regard to the provisions of Article 3323-4 of the Public Health Code.

CA Paris, 3 December 2020, LawLex202000003684JBJ, noting that while the existence of sponsorship of the Rock en Seine festival is evident both from the admission of its organizers, who acknowledge a lack of necessary resources and the significant additional funding provided by the disputed partnership, and from the fact that the festival has been provided with the semi-figurative trademark Pression Live (associating the name Pression Live. com with a logo comprising a red and white checkerboard), registered by the undertaking Brasseries Kronenbourg, such sponsorship is unlawful only insofar as the plaintiff association establishes that its effect or object is the direct or indirect propaganda or advertising of alcoholic beverages.

 CA Paris, 22 February 1994, LawLex200300004493JBJ: The offense of indirectly advertising an alcoholic beverage, referred to in Article L. 3323-3, paragraph 1, of the Code of Public Health, is doubly constituted when the product subject to sponsorship advertising is an alcohol-free version of the drink with the same logo and name as the alcohol version of the beverage, and is marketed by the same manufacturer.

 Cass. com., 24 September 2003, LawLex200300004172JBJ, upholding CA Lyon, 29 November 2001, LawLex200300003629JBJ.

 Case C-429/02 Bacardi France (SAS) v Télévision française 1 (SA), Groupe Jean-Claude Darmon (SA), Girosport (SARL), Judgment of 13 July 2004, LawLex200900000742JBJ. 

 Cass. com., 5 April 2005, LawLex200500005262JBJ.

 Cons. d'Ét., 4 July 1997, LawLex200300001777JBJ.

 Cons. d'Ét., 4 July, LawLex200300001777JBJ, cited above; for applications see Cass. com., 6 May 2002, LawLex200300003163JBJ, upholding CA Versailles, 17 December 1998, LawLex200300003325JBJ: the parties have concluded a contract under which an alcoholic beverage became the official partner of a festival. As a result of the entry into force of the Evin Law, the distributor of the beverage in question relying on a clause of the contract relating to the impossibility of performance and requested a judicial annulment of the contract. Noting that the contract provided that the sums paid by one of them, would be not to support the Festival but in return for other benefits, the Versailles Court of Appeal, subsequently upheld approved by the Court of Cassation, has reclassified the agreement as advertising agreement. A number of benefits could no longer be carried out following the entry into force of the loi Evin, so the clause providing for the voiding of the contract had to be implemented.

French Consumer Law

72. Alcohol or product reminiscent of alcoholic beverage

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72. Alcohol or product reminiscent of alcoholic beverage

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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