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

As with misleading commercial practices, the misleading nature of the comparative message may result from the omission of critical comparative elements. Thus, a misleading omission is characterized when an advertisement compares the price of various heating methods, without mentioning the expenditure relating to installation , which, relating to the price of medicines, fails to point out that the  …

 Misleading omissions

Under Article L. 122-1 of the Commercial Code, advertising must not be misleading or likely to mislead. As with misleading marketing practices, the offense may be committed by false or misleading allegations.

Thus, on the basis of a survey of professionals, an advertiser cannot try to persuade consumers of the comparable effectiveness of drugs contrary to the opinion of the Commission , claim, unfairly, the full compatibility of its ink cartridges with the copiers of a major brand , or falsely claim that, like that of its competitor, its car park is guarded and is the cheapest . A campaign claiming that “so-called “organic” bananas imported from certain regions of the world do not comply with the much stricter European standards” is an unlawful disturbance insofar as those rules provide for a system of equivalence for certifications  .However, a publisher who, in order to promote its magazine with advertisers, makes use of the results of a survey ranking it in first place in terms of “spontaneous awareness”, whereas the “top of mind” criterion may be more apt is not guilty of misleading comparative advertising, insofar as its message is directed to advertising professionals who are used to this type of practice and are able to verify the statements . 

When the comparison focuses on prices, advertisements should not attribute a selling price to the competitor which is much higher than it actually is , or attribute to the advertiser selling prices that are lower than they are on the shelves . The fact that the misrepresentation in an advertising message is based on an error of calculation does not remove the misleading aspect of the advertisement . Also considered misleading is advertising which presents the prices compared as single prices uniformly charged in all the outlets in question although they are average prices ; which claims to compare the price of 150 products, when in reality it only covers 127  , which gives credence to the idea that the advertiser's prices are generally lower than those of its competitor even though it lowered its prices for the purpose of the comparative advertisement and increased them subsequently  or which implies that the advertiser generally charges lower prices than its competitors for major brand products when in fact the comparison is made only between two private label items . Finally, a retail chain cannot, in a comparative advertisement, state that the credit on its loyalty cards is usable whenever the customer wishes when in fact it can only be used 48 hours after the purchases are made, and only in the point of sale of issue . However, the fact that the targeted competitor's overall prices are lower than those of the advertiser does not make the advertisement misleading as long as the message is accurate for the sample selected .

On the other hand, it is possible to resort to hyperbole, used in advertising, taking into account the degree of discernment and the critical sense of the consumer. Thus, the use of slogans such as “the best” or “the most popular” does not suffice to characterize in itself an advertisement that is misleading or likely to mislead . Similarly, the slogan “who other than X” was not deemed misleading, since the advertiser does not claim that its services are of a higher quality than those of other operators . Advertising that claims the superiority of a product is not likely to mislead the consumer when it invites him to form his own opinion . Further, a comparative advertisement is not misleading merely due to the fact that the advertiser is presented as the least expensive retail chain in France insofar as that assertion is tempered by the statement that it applies only to a basket containing 80 products . However, use of the superlative must be based on objective elements that can justify it. Therefore, the advertisement in an online brokerage site claiming to be “the cheapest broker in France”, although in some cases, it is not, is misleading .

  CA Versailles, 23 March 2011, LawLex201200001046JBJ ; 25 May 2011, LawLex201200001035JBJ.

  TGI Paris, 13 July 2006, LawLex200700000598JBJ.

CA Rouen, 23 May 2019, LawLex201900000739JBJ.

CA Paris, 6 December 2017, LawLex201700002072JBJ.

CA Paris, 6 December 2017, LawLex201700002072JBJ; cf. CA Rouen, 14 September 2017, LawLex20171517, sanctioning the advertiser having implied  to consumers who did not have access to the catalog containing that information that the rebate announced is immediate while it is only credited to the retailer's loyalty card and usable 48 hours after the purchase.

CA Dijon, 30 January 2020, LawLex202000000204JBJ.

 T. com. Paris, 6 November 2002, LawLex200300000941JBJ: comparative advertising on dog and cat food for professionals.

  Cass. crim., 10 May 2011, LawLex201100000940JBJ, quashing  CA Versailles, 16 October 2008, LawLex201100000155JBJ.

  T. com. Nice, 18 October 2002, LawLex200300002251JBJ: statements "you don't have to believe me" and "taste and compare".

 CA Paris, 18 October 2017, LawLex201700001700JBJ.

   CA Paris, 18 February 2009, LawLex200900001830JBJ, declaring misleading the advertisement of an online brokerage site claiming to be "the cheapest broker in France", although in some cases, it is not;  CA Versailles, 10 March 2010, LawLex201000001507JBJ.

   CA Douai, 28 March 2013, LawLex201300000532JBJ.

CA Paris, 15 December 2017, LawLex201700002073JBJ.

 CA Paris, 7 November 2017, LawLex201700001855JBJ.

  TGI Paris, 21 September 2005, LawLex200600001400JBJ;  CA Caen, 12 January 2012, LawLex201200000295JBJ;  CA Montpellier, 22 March 2016, LawLex201600000669JBJ; TGI Paris, 21 January 2017, LawLex201700000285JBJ.

   CA Bordeaux, 12 March 2013, LawLex201300000385JBJ: when the price of the compared products shown on the receipt is lower than the price on the shelf.

 CA Rouen, 14 September 2017, LawLex201700001517JBJ; cf. CA Paris, 7 November 2017, LawLex201700001855JBJ, holding that the claim of a bigger impact than that of its competitors by using different methods of calculation than those commonly used in the profession is not misleading when the method used is clearly set out.

  T. com. Paris, 4 June 2010, LawLex201000000691JBJ.

  CA  Versailles, 29 January 2009, Lawlex20121019, finding that the advertisement was misleading, claiming that the compared prices were recorded by a bailiff, although he remained outside the store and verified neither the actual presence of the articles listed, nor their price.

Misleading allegations

The presentation of the comparison may mislead the recipient of the advertisement.

The deceit may lie in the visual appearance of the message, which must be legible and comprehensible. Thus, the moderating details of the comparative advertisement must be legible from a reasonable distance, despite the small size of the characters  and in a form that enables the consumer to immediately understand the consequences .The presentation in a promotional leaflet of 34 promotional products, of which only 18, distributed among the other products, are subject to a price comparison, makes it difficult for the consumer to make any overall assessment as to the relevance of the comparison . On the other hand, the affixing of a comparative advertising display on a bus is not an obstacle to the readability and comprehension of the restrictions on the message because of the low speed in traffic of buses in built-up areas . Similarly, some courts have found that the fact that an advertising tagline is displayed vertically contrary to the recommendations of the ARPP (Professional Regulation Advertising Authority) is not enough to make the message misleading insofar as the ARPP is a private law association with no normative authority .

Presenting a message as from an official source, or a third party, worthy of confidence, can also be a source of deception. Thus, advertising in the form of a press article misleads the reader as to the informational and objective nature of the document . Comparative advertising is also misleading when the information it delivers is falsely presented as the result of an impartial study carried out by a body independent of the advertiser . Advertising that uses the findings of a marketing study that does not specifically focus on manufacturers of generic products, to extrapolate that one of them is the leader in this field , or that diverts a study that classifies it as the leader in only two municipalities, to imply that it is the national leader , is misleading. Likewise, the choice of a method of calculation of the difference in prices charged by two retailers which has the effect of widening the gap in favor of the advertiser and which does not correspond to the slogan in the message used by it, is such as to mislead consumers as to the amount of money they will save . Finally, an advertisement cannot place official sources and other sources on the same level to establish a correlation between the number of classified ads published and the commercial performance of a magazine . On the other hand, the presentation of an advertisement does not give rise to a risk of generalization when it clearly specifies that the comparison does not apply to the two retail chains in general but to two locally identified stores of those retailers  .

 CA Paris 27 November, 2002, LawLex200300000971JBJ, upholding T. com. Paris, 25 January, 2002, LawLex200300001306JBJ; cf.  CA Saint-Denis, La Réunion, 6 May 2015, LawLex201500001112JBJ.

 CA Paris, 4 December 2002, LawLex200300001289JBJ: advertisement not clearly warning the consumer that the rates displayed depend on the duration of calls (asterisk for the poster and scrolling banner at the bottom of the screen for television spots).See also  CA Saint-Denis, La Réunion, 6 May 2015, LawLex201500001112JBJ, advertising comparing the price of low cost and high-end telephone packages on roadside displays which highlights the attractive details and whose restrictions are barely legible, is misleading.

 CA Versailles, 20 November 1997, LawLex200200001205JBJ.

CA Aix-en-Provence, 14 June 2018, LawLex201800000940JBJ.

 CA Rennes, 5 March 2009, LawLex201200001036JBJ.

 CA  Paris, 27 November 2002, cited above: information displayed on the front grills of buses.

 CA Rouen, 14 September 2017, LawLex201700001517JBJ.

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

 Cass. crim., 22 December 1986, LawLex200300002643JBJ, upholding  CA Rennes, 26 February 1985, LawLex200300001366JBJ.

 T. com. 27 Nanterre May 2005, LawLex200500010397JBJ.

 CA Paris, 26 February 2013, LawLex201300000253JBJ.

 CA Paris, 22 March 2018, LawLex201800000521JBJ.

 Misleading presentations

As with misleading commercial practices, the misleading nature of the comparative message may result from the omission of critical comparative elements. Thus, a misleading omission is characterized when an advertisement compares the price of various heating methods, without mentioning the expenditure relating to installation , which, relating to the price of medicines, fails to point out that the product being advertised must be associated with another, increases the cost of the treatment , states that the competitor's vacuum cleaner loses a quarter of its power of suction without specifying the conditions in which this phenomenon occurs , or compares car rental rates for a week, without indicating that the advertiser's agencies are not open on Saturdays .

In general, any advertisement that does not contain complete information on the comparative characteristics is likely to mislead . Advertisements showing truncated results in order to suggest that the competitor's prices are higher than its prices  or that the advertiser is the leading operator in the market in question, whereas it has only recorded the highest growth , which compares several insurance contracts without taking account of the negotiated rates charged by the advertiser's competitor , in the same way as that of an airline which compares the average prices of its flights with those of its competitors without indicating the various options and services proposed by them , violates Article L. 122-1. An advertiser who fails to specify that the 5% store card credit promised to customers is only granted after five products are purchased disseminates a misleading advertisement . Finally, an ad comparing the prices charged by two retailers without specifying that the average prices assigned to the competitor include those charged in its hypermarkets and supermarkets which have different formats and pricing policies, is misleading .

On the other hand, comparative advertising on the price of equipment is not misleading simply because it does not include the cost of consumables . Similarly, an advertiser who compares the price of its products with those of its competitors is not required to state that its prices have been lowered for the purposes of the advertising campaign . Finally, to be penalized, the omission must concern the elements of the comparison. Thus, the fact that the advertisement of a telephone operator which is limited to comparing speeds omits to indicate the success rate of connections has no effect on the assessment of its misleading nature. .

 CA Paris, 23 October 1990, LawLex200300001363JBJ, upholding TGI Paris, 18 January 1989, LawLex200300001364JBJ.

 CA Versailles, 18 February 1999, LawLex200300001970JBJ.

 CA Paris, 6 December 2017, LawLex201700002072JBJ.

 CA  Versailles, 9 December 2004, LawLex200600001214JBJ, for a comparison of the prices of various models of printers.

 CA Bordeaux, 19 March 1992, LawLex200300001360JBJ.

CA Saint-Denis de la Réunion, 12 February 2020, LawLex202000000265JBJ.

 CA Paris, 26 June 2013, LawLex201300001055JBJ.

 Cass. com., 1 July 2008, LawLex200800001143JBJ, upholding CA Paris, 21 March 2007, LawLex200800000029JBJ.

