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 Consumer Code makes no distinction between commercial practices that are offered to the consumer free of charge or for payment. Thus, within the framework of a sweepstake, the gratuity of the gift offered to the consumer and the lack of contract does not exclude the possibility of prosecution on the grounds of Articles L. 121-2 and L. 121-3, in particular when the advertisement contains false  …

 Free or paid operation

In essence, the advertisement aims to publicize and promote a product or service to encourage recipients to buy the product or use the service. However, according to the directive and the Consumer Code, all information given to consumers in order to encourage them to purchase fall within the scope of the prohibition if they prove misleading.

According to case law prior to the transposition of the directive, information disseminated in the print or broadcast media could not be qualified as advertising, when the manufacturer of the product mentioned had not participated in its preparation : one of the component elements of the offense, i.e. the existence of an advertiser having a commercial interest in the dissemination of the message, was lacking. The offense was also not characterized when the misleading nature of the message was due to an error of the medium  or when the journalist, who was also the producer of the product, actually carried out his activity as a freelance journalist . However, infomercials ordered by professionals constituted advertisement and were not neutral and objective information from a third party . Similarly, information to the press presented as scientific was considered an advertisement when the communication agency that established it merely relayed the data provided by its customer, with whom it had no independence . Article L. 121-4 of the Consumer Code, which lists the misleading commercial practices per se, prohibited in all circumstances, now expressly cover this type of practice . Thus, a website which fails to specify that the advertisements of goods it portrays are paid for by advertisers falls foul of the provision , a practice which can also be sanctioned under Article L. 121-3 which governs misleading practices by omission .

Furthermore, the Court of Cassation suggested that the provision by Google of the AdWords system, which generates commercial links after entering certain keywords, might not characterize an advertising service within the meaning of Articles L. 121-2 and L. 121-3 of the Consumer Code  as Google's role seems to be limited to that of an advertising medium. Also not covered by the prohibition is the propaganda message in favor of a change of legislation, when it does not tend to promote the sale of a product or service currently offered on the market : opinion campaigns are not likely to alter the purchase decision of a consumer . Similarly, a post published on a consumerist blog which alerts consumers to the dangers of toxic packaging does not fall within the scope of the provisions prohibiting misleading commercial practices, since it does not strictly speaking constitute an advertisement for a product or products, but is rather general information on food packaging . Lastly, the provisions of the Consumer Code relating to misleading commercial practices do not apply to transactions relating to the purchase of a product by a professional from a consumer .

 CA Aix-en-Provence, 13 February 1980, LawLex200300001593JBJ: the concept of advertising assumes the provision to a medium of a text established by a trader, opposing the concept of free information published by the print or broadcast media.

 CA Riom, 3 December 2003, LawLex200400000863JBJ: inaccuracies of a real estate advertisement attributable only to the medium, and not to the lessor.

Cass. com., 21 April 2011, LawLex201100000860JBJ, upholding CA Colmar, 30 March 2010, LawLex201000000413JBJ and, in the same case, Cass. com., 21 June 2016, LawLex201600001155JBJ.

T. com. Versailles, 5 March 2020, LawLex202000000337JBJ.

Cass. crim., 5 December 2017, LawLex201700002047JBJ.

CA Paris, 14 April 1995, LawLex200500007434JBJ.

CA Paris, 11 October 1994, LawLex200300001714JBJ: in this case, a supplement presented as the result of an objective investigation carried out by the editorial staff of the magazine that published it, and was entitled "advertorial". However, the document had been prepared at the request of the director of the establishment whose merits it extolled. It was therefore an advertisement. - See also Paris, November 19, 1997, LawLex200200000380JBJ: an infomercial ordered and financed by a manufacturer constitutes an advertisement, even if it is designed and created by professional journalists.

CA Paris, 29 September 2008, LawLex201200001309JBJ.

In point 11, it prohibits the fact of "using editorial content in the media to promote a product or service where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer". These provisions can be combined with those of Article 20 of the Law of June 21, 2004 on confidence in the digital economy (LCEN) pursuant to which: "Any advertising, in any form whatsoever, accessible by an online public communication service, must be able to be clearly identified as such. It must make clearly identifiable the individual or legal entity on whose behalf it is carried out. / The previous paragraph shall apply without prejudice to the provisions prohibiting misleading commercial practices laid down in Article L. 121-1 (current Articles L. 121-2 and L. 121-3) of the Consumer Code."

Cass. com., 7 May 2019, LawLex201900000623JBJ, partially upholding CA Paris, 17 March 2017, LawLex201700000551JBJ.

CA Paris, 17 March 2017, LawLex201700000551JBJ.

Cass. com., 7 July 2010, 2 judgments, LawLex201000000860JBJ and LawLex201000000864JBJ.

CA Colmar, 7 May 2008, LawLex200800000555JBJ; 11 June 2014, LawLex201400002136JBJ.

 Information inciting consumers to purchase

The Consumer Code makes no distinction between commercial practices that are offered to the consumer free of charge or for payment. Thus, within the framework of a sweepstake, the gratuity of the gift offered to the consumer and the lack of contract does not exclude the possibility of prosecution on the grounds of Articles L. 121-2 and L. 121-3, in particular when the advertisement contains false information on the value of the gift in question . Similarly, the offer of free participation in a lottery falls within the scope of the text  as the advertiser's aim is to have the recipients order documents . Indeed, even if the game is free, the participation form is likely to mislead the average consumer on his status as winner . This is also the case when a free operation presents the offer as unconditional, although it is left entirely at the discretion of the advertiser .

Cass. crim., 8 March 1990, LawLex200300002430JBJ, quashing CA Colmar, 16 June 1987, LawLex200300004132JBJ.

  Cass. crim., 30 October 1990, LawLex200300002433JBJ, upholding CA Douai, 17 May 1989, LawLex200300001626JBJ; CA Rennes, 19 December 2002 LawLex200300003827JBJ, ruling that the texts do not make the paid nature of the assignment a component element of the offense of false advertising.

CA Versailles, 14 February 1991, LawLex200300001634JBJ: launch of a contest not merely for the purpose of awarding a prize but within the framework of a commercial strategy adapted to mail-order selling intended to encourage the placing of orders.

Cass. crim., 28 May 1997, LawLex200300002441JBJ, upholding CA Besançon, 28 May 1996, LawLex200300002551JBJ.

Cass. crim., 27 November 1996, LawLex200300003794JBJ, upholding CA Bordeaux, 27 June 1995, LawLex200300001690JBJ.

French Consumer Law

133. Free or paid operation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

133. Free or paid operation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise