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

Certain products or services may not be the subject of audiovisual commercial communication, usually for reasons of protection of public health. Directive No 2010/13 prohibits all forms of advertising promoting: 
-	 cigarettes and other tobacco products,as well as electronic cigarettes and refill containers, whether by direct or indirect advertising ;
- alcoholic beverages where the advertisement  …

Banned products

Certain products or services may not be the subject of audiovisual commercial communication, usually for reasons of protection of public health. Directive No 2010/13 prohibits all forms of advertising promoting: 

-	 cigarettes and other tobacco products,as well as electronic cigarettes and refill containers, whether by direct or indirect advertising ;

- alcoholic beverages where the advertisement is aimed at minors or where it encourages immoderate consumption of such beverages ; and,

-	 medicinal products and medical treatment available only on prescription .

The Public Health Code is particularly rigorous. The regulatory authority Arcom (previously CSA) has also fixed the conditions in which tobacco products, alcoholic beverages and illicit drugs can be presented in programs broadcast .

1) Cigarettes and other tobacco or vaping products

Under French Law Article L. 3512-4 (formerly L. 3511-3) of the Public Health Code  generally prohibits all advertising, whether direct or indirect, of tobacco and tobacco products with the exception, as per Article L. 3511-5, of the broadcasting of motor sports events in countries where tobacco advertising is permitted , applicable also to TV sponsorship. The Health Minister, when questioned by the regulator as to whether advertising of electronic cigarettes  (e-cigarettes) constituted direct or indirect advertising or propaganda, for tobacco or tobacco products or if electronic cigarettes should be regarded as medicine within the meaning of Article L. 5121-2 of the Public Health Code , responded that  “advertising for an electronic vaping device must observe the limits laid down by the Public Health Code concerning the indirect advertising of tobacco and the advertising of medicines by its presentation”  and that  “[...] any advertising for an electronic vaping device or for a recharge of liquid intended to be used with such a product, insofar as it recalls, in its presentation (taste, slogan, etc.), its appellation (name, logo, brand, etc.) or its graphics (visual advertising, form of the model, etc.) tobacco, a tobacco product or the act of smoking is prohibited, even in cases where the device or recharge does not contain nicotine”. Since then, the Law of 26 January 2016 on the modernization of the French health system  has brought amendments to the Public Health Code banning propaganda or advertising, whether direct or indirect, in favor of “electronic vaping devices and related refill containers”. Ordinance No 2016-623 of 19 May 2016 , confirmed the ban by adding a section devoted specifically to “vaping products” and creating new article L. 3513-4 of the Public Health Code, stating that propaganda or advertising, whether direct or indirect, of vaping products is prohibited. 

In its Deliberation of 17 June 2008, Arcom specifies that :

-	 no reference to tobacco or to any of its products is tolerated in advertisements, which implies that no person consuming a tobacco product may be shown in an advertisement with the exception of anti-smoking campaigns; 

- showing tobacco products or persons consuming them is possible in television news reports, news programs and documentaries, provided that the images shown are not promotional and could not be equated to propaganda ; 

- showing tobacco products or smoking must be avoided in TV reality shows; 

-	 showing cigarette brands in real time broadcasts or situations similar to real time broadcasts of motor sports events taking place in countries where tobacco advertising is permitted, is authorized. 

Article L. 3323-2 of the Public Health Code is stricter than the European regulations and lays down a total prohibition of the direct or indirect audiovisual advertising of alcoholic beverages . 

After clarifying the definition of such beverages as any drink with a degree volume of alcohol of more than 1.2%, the regulatory authority in its 2008 decision specified the terms of implementation of the ban :

-	 an advertisement that depicts, even if fleetingly, identified or identifiable bottles of alcohol is unlawful; 

-	 an advertisement for a foodstuff containing the alcohol is not regarded as an advertisement or propaganda, whether direct or indirect, of an alcoholic beverage, if the advertising message does not promote the alcohol in it; and 

-	 references to alcoholic beverages in television programs, especially in news programs or documentaries are not prohibited on condition that the presentation is neither complacent nor laudatory and is not promotional . Subject to compliance with those conditions, Arcom also allows (i)  a report directly or indirectly to refer to the production of alcohol, including wine “insofar as oenology and viticulture are part of the [French] national heritage”; (ii) the advertising of information concerning a common seasonal event e.g. the sale of “Beaujolais nouveau” wine,"; or (iii) occasional references to alcoholic beverages in cooking programs where they constitute an ingredient of a dish or in relation to which wines suit which dishes. Overall, Arcom encourages the raising of awareness by broadcaster of the dangers of excessive of alcohol consumption and requires them to indicate that alcohol should be consumed in moderation. 

