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

When the advertising lottery is associated with a tobacco or vaping product, its organizer incurs the sanctions applicable to the offense of unlawful advertising of tobacco provided for in Article L. 3515-3 (formerly L. 3512-2) of the Public Health Code, which punishes violations of the regulations on advertising for tobacco by a fine of EUR 100,000 . Legal persons may also be declared criminally  …

Application of Article L. 3511-3 et seq. of the Public Health Code 

When the advertising lottery is associated with a tobacco or vaping product, its organizer incurs the sanctions applicable to the offense of unlawful advertising of tobacco provided for in Article L. 3515-3 (formerly L. 3512-2) of the Public Health Code, which punishes violations of the regulations on advertising for tobacco by a fine of EUR 100,000 . Legal persons may also be declared criminally liable for the offenses provided for in Article L. 3515-3 . To avoid any circumvention of the repressive provisions, case law adopts a broad definition of the concept of advertising, understood as any public communication, whatever its form, whose effect is to recall this product or a tobacco brand .

Any lottery game or any competition sponsored by a tobacco company, the sole purpose of which is to increase the consumption of tobacco and tobacco products, constitutes unlawful advertising for tobacco, even if the operation complies with the provisions of the Internal Security Code and of the Consumer Code relating to lotteries . Thus, the insertion of lottery tickets in a packet of cigarettes incurs the criminal liability of the company that organized the game and its leader, as an accomplice to the offense of indirect advertising of tobacco .

The fact that the lottery is not organized at the initiative of a tobacco company does not prevent its sanction. Case law also incriminates, pursuant to Article L. 3512-5 (formerly 3511-4) of the Public Health Code, the reproduction of a brand of cigarettes on the screen of a television proposed as a prize in advertising for a lottery . In fact, the simple reproduction, even incidental, of the figurative elements of a cigarette brand in the context of a lottery is sufficient to constitute unlawful advertising for tobacco. The moral element of the offense is characterized by the negligence of the professional who is responsible for verifying the legality of the advertising. Although the solution may seem severe vis-à-vis lottery organizers, it is in line with the letter of Article L. 3512-5, paragraph 1, of the Public Health Code, which does not require evidence of a clear desire to promote tobacco, but only the existence of advertising for a non-tobacco product or service that is suggestive of tobacco. 

 Article L. 3515-3 of the Public Health Code provides: "I. any direct or indirect propaganda or advertising of tobacco, a tobacco product or ingredients defined in Article L. 3512-1 in disregard of the prohibition provided for in Article L. 3512-4 is punishable by a fine of EUR 100 000 (...)."

 According to Article L. 3515-6 of the Public Health Code, "Legal entities declared criminally liable, in accordance with the conditions laid down in Article 121-2 of the Criminal Code, for the offenses provided for in Article L. 3515-3 incur incurs, in addition to the fine, the maximum rate of which is defined in accordance with the provisions of Articles 131-38 and L. 3515-4 of the Criminal Code: 1. The deletion, removal or confiscation of the prohibited advertisement at the expense of the offenders; 2. In the event of recidivism, prohibition of the sale of the products which were the subject of the unlawful operation for a period of less than or equal to five years. In the event of prosecution, the cessation of the advertising may be ordered either at the request of the public prosecutor's office or by the investigating judge in charge of the proceedings.The measure thus taken shall be enforceable notwithstanding any means of appeal. Release may be given by the court that ordered it or to which the matter is referred. The measure ceases to have effect in case of a decision of dismissal or acquittal. Decisions which rule on requests for release may be appealed before the investigating chamber or before the court of appeal, depending on whether they have been handed down by an investigating judge or by the court.

 See Cass. crim., 29 June 1999, LawLex200300003132JBJ ; 18 March 2003, LawLex200300001464JBJ.

 See, for a competititon: CA Paris, 12 April 1995, LawLex200300004096JBJ, upheld by Cass. crim., 17 January 1996, LawLex200300003434JBJ, which held that the absence of a mention of the tobacco brand or logo did not absolve the tobacco company from its liability, but testified to the fact that it was fully aware of the unlawful nature of its actions. In this case, a tobacco company had organized a free contest which invited participants to reply, by means of a newsletter distributed in tobacco shops, to questions relating to American roads which appeared in sketches on the packets of a cigarette brand. For the judges, the incentive nature of the advertising resulted from the fact that participants wishing to win the holiday offered were invited to buy packets of the disputed brand to be able to consult the sketches.

 CA Paris, 22 October 1997, LawLex200300001985JBJ, upheld  by Cass. crim., 23 February 1999, LawLex200300004084JBJ: form indicating "to find out if you have won a prize, by a packet of brand X cigarettes and call us". The solution may seem questionable under Article L. 3512-5, paragraph 1 (formerly L. 3511-4), of the Public Health Code, since the concept of indirect advertising implies that a product or service other than a tobacco product is the subject of the advertising, and the derogation provided for in Article L. 3512-5 (formerly L. 3511-4) paragraph 2, in favor of products other than tobacco bearing the name of a tobacco brand, but the judges restrictively interpret the derogation provided for by Article L. 3512-5, paragraph 2, in favor of products other than tobacco bearing the name of a tobacco brand (Cass. crim., 10 April 1997, LawLex200300004079JBJ).

 Cass. crim., 11 February 1998, LawLex200300003435JBJ, upholding CA Paris, 11 April 1996, LawLex200300004099JBJ: in this case, the television screen showed a racing car in the colors of a famous cigarette brand. The Court of Cassation does not call into question the solution of the trial judges who considered the exemption provided for in Article L. 3512-5, paragraph 2, inapplicable on the grounds that beyond the very letter of the text, the purpose of this derogation is to protect products that are unrelated to tobacco but whose trademark recalls a tobacco product; however, the disputed advertising, for a television, recalled a tobacco product without need related to a trademark. 

French Consumer Law

262. Application of Article L. 3511-3 et seq. of the Public Health Code

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

262. Application of Article L. 3511-3 et seq. of the Public Health Code

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