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

Article L. 3512-4 (formerly L. 3511-3) of the Public Health Code prohibits propaganda or advertising, directly or indirectly, in favor of tobacco or tobacco products as well as any free distribution or sale of a tobacco product at a promotional price. Similarly, new Article L. 3513-4  prohibits direct or indirect propaganda or advertising in favor of vaping products. Law No 91-32 of 10 January 199 …

 Advertising of tobacco or vaping products

Law No 81-766 of 10 August 1981 on the price of books, known as the “Lang Law”, limits the possibility to offer bonuses when the sale of the book is the basis of the bonus . The practice of selling with a bonus is thus prohibited to booksellers. Under Article 6 of the Law of 10 August 1981, sales with a bonus relating to books are authorized when they are the subject of an edition reserved exclusively for sale by brokerage, subscription or correspondence. However, bonuses must comply with the provisions of Article 4 of the same Law, which stipulates that in the event of publication of a book for distribution by brokerage, subscription or correspondence, less than nine months after the sale of the first edition, the sale price to the public must be at least equal to that of the first edition. As a result, the mail-order sale of a book before the expiry of the nine-month period from its first edition, together with the possibility of acquiring another book also recently published at a reduced price, constitutes a sale with a bonus when books are not published exclusively for dissemination outside bookstores .

Article 1 of the Law of 10 August 1981 also requires retailers to charge an actual sale price to the public of between 95% and 100% of the price fixed by the publisher or importer. Only discounts of less than 5% are allowed. Consequently, the award of a bonus consisting of books characterizes an infringement of the law of 10 August 1981 when it leads to a discount of more than 5% of the value of the main sale price . It does not matter whether the bonus is free or self-paying. The possibility of obtaining, subject to the purchase of thirty liters of gasoline, a comic book against payment of a modest sum, was thus declared non-compliant with the regulations on the price of books . As this transaction involves two separate sales, the sale price of the book must be assessed independently of the sale price of the gasoline. The operation is unlawful, as this sum does not correspond to the selling price set by the publisher.

When the sale of books is the basis of the bonus, the infringement of the regulations on the price of books is characterized if the bonus is awarded free of charge . Similarly, regarded as a sale with a bonus prohibited under Article 1 of the Law of 10 August 1981, is the practice of discount vouchers handed over when books are purchased, which can be used simultaneously or subsequently to the purchase. Indeed, purchase vouchers may give rise to the provision, free of charge or at an attractive price, of another item or service at the time of a second purchase. More specifically, the bonus, even consisting of a purchase voucher, characterizes an advantage definitively acquired at the time of the first sale, even if its obtaining is deferred . Since the purchase voucher is not only intended to be partly charged against the price of other goods, it has a market value in itself.

As the Court of Cassation held in 2008 that the free postage offered as a bonus by online booksellers is not a prohibited bonus within the meaning of Article L. 121-19 (former Article L. 121-35) of the Consumer Code or Lang Law , the legislator intervened in 2014  to amend Article 1 of the Law of 1981, to encourage the retail sale of books. Now, under this provision, when the book is purchased by mail order and sent to the buyer, the retailer may apply a discount of 5% of the sale price (set by the publisher or importer) to the price of the delivery service it establishes, without being able to offer this service free of charge .

However, Article 3 of the Lang Law provides that the actual price of school books can be freely fixed when the purchase is made by an educational institution, specifically for its own needs, excluding resale. See, for an application Cass. com., 27 September 2017, LawLex201700001569JBJ. 

Cass. com., 13 March 2001, LawLex200400000101JBJ, considering that the delivery by a mail-order bookseller of "gift points" to be used for the purchase of other books constitutes an unlawful bonus.

Cass. com., 13 March 2001, LawLex200400000101JBJ, holding that books could not be sold at reduced prices beyond the legally authorized limits.

Cass. com., 29 January 2002, LawLex200500005753JBJ, upholding CA Versailles, 28 January 1999, LawLex200200001012JBJ, not finding the breach of Article L. 121-19 of the Consumer Code in the absence of a link between the two contracts of sale.

Cass. com., 1 April 1997, LawLex200200001279JBJ, upholding CA Paris, 25 October 1994, LawLex200200001528JBJ: in this case, a dictionary was sold at the publisher's price, but accompanied by a bonus consisting of another book awarded free of charge and bringing the sale price of the book to a price much lower than the minimum price authorized under the Lang Law.

Cass. com., 6 May 2008, LawLex200800000748JBJ: in this case, an Internet service provider gave its subscribers purchase vouchers to be used on the website of an online bookseller and free shipping for any order of books on one of the group's websites. SeeCass. com., 20 November 2007, LawLex200700001914JBJ.

Cass. com., 6 May 2008, cited above, quashing CA Paris, 23 May 2007, LawLex200700000860JBJ, which had found a violation of Article 6 of the Law of 10 August 1981 and of Article L. 121-19. The referring court followed the Court of Cassation: the free delivery of books does not constitute a sale with an unlawful bonus when the shipping or delivery of the product has no autonomous merchant nature in relation to this product and does not constitute a service separate and detachable from its sale (CA Paris, 9 April 2009, LawLex201000001086JBJ).

 Law No 2014-779 of 8 July 2014 governing the conditions for the distance selling of books and authorizing the Government to amend by order the provisions of the Intellectual Property Code on the publishing contract, OJ of 9 July 2014, 11363, known as the "anti-Amazon" law.

