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

According to Article L. 122-1 (former Article L. 121-8) of the Consumer Code, comparative advertising must objectively compare one or more essential, relevant, verifiable and representative characteristics of goods or services, which may include the price. The comparison between two products or services must relate to a decisive element for the consumer and not secondary characteristics .
1)  Conc …

 Essential characteristics

According to Article L. 122-1 (former Article L. 121-8) of the Consumer Code, comparative advertising must objectively compare one or more essential, relevant, verifiable and representative characteristics of goods or services, which may include the price. The comparison between two products or services must relate to a decisive element for the consumer and not secondary characteristics .

According to the case law, an essential characteristic, within the meaning of Article L. 122-1, is the effectiveness of a drug  or the effects of interruption of a drug, irrespective of their rarity or benign nature . The mention of the term “generic” in an advertisement intended for health professionals makes a lawful comparison, as it compares essential, relevant, verifiable and representative characteristics . In fact, such a statement informs the consumer that the generic medicinal product has the same qualitative and quantitative composition of active ingredients and the same pharmaceutical form as the princeps product, whose bioequivalence has been demonstrated. The prices of medicinal products but also their packaging  or the excipients used can therefore be compared.

The essential characteristics are of a very different nature depending on the sector of economic activity concerned. In the case of broadcasting, the criterion of cumulative audience is essential, since it determines the advertising resources of radios and is used by the whole profession . For coffee makers, the fact that some generate no waste apart from coffee grounds  may be claimed by an advertiser. However, for a magazine, although the distribution represents an essential characteristic , this is not the case for the competitiveness of its advertising services .

Article L. 122-1 of the Consumer Code requires that the advertising compares “one or more essential, relevant, verifiable and representative characteristics” of the goods or services in question. This wording, resulting from the Ordinance of 23 August  2001, put an end to the controversy raised by Article 10 of the Law of 18 January 1992, which allowed comparative advertising only if it concerned “essential, significant, relevant and verifiable characteristics ”. The use of the plural suggests that the advertising should relate to at least two essential characteristics of the goods or services compared .

However, case law has recognized the lawfulness of comparisons limited to a single characteristic when it is essential, relevant, significant and verifiable. This is the case of the effectiveness of two drugs , or the listenership of radio stations . The Ordinance of 23 August 2001, which enshrined this solution, also assimilated the price to an “essential, relevant, verifiable and representative” characteristic of goods and services. In the case of a collective price comparison, case law requires an exhaustive and express mention of the other characteristics of the products compared, such as their quality or origin. According to the Court of Cassation, this requirement does not amount to imposing an additional condition of validity on the advertiser, but is only to enable the judge to verify that the products included in the assortment meet the same needs or pursue the same objective . The advertiser remains free to compare one or more essential characteristics of the products. However, the requirement of objectivity implies that the consumer can find out about the other essential characteristics not compared, inasmuch as they may explain the differences noted on those compared . When the comparison is based on price, it must be an essential characteristic of the product or service in question. This is not the case in the field of medicinal products, where the advertising must present at least the criteria of effectiveness or safety of use of the product .

 See meeting report of 24 April 1991, AN, 1710.

 CA Versailles, 3 April 1998, LawLex200300001342JBJ.

 Versailles, 3 April 1998, LawLex200300001342JBJ.

  TGI Paris, 1 April 1998, LawLex200300001343JBJ, which holds that the comparison between two radio stations does not necessarily have to relate to several characteristics, when it is relevant, upheld by CA Paris, January 18, 2002, LawLex200300001623JBJ. Cf. TGI Paris, 28 September 2005, LawLex200500009924JBJ, considering that a comparison is devoid of objectivity when it only relates to three characteristics of the product, chosen arbitrarily by the advertiser.

 Cass. com., 31 October 2006, LawLex200600002298JBJ: unlawfulness of a comparison on the price of an assortment of everyday consumer products.

  CA Colmar, 13 May 2008, LawLex200900000375JBJ.

 CA Paris, 28 April 2011, LawLex201100000846JBJ.

  CA Versailles, 22 May 1998, LawLex200300001340JBJ.

  Cass. com., 26 March 2008, LawLex200800000449JBJ, overturning CA Paris, 23 May 2006, LawLex200600001999JBJ.

 CA  Versailles, 13 December 2011, LawLex201500001110JBJ, on referral after cassation of CA Versailles, 6 September 2007, LawLex200900003242JBJ, by Cass. com., 7 July 2009, LawLex200900003108JBJ.

 TGI Paris, 1 April 1998, LawLex200300001343JBJ, which holds that "the cumulative audience of a radio over five days, from 5 am to midnight, constitutes an essential, significant and verifiable characteristic of the listenership", upheld by CA Paris, 18 January 2002, LawLex200300001623JBJ. See also, adopting the same solution but on the basis of the criterion of the relevance of the comparison, CA Paris, 10 September 1999, LawLex200200000918JBJ, upholding TGI Paris, 31 May 1996, LawLex200200001357JBJ. Cf. Cass. com., 18 December 2007, LawLex200800000002JBJ : in this case, a radio had published advertisements in which it presented itself as the first radio in two age groups. The comparative advertising is declared unlawful because it is not based on characteristics that are essential, relevant, verifiable and representative of the services concerned. The Court of Cassation seems to hold that the essential characteristic was not the place of first radio in the two age groups concerned but the radio services provided by the two radios. The court of appeal to which the case was referred considered that the advertiser, to comply with Article L. 122-1 (former Article L. 121-8), should have indicated the audience shares which constitute an essential characteristic of the radio services offered, CA Paris, September 4, 2009, LawLex201000000020JBJ.

 CA  Versailles, 19 May 2011, LawLex201100001024JBJ.

 CA Paris, 1 July 1998, LawLex200300001339JBJ.

 Versailles, 10 September 1998, LawLex200200001094JBJ.

French Consumer Law

290. Essential characteristics

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290. Essential characteristics

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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