Pursuant to Article L. 5122-6, paragraph 1 of the Public Health Code, “advertising a medicinal product to the general public is permitted only on condition that the drug is not subject to medical prescription, that none of its various forms is refundable by the compulsory health insurance schemes and that the marketing authorization or registration does not include a prohibition or restrictions on advertising to the public due to a possible risk to public health, particularly when the drug should not be used without a diagnosis and the initiation or the monitoring of treatment by a doctor”. Advertising campaigns for drugs aimed at  stopping or reducing smoking or vaccines subject to medical prescription or which are reimbursable are, however, permitted (Article L. 5122-6, para. 3). The last paragraph of article L. 5122-6 specifies that advertisements for drugs not subject to medical prescription and non-reimbursable are required to include a warning message and advise that a doctor should be consulted if symptoms persist.

In addition, by virtue of Article L. 122-13 (formerly L. 121-51) of the Consumer Code, advertising for medicines for new-born babies is allowed only in literature aimed at health professions.

As Article L. 3421-4 of the Public Health Code prohibits the use of illicit substances or plants classified as illegal in application of Article L. 5132-7 of the same code, the Arcom  stresses that it is forbidden to show illicit drugs or any person consuming such drugs with the exception of news programs, documentaries and fiction, or to relate drug use in a positive or ambiguous manner. Illicit drugs or drug users can be portrayed in news programs and documentaries, as long as it is coherent with the object of the program or documentary and that such programs in no way encourage drug use i.e. the consumption of drugs and users of drugs must not be portrayed positively.

In addition, the Council asks that broadcasters monitor programs likely to trivialize illegal drug use via the following warning: “The use of narcotic drugs is dangerous to health and prohibited by the law” and refers the public to the drugs information service, “Drogues Info Service”.

The advertising of firearms is partially prohibited. Article 5 of Decree No 85-105 of 9 December 1985  implementing Law No 85-106 of 12 July 1985  on the advertising of firearms and ammunition states that “for advertising to be possible [...], the audio-visual communication media which are available to the public by digital terrestrial broadcasting or any other medium, whether sound, image, documents, data or messages of any nature, must, without prejudice to the other rules relating to advertising in the field of audiovisual communication, devote more than a third of the part of their programming left free of advertising to programs related to hunting, fishing or shooting for sport”.

Point 2.1.1 of the above-mentioned deliberation.

See CSA, 9 February 2010, issuing a formal notice to France Télévisions, LawLex201500000992JBJ.

Although Article L. 3323-2 of the Public Health Code prohibits the advertising of alcohol on television, it permits it in the written press, on the radio, in the form of posters and signage, the distribution by  producers, manufacturers, importers, traders, dealers or warehousekeepers, messages, commercial circulars, catalogs and brochures, etc.

See CSA, 9 February 2010, LawLex201500000992JBJ, cited above.

CSA Deliberation No 2008-51 of 17 June 2008 on the on air display of tobacco, alcoholic beverages and illicit drugs.

Ordinance 2016-623 of 19 May 2016 transposing Directive No 2014/40 concerning the manufacture, presentation and sale of tobacco and related products has recodified Articles L. 3511-1 et seq. of the Public Health Code  now found in Articles L. 3512-4 et seq.

Cass. crim., 4 May 2004, LawLex200400002301JBJ. The exemption provided for in Article L. 3511-5 is narrowly interpreted, TGI Bordeaux, 12 January 2005, LawLex200600001116JBJ.

Circular of 25 September 2014 on the regulation of advertising for e-cigarette devices: http://www.arpp-pub.org/IMG/pdf/circulaire_encadrement_publicite_dispositifs_electroniques_vapotage.pdf

The circular at the time already stated that in application of Articles L. 3511-3 and L. 3511-4 of the Public Health Code and subject to the discretion of the court, it is prohibited to advertise : for an electronic vaping device model which looks particularly like a cigarette, cigar, cigarillo, pipe or any other tobacco product; for e-liquid refills or a recharge kit for an e-cigarette device which makes an express reference to the taste of tobacco; for an electronic vaping devise or recharge kit containing a slogan, image, brand logo and name which makes reference to tobacco or smoking.

French Consumer Law

84. Banned products

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84. Banned products

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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