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

A purchase incentive technique, a sale with a bonus consists in offering, for the purchase of a product or service, a product or service provided free of charge or under favorable conditions. This technique can be used to launch a new product or service (launch promotion), or to maintain customer interest for a product or company (maintenance promotion). The bonus must be distinguished from the gi …

Definition

A purchase incentive technique, a sale with a bonus consists in offering, for the purchase of a product or service, a product or service provided free of charge or under favorable conditions. This technique can be used to launch a new product or service (launch promotion), or to maintain customer interest for a product or company (maintenance promotion). The bonus must be distinguished from the gift which is offered to the consumer irrespective of any purchase . A gift consisting in the free provision of a product or service may be considered lawful . However, gifts must not be linked to a purchase obligation, otherwise they may be qualified as bonuses.

Article L. 121-19, paragraph 1 (former Article L. 121-35) of the Consumer Code lays down a principle of prohibition of sales and services with bonuses, tempered by the requirement (introduced by the Law of 17 May 2011, simplifying the law) that the practice in question is of an unfair nature. The bonus consisting in a good or service identical to that which was the subject of the sale or delivery was previously excluded from the scope of the prohibition . The Hamon Law  abolished this exception to the prohibition of sales with bonuses, meaning that the unfair nature of the practice is now the main criterion applicable to determine its lawfulness.

Thus, the new text prohibits “any sale or offer for sale of products or goods or any service or offer of services made to consumers giving entitlement, free of charge, immediately or in the future, to a bonus consisting of products, goods or services, when the practice in question is of an unfair nature within the meaning of Article L. 121-1”. A sale with a bonus is of an unfair nature, within the meaning of Article L. 121-1 (former Article L. 120-1), “when it is contrary to the requirements of professional diligence and materially distorts, or is likely to materially distort, the economic behavior of the normally informed and reasonably observant and circumspect consumer, in respect of a good or service” . Now, sales with bonuses are no longer prohibited in themselves, but on the condition that they are of an unfair nature.

Originally , by prohibiting sales with bonuses, the French legislator wished to protect both consumers and competitors from the perverse effects of this practice. By the incentive effect of the bonus, the consumer may, in particular, be tempted to make unnecessary and unreasonable purchases for the sole benefit of the bonus. The sale with a bonus may also be misleading, since, in many cases, the cost of the bonus is included in the cost price of the product, and therefore borne by the consumers. The buyer will therefore actually pay for what is advertised as free. Furthermore, the practice of sales with a bonus presents a risk to competition, which no longer depends on the quality of the goods and services or prices, but on the significance of the bonus. The prohibition of sales with bonuses also ensures the protection of companies which are not in a position to invest in this type of promotion. 

Gifts, e.g. the delivery of samples of a product to promote it, are no longer prohibited since Ordinance No 86-1243 of December 1, 1986.

See Cass. com., 15 November 1988: offer of publication of free advertisements; CA Riom, 6 June 1990, LawLex200200001869JBJ, dismissing the action for unfair competition brought against a retail company which had announced the free distribution of 5,000 loaves of bread. The Court of Appeal held that the operation was not a sale with a bonus, as it was not subject to the conclusion of a principal contract.

Former Article L. 121-35 (as amended by the Law of 17 May 2011) provided: "Is prohibited any sale or offer for sale of products or goods or any service or offer of services made to consumers giving entitlement, free of charge, immediately or in the future, to a bonus consisting of products, goods or services, except if they are identical to those which are the subject of the sale or delivery, when the practice in question is of an unfair nature within the meaning of Article L. 120-1".

Law No 2014-344 of 17 March 2014, on consumption.

Unfair commercial practices include the misleading commercial practices defined in Articles L. 121-2 to L. 121-4 and the aggressive commercial practices defined in Articles L. 121-6 to 121-7 (former Articles L. 121-11 and L. 122-11-1).

See the preparatory work for the Law of 20 March 1951, OJ AN July 29, 1950, 6126.

French Consumer Law

216. Definition

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216. Definition

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