 Law No 81-766 of  10 August 1981 on the price of the book as amended, Article 1, paragraph 4: "[...] Retailers must charge an actual sale price to the public of between 95% and 100% of the price fixed by the publisher or importer. When the book is shipped to the buyer and not collected in a retail bookstore, the selling price is the one fixed by the publisher or importer. The retailer may apply a discount of 5% of this price on the price of the delivery service it establishes, without being able to offer this service free of charge.

 Price of books

Article L. 3512-4 (formerly L. 3511-3) of the Public Health Code prohibits propaganda or advertising, directly or indirectly, in favor of tobacco or tobacco products as well as any free distribution or sale of a tobacco product at a promotional price. Similarly, new Article L. 3513-4  prohibits direct or indirect propaganda or advertising in favor of vaping products. Law No 91-32 of 10 January 1990, known as the Evin Law, did not adopt the provisions of Article 4-1 of Law No 76-616 of 9 July 1976 which prohibited the offer, delivery or distribution, free or charge or not, of common or everyday items, if they bear the name, trademark or advertising symbol of a tobacco product or the name of a tobacco manufacturer, producer or distributor.

However, by broadly defining the concept of advertising as “any act of communication intended to promote a product or service”, case law criminalizes as unlawful advertising for tobacco  the distribution of promotional items linked to the purchase of cigarettes, to the extent that they encourage buyers to consume more tobacco. The offense of unlawful advertising for tobacco is thus constituted by the insertion in cigarette packages of prospectuses offering gifts that can be obtained by means of a variable number of proofs of purchases . The same applies when a company offers a free pair of earphones to any buyer of a packet of cigarettes of its brand, even if this gift, free of any distinctive sign recalling a tobacco product, is offered after the act of purchase and has no direct correlation with the packet of cigarettes .

Such a practice could also be penalized under the provisions of the former Article L. 121-35 of the Consumer Code if it met the conditions of the prohibition of sales with a bonus. Article L. 121-35 thus provided that if the objects constituting the bonus belonged “to the category of products and ingredients defined in former Article L. 3511-1 of the Public Health Code , they should not include any reference, graphics, presentation or other distinctive sign that recalls a product or ingredient, as defined in the same Article. In this case, health warnings relating to the dangers of tobacco [had to] be mentioned. References to the person concerned by the advertising operation, the name of the brand, symbol or logo [could] be affixed to the items, provided that they comply with the provisions restricting or regulating advertising concerning alcohol, tobacco and online gambling or betting, provided for in particular in Articles L. 3511-3, L. 3511-4 and L. 3323-2 to L. 3323-5 of the Public Health Code”. In practice, judges preferred to sanction this type of promotional operation on the basis of unlawful advertising for tobacco rather than in the context of selling with a bonus, which requires the assessment of the unfair nature of the practice examined . The legislator remedied this disadvantage by simply abolishing the reference to tobacco products in Article L. 121-19. Now, it is only on the basis of the provisions prohibiting the advertising of tobacco or vaping products that the distribution of advertising objects linked to the purchase of cigarettes or electronic cigarettes can be penalized.

Based on the Law of 26 January 2016 modernizing the [French] health system (OJ 22 of 27 January 2016) and Ordinance 2016-623 of 19 May 2016 transposing Directive 2014/40 concerning the manufacture, presentation and sale of tobacco and related products (OJ 116 of 20 May 2016).

 For examples of direct unlawful advertising for tobacco, see CA Paris, 25 November 1997, LawLex200300004533JBJ, upheld by Cass. crim., 15 December 1999; Paris, 11 April 2002, LawLex200300004153JBJ: the insertion in cigarette packets of a card adorned with a camel, indicating that in return for the justification of the purchase of a certain number of packets, their owners would receive CDs, compilations or concert tickets is considered a sale with a bonus, constituting unlawful advertising for tobacco.

 CA Paris, 22 May 1997, LawLex200300004101JBJ, holding that this operation was in complete contradiction with the youth protection objective pursued by the legislator in Article L. 3511-2-1, since the gifts offered could only attract a customer base of teenagers or very young adults. 

 Cass. crim., 20 November 2012, LawLex201300000018JBJ.

 Article L. 3511-1 of the Public Health Code (now Article L. 3512-1): "Tobacco products are considered as products intended to be smoked, sniffed, chewed or sucked, when they are made, even partially, of tobacco, and products intended to be smoked even if they do not contain tobacco, excluding products intended for medicinal use, within the meaning of the third paragraph (2°) of Article 564 decies of the General Tax Code. An ingredient is considered as any substance or component other than leaves and other natural or unprocessed parts of the tobacco plant, used in the manufacture or preparation of a tobacco product and still present in the finished product, even in a modified form, including the paper, filter, inks and glues. Manufacturers and importers of tobacco products must submit to the Ministry of Health a list of all ingredients and the quantities used in the manufacture of tobacco products, by brand and type, under the conditions laid down by decree of the Minister of Health".

 See, inter alia, CA Paris, 25 November 1997, LawLex200300004533JBJ, upheld by Cass. crim., 15 December 1999, LawLex200400000230JBJ: distribution of gifts not bearing the logo of the cigarette brand, by hostesses posted to tobacco shops, constitutive of unlawful direct advertising for tobacco, even if such an operation falls a priori under the provisions of Article L. 121-19.

French Consumer Law

226. Advertising of tobacco or vaping products

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

226. Advertising of tobacco or vaping products

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise