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. 122-3 (former Article L. 121-10) of the Consumer Code  limits the possibilities of comparison when it concerns products with a controlled designation of origin or protected geographical indication. Advertising is permitted only if the comparison applies to products with the same appellation or indication. Also, according to these provisions, an advertisement can compare two wines with a …

Products with a controlled designation of origin or a protected geographical indication

Article L. 122-1 of the Consumer Code, in its version resulting from the Law of 18 January 1992 , required that the comparison be made with products of the same kind and, when it concerned prices, for identical products. The courts have interpreted this provision strictly  and required that the products be identical in terms of their brand, packaging, thread count, volume, size or color , although some flexibility has been noted in the area of services , or medicines .

Ordinance No 2001-741 of 23 August 2001, which transposed Directive No 97/55 of 6 October 1997 into national law, amended the French text. In fact, Directive No 97/55, for maximum harmonization, merely required that the comparison focused on goods or services “meeting the same needs or intended for the same purpose” . Article L. 121-8 (now Article L. 122-1) in its version following the Ordinance of 2001 complies with this wording, which significantly broadens the scope of the regulations, although the text still requires a certain substitutability between the products or services compared.

Thus, the rules governing comparative advertising have been deemed applicable to ads that compare everyday consumer products that meet the same needs: for eating, washing, cleaning , or if they do not meet exactly the same needs, when their differences are not perceptible by the average consumer . Differences in the gustatory quality of the products compared, related to the diversity of their origin, are irrelevant . Indeed, comparative advertising cannot be criticized on the grounds of subjective preferences, which vary from one consumer to another . When the ad concerns services, the products must also meet the same requirements as those to which they are compared: this is the case of the advertising services provided by a grouping of independent radio stations which is compared with large national stations . Moreover, since the products compared do not have to be strictly identical, the fact that their bar codes differ in no way affects the lawfulness of the advertising .

Conversely, the comparison between two internet subscription offers was declared unlawful, since they were not marketed under the same conditions, one being subject to the purchase of a subscription of a minimum duration of twelve months, while the other only required a minimum duration of three months . Similarly, a mobile operator cannot compare its “low cost” offer with the high-end packages of its competitors, as the services offered are not comparable . An advertisement also cannot compare the distribution of an advertising brochure to that of periodical magazines  or shopping carts of different stores whose content is not interchangeable in terms of characteristics or composition . The sale of the same product in packs of 200 or 500 g does not meet the same needs, since the second format corresponds to families and the first to other consumers, fewer in number . More generally, advertising that compares products designated by their category alone without indicating their quality or their characteristics does not make it possible to verify that they relate to goods meeting the same needs .

  Article L. 122-1, version Law of 18 January 1992: "Advertising which compares goods or services [...] must be limited to an objective comparison which may relate only to essential, significant, relevant and verifiable characteristics of goods or services of the same kind and available on the market. Where the comparison relates to prices, it must relate to identical products sold under the same conditions and indicate the length of time during which the prices mentioned as its own are maintained by the advertiser [...]".

 TGI Paris,  18 January 1989, LawLex200300001364JBJ, which finds fuel oil and electricity or gas to be two non-identical products, even if they have a similar purpose; TGI Paris, November 18, 1992, LawLex200200001686JBJ, which declares unlawful the comparison between the cost of gas heating and steam heating, because the products are not sold under the same conditions and are therefore not identical; CA Metz, 10 May 1995, LawLex200300001357JBJ, requiring products to be of the same trademark and same origin; CA Paris, 8 December 1999, LawLex200300001336JBJ: two suit models that are similar, but one of which bears the trademark of major fashion house, while the other comes from a high-street chain, are not of the same nature; CA Versailles, 27 June 2002, LawLex200300000979JBJ and 30 April 2004, LawLex200500004416JBJ, requiring a strict identicality of the products whose prices are compared.

CA Paris, 20 September 2016, LawLex201600001567JBJ.

CA Caen, 11 June 2015, LawLex201500000804JBJ.

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

  CA Saint-Denis, La Réunion, 6 May 2015, LawLex201500001112JBJ. See also T. com. Paris, 16 May 2007, LawLex200700000599JBJ: lack of comparability of telephone services, one of which offered separable services while the other proposed a global service.

 TGI Paris, 31 May 2006, LawLex200600001994JBJ.

 CA Caen, 26 September 2013, LawLex201300001454JBJ.

  CA Bordeaux, 21 September 2015, LawLex201500001162JBJ.

  CA Bourges, 10 January 2013, LawLex201300000158JBJ. See also CA Lyon, 5 June 2008, LawLex200900001221JBJ.

  Cass. crim., 22 December 1986, LawLex200300002643JBJ.

 CA  Paris, 5 April 1993, LawLex200300002871JBJ, regarding comparative advertising comparing radio audience ratings based on a media survey.

  T. com. Nanterre, 21 April 1997, LawLex200300001350JBJ, considering that the condition of absolute identicality was not possible when the advertisers are not distributors, but manufacturers; 19 December 1997, LawLex200300001345JBJ, based on a recommendation from the Medicines Agency, admitting that comparative advertising is possible for products of different chemical classes, but with the same therapeutic aim.

  Directive No 2006/114 of 12 December 2006 includes this requirement in Article 4 (b).

CA Poitiers, 16 June 2006, LawLex200700001075JBJ; also see CA Paris, 26 September 2017, LawLex201700001540JBJ, finding that the comparison between  filtering recipients and bottles of mineral water complies with the requirements of Article L. 122-1 of the Consumer Code where it concerns products that meet the same need, hydration through by drinking water: 31 January 2020, LawLex202000000198JBJ, holding that products that meet the same need or for the same purpose as food are interchangeable, even if they differ in terms of edibility, manufacturing conditions, composition or nutritional content.

 CA Paris, 4 December 2002, LawLex200300001289JBJ.

 CA  Rennes, 27 May 2008, LawLex201200001008JBJ. Contra:  CA Lyon, 5 March 2009, LawLex201200001193JBJ, holding that a jam containing 50% fruit and another containing 35% fruit, due to their composition and their nutritional or gustatory qualities, substantially if not greatly different, cannot be considered as meeting the same needs or same objective;  CA Nancy, 21 November 2012, LawLex201300000598JBJ: the comparison of food products implies their substitutability, which is assessed according to the consumer's search for taste sensations, essentially determined by the composition of the product.

CA Montpellier, 3 May 2016, LawLex201600000922JBJ.

Goods or services satisfying the same needs or having the same purpose

Article L. 122-3 (former Article L. 121-10) of the Consumer Code  limits the possibilities of comparison when it concerns products with a controlled designation of origin or protected geographical indication. Advertising is permitted only if the comparison applies to products with the same appellation or indication. Also, according to these provisions, an advertisement can compare two wines with a controlled appellation of origin, but not a Bordeaux wine and a Burgundy wine, which fall under two separate geographical indications. Similarly, a wine with the Bordeaux appellation cannot be compared with a wine of the Cahors appellation .

Union law adopts a more flexible position in this area. The Court of Justice permits the comparison of products without a controlled designation of origin with products bearing such a designation, provided that the advertiser does not unduly exploit the designation of origin of competing products .

  Consumer Code, Article L. 122-3: "For products benefiting from an appellation of origin or a protected geographical indication, the comparison is only permitted between products each benefiting from the same appellation or same indication".

  CA Bordeaux, 12  March 2013, LawLex201300000385JBJ.

  Case C-381/05 de Landtsheer Emmanuel SA v Comité Interprofessionnel du Vin de Champagne, Judgment of 19 April 2007, LawLex200900000596JBJ.

French Consumer Law

288. Products with a controlled designation of origin or a protected geographical indication

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288. Products with a controlled designation of origin or a protected geographical indication

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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