 TGI Paris, 29 November 1999, LawLex200300001702JBJ: price per minute of communication to the United States presented as 70% cheaper, although the difference with the competitor was significantly lower.

 CA Bordeaux, 22 November 2000, LawLex200300001258JBJ.

 CA Colmar, 13 May 2008, LawLex200900000375JBJ.

 CA  Paris, 23 November 2007, LawLex201200001205JBJ.

Sampling consists of selecting consumer products in order to be able to compare the total cost according to the retail brands. The comparison does not relate to the price of products or services taken individually but to the general level of operators' prices, in order to infer an amount of savings that can be made by the consumer. Like any comparison technique, the selection of a sample of products must not be misleading or likely to mislead the consumer. In order to be valid, the comparison must therefore be made on products representative of the consumer's needs  and relate to a sufficient number of articles to enable generalization . The advertising must clearly indicate that the comparison was made on one sample only and not on all the advertiser's products . On the other hand, the choice of the assortment and number of products used by the advertiser in comparative advertising falls under the exercise of economic freedom , provided that it does not only select products whose prices are lower than those practiced by its competitors . An advertiser may validly exclude certain catchment areas from its study and select the products compared according to the generality of their presence in the store and not the size of the turnover they generate . The fact that the comparison focuses on a different number of products according to retailer does not render the message misleading where the difference can be explained according to whether or not the products concerned are present on the shelves and where it does not in itself distort the results obtained . Similarly, the fact that certain products referred to in the advertisement are present in several units in the assortment chosen does not affect the legality of the message .  

 CA Rennes, 26 February 1985, LawLex200300001366JBJ: sampling of products which represents only 19% of the household budget; TGI Chalon-sur-Saône, 24 June 1994, LawLex200300001358JBJ: sample free of any liquid and cleaning products; T. com. Paris, 28 September 2010, LawLex201200001223JBJ, sanctioning the assertion that the comparison had been made on essential everyday products, although no study had been carried out to define so-called essential products; CA Paris, 18 September 2013, LawLex201300001373JBJ: comparison not based on a sufficiently representative panel of commonly consumed products, but only on fourteen articles selected by the advertiser; CA Besançon, 26 January 2016, LawLex201600000331JBJ.

 CA Bourges, 6 March 1984, LawLex200300001367JBJ; Cass. crim., 22 December 1986, LawLex200300002643JBJ; CA Paris, 7 May 1999, LawLex200200000950JBJ; T. com. Paris, 7 June 2006, Lawlex20061372, sanctioning a comparison site presenting an overly limited sampling of products, then, validating the new version of the site due to its more exhaustive sampling, T. com. Paris, 29 March 2007, LawLex200700000409JBJ; CA Lyon, 5 June  2008, LawLex200900001221JBJ; CA Dijon, 26 March 2009, LawLex201200000726JBJ; CA Colmar, 12 June 2012, LawLex201200001032JBJ, upholding TGI Colmar, 9 February 2012, LawLex201200000492JBJ, study limited to 116 products out of more than 7,000 products sold in the advertiser's pharmacies; CA Rouen, 14 September 2017, LawLex201700001517JBJ;  cf. T. com. Bobigny, 16 November 2005, LawLex200600000760JBJ, holding that a comparison of forty or so references is objective.

 CA Poitiers, 12 June 2012, LawLex201200000995JBJ.

 CA Caen, 11 June 2015, LawLex201500000804JBJ. See CA Versailles, 9 December 2004, LawLex200600001214JBJ. See also, Cass. com., 12 April 2016, LawLex201600000818JBJ.

 CA Orléans, 10 July 2008, LawLex201200001018JBJ.

 T. com. Paris, 29 March 2007, LawLex200700000409JBJ.

 CA Paris, 22 November 2017, LawLex201700001942JBJ.

 CA Caen, 11 June 2015, LawLex201500000804JBJ.

French Consumer Law

296. Misleading omissions

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Les notions juridiques connexes

296. Misleading omissions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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