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

In order not to mislead the viewer as to the nature of the information he receives, Directive No 2010/13 of 10 March 2010 requires that television commercials are easily identifiable as such and broadcast separately from the rest of programs, in advertising slots. Advertising that does not respect these rules of identification may be qualified as surreptitious advertising in accordance with Articl …

Principle

In order not to mislead the viewer as to the nature of the information he receives, Directive No 2010/13 of 10 March 2010 requires that television commercials are easily identifiable as such and broadcast separately from the rest of programs, in advertising slots. Advertising that does not respect these rules of identification may be qualified as surreptitious advertising in accordance with Article 9(1)(a). Surreptitious advertising is “the verbal or visual presentation of goods, services, the name, trademark and activities of a producer of goods or service provider in programs, when this presentation is done intentionally by the media service provider for advertising purposes and may mislead the public as to the nature of such a presentation” (Art. 1(1) (j)).

The prohibition of surreptitious advertising assumes the meeting of two elements:

- the promotional intent of the media service provider during the presentation, done in particular against payment or consideration (Article 1(1)(j))  and

- the risk of error of the public as to the nature of the presentation.

Article 9 of Decree No 92-280 of 27 March 1992 defines surreptitious advertising as “the verbal or visual presentation of goods, services, the name, trademark or activities of a producer of goods or service provider in programs, when this presentation is done intentionally by the media service provider for advertising purposes”, i.e. not in order to inform, but to promote. Contrary to European law, the decree does not require proof of a risk of misleading the public as to the nature of the presentation. The advertising must be broadcast outside of advertising spots not to inform, but to promote.

In practice, the audiovisual regulatory authority, Arcom (former CSA), determines the promotional intent from a body of evidence, which includes, in particular:

-  the lack of plurality in the presentation of goods, services or brands  

-   a conspicuous favoring of a particular product  ; 

- the repeated mention and/or viewing of a product or brand  ; 

-  the indication of the address/telephone number or Website or an advertiser , and

The control and sanction of surreptitious advertising falls within the jurisdiction of the CSA . In France, surreptitious advertising is sanctioned, whether it is the result of a deliberate desire or the result of negligence. However, the mention of a product, service, name, brand or activities of a producer of goods or service provider is not systematically prohibited. It is not considered surreptitious advertising if the presentation is for informative purposes and is carried out without complacency. Personalities can therefore be invited on a television set to communicate on products or services in whose production they have participated (for example, an actor can talk about a film in which he had a role). Also, Arcom has on several occasions accepted that the name of a television channel is also that of a brand under which products or services are marketed .

 In the absence of remuneration or other consideration, which does not prevent characterizing the existence of a commercial intent (see , Case C-52/10 Eleftheri tileorasi AE Alter Channel, Judgment of 9 June 20111, LawLex201100001075JBJ), the interpretative communication of the Commission on certain aspects of the old “Television without Frontiers” Directive on television advertising (OJ 102 of 28 April 2004, 2) proposes to take into consideration as objective evidence “the undue prominence”, which may “in particular result from the recurring presence of the brand or product or service concerned or how these elements are presented and highlighted” (pt 33).

 Such an absence of plurality may in particular be characterized by the fact that the program or report in question is entirely devoted to a product, service or brand; see CSA, 23 October 2001, giving formal notice to TF1, LawLex200300001835JBJ, on a report devoted to the inauguration of a new show of an amusement park, verbally and visually revealing its three attractions; 6 November 2002, giving notice to Antenne Réunion, LawLex200400000399JBJ, concerning a daily program devoted to a game, intended to promote soft drinks; 10 December 2002, giving notice to SESI, LawLex200400000396JBJ; 8 July 2003, giving notice to France 3, LawLex200400000407JBJ, holding that the report devoted to the launch of a new television service, showing the logo of the new channel on air, mentioning its advertising slogan on two occasions and displaying this slogan once in full screen constitutes surreptitious advertising. Similarly, the absence of plurality may result from the fact that a product, service or brand is the subject of excessive promotion during a program, without any other product, service or brand benefiting from the same presentation, see CSA, 11 February 2003, giving notice to France 2, LawLex200400000394JBJ; 23 June 2009, giving notice to Métropole Télévision, LawLex201500000994JBJ, on a clothing brand overexposed during a talent show.

 A product can be presented in a flattering and non-coincidental way during a television report: see CSA, 6 November 1996, imposing a sanction on France 2, LawLex200300001819JBJ, excessive promotion of a Tunisian airline, the Tunisian Office of Tourism and some hotels for a total duration of 3 minutes, 10 seconds; March 30, 2004, giving notice to Paris Première, LawLex200400001400JBJ, on a report carried out in a bar and presenting beer and absinthe in a favourable light; 17 December 2004, giving notice to France 2, LawLex200500005736JBJ, broadcast, during a newscast, of a report presenting in a detailed and complacent manner the services of a travel agent specializing in aesthetic tourism, whose home page of its website was also displayed for several seconds; December 6, 2005, giving notice to the national program company France 3, LawLex200600001220JBJ, broadcast, during a newscast, of a report presenting a website organizing holidays for singles in a detailed and complacent manner, along with comments with no objective criticism. A complacent presentation can also result from the presenter's attitude: See CSA, 12 June 2001, giving notice to Canal Plus, LawLex200300001841JBJ, regarding a presenter who, during the retransmission of a football match, invited viewers on two occasions to connect to a website; 8 March 2005, giving notice to TF1, LawLex200600001222JBJ: complacent announcement of an imminent press publication, stating that it will be accompanied for the first time by a DVD, or that, in a laudatory tone, of the exclusive sale of discounted tickets by a distributor; 18 September 2013, giving notice to France Télévisions, LawLex201500000987JBJ: the presentation during a television program, of a book on the history of the Tour de France, written by an employee of the channel, who came to comment on it on the arrival of the day's stage, supported by archive images reflecting the clearly deliberate nature of the sequence, is a breach of the prohibition of surreptitious advertising.

 See CSA, 4 November 2003, imposing a financial penalty on France 2, LawLex200400000406JBJ: broadcast of a report presenting visually, on two occasions, food packaging trays of the same brand and illustrated by the interview of a person responsible for their marketing. The visible and repeated presence of a logo of a brand on the presenter's t-shirt is also regarded as surreptitious advertising, see CSA, November 6, 2002, giving notice to Fun TV, LawLex200400000397JBJ; 19 November 2002, giving notice to Fun TV, LawLex200400000398JBJ; 9 December 2003, imposing a financial penalty on Canal +, LawLex200400000405JBJ: repeated and conspicuous presentation, during a report, of clothing brands, one of which was created by the performer who was the subject of the report; 20 January 2004, giving notice to Canal +, LawLex200400000404JBJ.

 Television reports carried out in stores, presenting the products sold and the address and opening hours, constitute surreptitious advertising, see CSA, 23 February 1995, imposing a financial penalty on T.L.T., LawLex200300001821JBJ; 9 February 2000, imposing a financial penalty on France 2, LawLex200300001855JBJ: promotion of the book of a guest, in particular by indicating how to buy it; 22 April 2003, giving notice to AB1, LawLex200400000408JBJ: messages of an advertising nature for pornographic telephone numbers incorporated into advertising sequences.

 See CSA, 23 April 2002, giving notice to France 2, LawLex200400000403JBJ: report on a pastry chef, complacently presenting his shop and products, accompanied by particularly laudatory comments made in voice over; 9 February 2000, imposing a financial penalty on France 3, LawLex200300001834JBJ: report presenting in a flattering manner the stores, shelves, products and indication of the sale prices of a business, devoid of any critical analysis; 4 December 2007, giving notice to Trace TV, LawLex201500000997JBJ: the television service that constantly shows on the screen covers of a music album and DVD along with an excessively laudatory presentation and “listen to it now” and “to discover and share so not to forget” slogans engages in surreptitious advertising.

 See Cons. d'Ét., 18 May 1998, LawLex200300001831JBJ, holding that the television channel that violates the regulatory provisions prohibiting surreptitious advertising, may be subject to a financial penalty by the CSA, taking into account the rates that would have been applied if the advertising had been lawful. 

 See Cons. d'Ét., 2 December 2009, LawLex201200001149JBJ and LawLex201200001154JBJ: the use of a brand as denominator of a television channel does not constitute surreptitious advertising for the benefit of the products and services marketed under this brand, when the logo of the television channel is not confused with those of these products and services and the television channel does not broadcast commercials and does not enter into partnership agreements for the benefit of these products or services.

French Consumer Law

95. Principle

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95. Principle

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