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 application of the provisions of Article L. 122-1 (former Article L. 121-8) of the Consumer Code implies, first and foremost, the existence of an advertisement. However, the text does not define the concept of advertising . According to established case law, advertising is any document whose purpose is to promote the merits of a product or service to the existing or potential customers of an u …

Advertising medium

The application of the provisions of Article L. 122-1 (former Article L. 121-8) of the Consumer Code implies, first and foremost, the existence of an advertisement. However, the text does not define the concept of advertising . According to established case law, advertising is any document whose purpose is to promote the merits of a product or service to the existing or potential customers of an undertaking .

The generality of the provisions of Article L. 122-1 progressively led case law to substitute the concept of document for that of medium, of any kind, subject to the express exclusions of Article L. 122-4 (former Article L. 121-11). Thus, advertising mediums are messages disseminated by means of the press , posters  or advertising brochures or leaflets , or even by memory stick . A letter, even intended for a limited number of people, such as a circular letter sent to some advertiser customers of a magazine, can also be qualified as comparative advertising . More intangible media such as radio , television , or a website  can also serve as a vector for comparative advertising.

The decisive criterion lies in the public nature of the dissemination of the message: communications intended for internal use by the undertaking cannot, in principle, characterize an advertisement. However, when such documents are communicated externally, they must be assimilated to an advertisement. Comparative tables intended for the sales representatives of an operator, but which they communicate to third parties, in this case to professional dealers solicited  or visit aids or internal training and information documents intended, in principle, for pharmaceutical sales representatives, which are brought to the knowledge of the prescribing physicians to whom the advertising is addressed , constitute comparative advertisements.

Article L. 122-4 of the Consumer Code prohibits comparative advertising on certain advertising media. This includes packaging, invoices, tickets, means of payment or tickets to shows or places open to the public. The small size of these media and the significance of their dissemination seem to justify this prohibition, which has no equivalent in Directive No 2006/114. Indeed, in seems very difficult to assess the lawfulness of the advertising in this case and, where applicable, to sanction unlawful comparative advertising, in particular in case of an order to withdraw the advertising . The mention “at least 50% savings” on a user guide for ink cartridges was thus deemed unlawful . On the other hand, although expressly covered by Article L. 122-4, telephone bills sent by an operator to its customers could be regarded as constituting lawful comparative advertising, since their purpose was to foster customer loyalty .

  Cf. Directive No 2006/114 of 12 December 2006, Article 2 (a), which defines "advertising" as "the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations".

  CA Aix-en-Provence, 21 December 2001, LawLex200300001257JBJ; CA Paris, 8 December 1999, LawLex200300001336JBJ; CA Versailles, 10 September 1998, LawLex200200001094JBJ.

 CA Versailles, 9 December 2004, LawLex200600001214JBJ.

 Cass. com., 23 April 2003, LawLex200300001665JBJ, upholding on this point CA Versailles, 27 April 2000, LawLex200200000797JBJ.

 See OJ Sénat CR, 16 October 1991: the legislator justifies the prohibition of comparative advertising on these media as they "are of a nature to make extremely complex the verification of the lawfulness of the advertisements and the implementation of the obligation to inform the professional referred to and the possible application of a court decision ordering an advertiser to cease its campaign".

 CA Colmar, 28 May 2009, LawLex201200001034JBJ.

 CA Aix-en-Provence, 21 December 2001, LawLex200300001257JBJ, cited above.

 TGI Paris, 18 November 1992, LawLex200200001686JBJ; T. com. Paris, 15 January 2002, LawLex200200000513JBJ.

 CA Douai, 2 October 1995, LawLex200200001425JBJ.

 CA Versailles, 18 February 1999, LawLex200300001970JBJ; CA Orléans, 27 May 1999, LawLex200300001337JBJ.

 CA Grenoble 11 December 2008, LawLex201200001013JBJ; flash drives  distributed by a manufacturer in order to advertise a product it was about to launch, by means of a film.

 CA Versailles, 10 September 1998, LawLex200200001094JBJ.

 Cass. com., 18 December 2007, LawLex200800000002JBJ; CA Versailles, 27 June 2002, LawLex200300000979JBJ.

 CA Paris, 4 December 2002, LawLex200300001289JBJ.

 TGI Paris, 7 June 2006, LawLex200600001372JBJ, concerning an online price comparator; Cass. com., 24 November 2009, LawLex200900003559JBJ: comparative table published on a website. Cf. T. com. Paris, 29 March 2007, LawLex200700000409JBJ, finding that even if remarks made on a blog can constitute advertising, their impact is naturally limited.

The fact that a third party to the advertiser is the source of the comparison does not prevent the application of Article L. 122-1 (former Article L. 121-8) of the Consumer Code, when its dissemination conceals the desire to conquer, or even capture customers. For example, the publication by a manufacturer or service provider of a study that places its products at the top of the list constitutes advertising  and even if the competitor referred to in the advertising has validated the findings . This also applies to the use or dissemination of comparative studies conducted by third parties, but sponsored by the manufacturer and supplemented by its biased comments . Although comparative tests published by consumer associations or independent bodies do not fall under Article L. 122-1, an advertiser cannot benefit from this tolerance by falsely presenting the results of a study it has carried out as being from an impartial study conducted by an independent body , or as a genuine newspaper article . Similarly, the presentation by a magazine of products of a luxury brand and comparable products sold in supermarkets characterizes comparative advertising, when its purpose is to convince readers that they can acquire products of the same style at a lower price .

The magazine which publishes an article comparing a luxury garment model with a set of the same type sold in supermarkets, when the stylists concerned are in no way involved in this initiative  or the third-party company which has carried out the comparison on behalf of the advertiser when the inaccuracies are attributable to it, must also be considered as advertisers . However, a distributor cannot be prosecuted for comparative advertising disseminated by its supplier .

 TGI Pointe-à-Pitre, 7 January1998, LawLex200300001827JBJ.

 CA Nancy, 19 March 2007, LawLex200800000199JBJ.

  T. com. Paris, 16 May 1995, LawLex200200001453JBJ, upheld by CA Paris, 22 October 1997, LawLex200200001209JBJ; CA Versailles, 10 September 1998, LawLex200200001094JBJ; CA Paris, 21 June 2000, LawLex200200000766JBJ.

 Cass. com., 22 July 1986, LawLex200300002642JBJ.

 T. com. Paris, 15 January 2002, LawLex200200000513JBJ.

 CA Paris, 8 December 1999, LawLex200300001336JBJ.

 CA Paris, 8 December 1999, LawLex200300001336JBJ; cf. TGI Paris, 19 September 1997, LawLex200300001348JBJ, refusing to recognize the status of advertiser of the publisher of a magazine which published comparisons of products of different brands.

 CA Colmar, 12 June 2012, LawLex201200001032JBJ.

 CA Lyon, 7 November 2013, LawLex201300001636JBJ; CA Paris, 12 December 2013, LawLex201300001810JBJ.

French Consumer Law

282. Advertising medium

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

282. Advertising medium

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