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

Lotteries are very often used as a means of advertising by mail-order companies, to encourage consumers to buy. They most often take the form of lotteries with a pre-draw and/or post-draw: consumers receive personalized advertising documents which suggest that they have won a prize after a pre-draw or that they will win a large prize, although virtually all participants only actually receive a pri …

 Principle of lawfulness of advertising lotteries.

Lotteries are very often used as a means of advertising by mail-order companies, to encourage consumers to buy. They most often take the form of lotteries with a pre-draw and/or post-draw: consumers receive personalized advertising documents which suggest that they have won a prize after a pre-draw or that they will win a large prize, although virtually all participants only actually receive a prize of minimum value or discover that its award is subject to a later draw - a post-draw. In reality, the sole objective of these operations is to make the recipient of the documents place orders by maintaining the illusion that he will increase his chances of winning by attaching a duly completed order form to the entry form or to his written request to claim the prize(s).

The ambiguity created by the advertising documents has generated a great deal of litigation. However, the Law of 21 May 1836, whose provisions were codified in the Internal Security Code, proved incapable of combating such abusive practices, as the fact that these lotteries were free exempted them from the scope of the general principle of prohibition . Disappointed participants could only incur the tortious liability of the lottery organizer or rely on the texts sanctioning misleading advertising . In order to overcome the shortcomings of the Law of 21 May 1836, the legislator laid down the conditions of lawfulness of advertising lotteries carried out in writing, by the adoption of Law No 89-421 of 23 June 1989 .

Article L. 121-36 of the Consumer Code stated that “written advertising operations which tend to give rise to the expectation of a gain attributed to each of the participants, whatever the methods of the draw, may be used only if they do not impose on the participants any financial consideration or expense in any form whatsoever”. The concept of written document was broadly understood and included both paper and digital advertising .

In other words, when it was free, the advertising lottery was lawful if it met the conditions listed in Articles L. 121-36 et seq. of the Consumer Code, which were aimed at ensuring fair information for the consumer.

Subsequently, in order to take account of developments in European consumer protection law and bring French legislation into conformity with Directive No 2005/29, Law No 2011-525 of 17 May 2011 amended Article L. 121-36 of the Consumer Code to specify that where participation in a lottery is subject to an obligation to purchase, “the practice is unlawful only insofar as it is of an unfair nature within the meaning of Article L. 120-1”. However, since this “minimal” conformity with European law is contrary to the principle of full harmonization required by the text, the French legislator once again intervened, by the Hamon Law of 17 March 2014 , then by Law No 2014-1545 of 20 December 2014 on the simplification of business practices  which substantially reformed the law on advertising lotteries by reducing it to Article L. 121-36 of the Consumer Code. The re-codification Ordinance of March 14, 2016, which moves the offense to Article L. 121-20, amended the text once more by transforming the principle of the lawfulness of lotteries, subject to the absence of an unfair commercial practice, into a principle of prohibition in case of an unfair commercial practice. A commercial practice is unfair within the meaning of Article L. 121-1 (former Article L. 120-1) of the same code, if it is not contrary to the requirements of professional diligence and does not materially distort or is not likely to materially distort the economic behavior of the average consumer - or misleading within the meaning of Articles L. 121-2 et seq. (former Article L. 121-1) or aggressive within the meaning of Articles L. 121-6 et seq. (former Articles L. 122-1 and L. 122-1-1).

 CA Douai, 22 June 1988, LawLex200300002492JBJ, holding that to be punishable within the meaning of the Law of 21 May 1836, the lottery must be carried out against payment, that it only has this character for the participant if his participation is materialized by a financial sacrifice and that this sacrifice is granted in consideration of the offer made to him:  "this commutative and necessary link between the offer and the financial sacrifice does not exist when, as in this case, the participant was informed at the time the offer was made that chance had already, free of charge for him, determined his fate, and that the operation, apart from its expected consequences in commercial terms, has no other impact than to present him with the choice to possess or not what proves to be a gift, from the most significant to the most modest of which, he can estimate the value"; CA Douai, 19 July 1990, LawLex200300002493JBJ.

 In this case, the offense of misleading advertising was constituted when the consumer was misled as to the status of winner or the value of the prizes. Article L. 121-1 of the Consumer Code was amended by Law 2008-3 of 3 January 2008 for the development of competition for consumers which, transposing Directive No 2005/29 of 11 May 2005 on unfair commercial practices, created a new offense of misleading commercial practices. The new incrimination now encompasses the former qualification of misleading advertising while extending its scope to other practices already considered by case law. A distinction is made between misleading practices by action and misleading practices by omission, reserved only to consumers. Law No 2008-776 of 4 August 2008 on the modernization of the economy has also created a new Article L. 121-1-1 which, based on the model of the Directive of 11 May 2005, lists a number of misleading marketing practices. The text refers, in particular, to claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent. The recodification Order moved this text to Article L. 121-4.

 The text has been codified in Articles L. 121-36 to L. 121-41 and R. 121-11 to R. 121-13 of the Consumer Code. Now, only the former Article L. 121-36 remains, which has become Article L. 121-20.

 Senate Report No 323 on Law No 89-421 of 23 June 1989. Verbal lotteries or lotteries proposed on radio or audiovisual media fall under the provisions of the Internal Security Code.

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

French Consumer Law

245. Principle of lawfulness of advertising lotteries.

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245. Principle of lawfulness of advertising lotteries.

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