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 use of advertising to promote a product or service must be exercised within the limits of commercial fairness. The liability of the advertiser who deviates from this may be incurred, in particular on the grounds of unfair competition . The offense of false advertising intended to punish advertising that may mislead the consumer was introduced in 1963 , but its effect was initially limited as i …

Misleading commercial practices

The use of advertising to promote a product or service must be exercised within the limits of commercial fairness. The liability of the advertiser who deviates from this may be incurred, in particular on the grounds of unfair competition . The offense of false advertising intended to punish advertising that may mislead the consumer was introduced in 1963 , but its effect was initially limited as it was an intentional offense. In 1973, the Royer Law of 27 December 1973 introduced the concept of misleading advertising, codified in Article L. 121-1 of the Consumer Code. The term “misleading advertising” was preferred to that of “false advertising” since the text now covered not only intrinsically false advertising, but also advertising likely to mislead the consumer. The application of the text developed from this date, with the Court of Cassation no longer requiring that the accused had acted in bad faith for the offense to be established .

At the same time, the European legislator adopted Directive No 84/450 of 10 September 1984 intended to harmonize the laws of the Member States concerning misleading advertising which introduced a minimum protection of the consumer. Its transposition did not lead to the modification of the French text, as it already prohibited “any advertising containing, in any form whatsoever, allegations, indications, presentations that are false or likely to mislead” .

Following the adoption by the Commission of Directive No 2005/29 of May 11, 2005, concerning unfair business-to-consumer commercial practices in the internal market, which seeks to ensure that consumers are not misled or exposed to aggressive marketing and that any allegation made by traders in the European Union is clear, accurate and justified, Article L. 121-1 was amended, the material element of the offense being redefined and the scope of application of the text extended.

First, the offense was no longer limited to advertising, but now covered any commercial practice of a misleading nature. Then, a distinction was introduced between the misleading practice by action, referred to in Article 6 of the directive, and the misleading practice by omission, referred to in Article 7. Furthermore, new concepts, hitherto unknown in French law, emerged. Thus, misleading practices by action can be carried out by the creation of “confusion with any products, trade marks, trade names or other distinguishing marks of a competitor”. Similarly, within the framework of misleading practices by omission, special rules cover “invitations to purchase”. Finally, the list of misleading commercial practices per se defined in Annex I of the directive has been transposed.

Recodification Ordinance No 2016-301 of 14 March 2016 has divided Article L. 121-1 into several articles. Article L. 121-2 relates to misleading actions, i.e. commercial practices that create confusion with another product or service, trade mark, trade name or other distinguishing mark of a competitor or which are based on representations, information or presentations which are false or likely to mislead regarding elements defined by the text.

Article L. 121-3 covers misleading omissions, i.e. commercial practices that omit, conceal or provide material information in an unintelligible, ambiguous or untimely manner or do not indicate the true commercial intent of the professional when it is not already apparent from the context. Article L. 121-4 reproduces the list of misleading practices per se of the former Article L. 121-1-1. Finally, Article L. 121-5 specifies that Articles L. 121-2 to L. 121-4 apply to practices that concern both professionals and and non-professionals.

The list of elements  to which “representations, information or presentations which are false or likely to mislead” may relate has given rise to difficulties of interpretation. Is this list exhaustive or indicative? The principle of strict interpretation of criminal law advocates the first branch of the alternative. However, initially, the Court of Cassation adopted the opposite approach. It thus overturned a judgment which had acquitted an advertiser on the grounds that “the use of the word “first”, suggesting that product (X) was prior to the competing products or was superior to them or was the best-selling, does not fall within the exhaustively listed conditions” in the current Articles L. 121-2 and L. 121-3 . According to the court, such grounds were “unfit to demonstrate that the advertising at issue contained no presentation, information or misrepresentation likely to mislead” . The referring court, without expressly ruling on the issue, held that the term “first” could be interpreted as applying to the qualities of the product or to its properties, meaning that the advertisement could fall within the scope of the texts . In another case, it rejected the appeal of a farmer convicted of misleading advertising who argued that the sanctioned claims in no way fell within any of the cases provided for in the list . The most recent case law seems to return to a position consistent with the principle of strict interpretation. Thus, an appeal court exonerated from liability an advertiser sued for expressing the size of a computer or TV screen in inches rather than centimeters, holding that such presentation is not covered by any of the twenty-eight misleading commercial practices set out in the current Article L. 121-4 of the Consumer Code . Similarly, the Court of Cassation considered that the referencing method of a website consisting, when entering the name of a competitor, in displaying its own page, along with the words “why pay more” in the link, does not constitute advertising that is false or likely to mislead concerning one or more elements listed in Articles L. 121-2 and L. 121-3 of the Consumer Code .

 See VOGEL, French Competition Law, LawLex/Bruylant, 2015.

  Cass. com., 29 January 2013, LawLex201300000129JBJ.

 The directive qualified as misleading "any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches".

  Since 2008, the list of the current Article L. 121-2 includes two new elements: after-sales services (Article L. 121-2, 2°, d) and claims processing (Article L. 121-2, 2°, g).

 CA Versailles, 21 March 1991, LawLex200300002854JBJ.

 Cass. crim., 18 May 1993, LawLex200300003811JBJ.

 CA Rouen, 12 September 1995, LawLex200300001694JBJ.

 Cass. crim., 7 November 2006, LawLex200600002558JBJ.

  CA Rennes, 22 April 2011, LawLex201200001053JBJ.

French Consumer Law

129. Misleading commercial practices

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129. Misleading commercial practices

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Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise