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

Comparative advertising is an advertising technique that consists of presenting the characteristics of a product, or some of them, in parallel with those of a competing product with the objective of highlighting a competitive advantage. Disseminated by professionals wishing to promote their products and services, comparative advertising differs from comparative tests, usually carried out by consum …

Lawfulness of comparative advertising

Comparative advertising is an advertising technique that consists of presenting the characteristics of a product, or some of them, in parallel with those of a competing product with the objective of highlighting a competitive advantage. Disseminated by professionals wishing to promote their products and services, comparative advertising differs from comparative tests, usually carried out by consumer associations or independent newspapers, which fall within the scope of journalistic information.

Without being expressly prohibited, comparative advertising has long been condemned by the courts as an act of disparagement constituting unfair competition, or which sanctioned it under the offense of use of a trademark without the authorization of the holder, irrespective of any discussion on the veracity of the claims . The judges progressively relaxed their position during the 1980s until they admitted the lawfulness of comparative advertising, provided that it was not misleading, that it was limited to a comparison of prices, that the comparison was made on identical products offered under the same conditions of sale and that the conditions of comparison was not open to challenge. Thus, a judgment of 19 October 1983 overturned a decision of the trial judges who had condemned a price comparison without specifying “whether the prices, under the same conditions of sale, applied to different products” . The Court of Cassation subsequently confirmed the validity of an advertisement “which is limited to the comparison of the prices at which identical products are sold under the same conditions by different traders, thereby contributing to transparency in a competitive market” .

Drawing the consequences of this development, Law No 92-60 of January 18, 1992  , whose provisions on comparative advertising were codified in 1993 in Articles L. 121-8 to L. 121-14 of the Consumer Code, authorized comparative advertising in Article 10, subject to strict conditions. As a promotional technique, comparative advertising had to make “an objective comparison”, which excluded opinion polls and other citations. The advertiser on whose behalf the advertisement was disseminated had to notify the competitor in advance of which products were the subject of the comparison. In reply, the latter could seek an interim injunction to prohibit the dissemination of the advertisement, if it did not meet the conditions laid down by the legislator. On the other hand, the law definitively abandoned the old case law which equated comparative advertising with an act of unfair competition. The law also allowed the mention, in advertising, of the competitor's trademark, without its consent .

At the European level, comparative advertising was regulated by Directive No 97/55 of 6 October 1997  which amended Directive No 84/450 of 10 September 1984 on misleading advertising to include specific provisions. The text harmonized the rules of comparative advertising in Europe, in order to prevent its development from being hampered by overly stringent national regulations. The European authorities have shown themselves to be in favor of comparative advertising, which they see as a means of stimulating competition between suppliers of goods and services in the interest of consumers , and to ensure the proper functioning of the internal market . This is why the 1997 Directive opted for maximum harmonization and precludes the application of stricter national provisions on the protection of the recipient of advertising with regard to both the form and content of the comparison .

The 1997 Directive was transposed by Ordinance No 2001-747 of 23 August 2001 . The text, which amended Articles L. 121-8, L. 121-9, L. 121-10 and L. 121-12 of the Consumer Code, defined comparative advertising as “any advertising that compares goods or services by identifying, implicitly or explicitly, a competitor or goods or services offered by a competitor”. The scope of comparative advertising has thus been extended to advertisements allowing the identification, even implicit, of a competitor or its goods and services. The legislator also had to modify the conditions under which the comparison can be made. Under the Law of 1992, the comparison was limited to strictly identical products. According to the new wording of Article L. 121-8, the comparison may relate to goods or services “meeting the same needs or with the same objective” and the message should not be misleading or likely to mislead, but “objectively compare one or more essential, relevant, verifiable and representative characteristics of those goods or services, the price of which may be included”. The French legislator also had to abandon the obligation imposed on the advertiser to communicate, before any dissemination, a comparative advertisement to the competitors concerned. However, the advertiser must be able to provide, at short notice, proof of the material accuracy of the terms of the comparative advertisement . The Consumer Code does not contain penal sanctions for unlawful comparative advertising, whereas the Directive of October 6, 1997 requires Member States to ensure “that adequate and effective means exist [...] for the compliance with the provisions on comparative advertising in the interests of consumers as well as competitors and the general public” . Article L. 121-14 simply refers to the penalties applicable to the unlawful use of trademarks  and those provided for in Articles L. 121-1 to L. 121-7 (current Articles L. 121-2 et seq. and L. 132-6 et seq.) of the Consumer Code.

Following the adoption of Directive No 2005/29 of 11 May 2005 on unfair business-to-consumer commercial practices , the Commission repealed Directive No 84/450 and codified the provisions on misleading advertising and unlawful comparative advertising regarding professionals and competitors in Directive No 2006/114 of 12 December 2006 . Directive No 2006/114 draws the consequences of the reform of advertising law in the Union by providing in Article 4 (a), on comparative advertising, that the condition of absence of a misleading nature is assessed in the light of Articles 6 and 7 of Directive No 2005/29 on misleading commercial practices . In order to align the French law with that of Directive No 2006/114, of maximum harmonization with regard to comparative advertising , Law 2011-525 of May 17, 2011 amended Article L. 121-8 of the Consumer Code by deleting the last paragraph which imposed on the advertiser, although such a condition is not provided for by Union law, to mention the duration of the offer when it is limited in time. Finally, Re-codification Ordinance No 2016-301 of 14 March 2016 moved the provisions relating to comparative advertising, after those relating to prohibited commercial practices, to a chapter devoted to regulated commercial practices. Articles L. 121-8 et seq. therefore become Articles L. 122-1 et seq., with the exception of the penalties of the first paragraph of Article L. 121-14, moved to a Title III, in Article L. 132-25.

 CA Paris, 7 June 1973, D. 1973, J., 619; Cass. com., 5 October 1982, D. 1983, I.R. 210; JCP G, 1982, IV, 369.

 Cass. com., 19 October 1983, LawLex201500001169JBJ, JCP 1983, IV, 356, where the Court of Cassation appears to implicitly recognize the lawfulness of price comparisons when comparing identical products sold under the same conditions by different traders.

 Former Article L. 121-12 (current Article L. 122-5) "Without prejudice to the provisions of Article L. 121-2, the advertiser on whose behalf comparative advertising is disseminated must be able to prove at short notice the material accuracy of the statements, indications and presentations contained in the advertising".

 Intellectual Property Code, Articles L. 716-9 and L. 716-12.

 Article 4 (a): "Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met: (a) it is not misleading within the meaning of Articles 2(b), 3 and 8(1) of this Directive or Articles 6 and 7 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market ('Unfair Commercial Practices Directive')".

 Directive No 2006/114, Article 8, paragraph 1, subparagraph 2.

 Cass. com., 22 July 1986, LawLex200300002642JBJ.

 Law No 92-60 of 18 January 1992 strengthening consumer protection.

 See Cons. constit., 15 January 1992 (OJ, 18 January 1992), validating the possibility of using the trademark of the competitor in the context of comparative advertising, considering that the resulting restriction of property rights was part of a "general mechanism of a general interest purpose", intended to "improve consumer information and stimulate competition in accordance with clearly established rules".

 See Directive No 97/55, Recital 6: "The completion of the internal market means a wide range of choice.  Given that consumers and traders can and must make the best possible use of the internal market, and that advertising is a very important means of creating genuine outlets for all goods and services throughout the Community, the basic provisions governing the form and content of comparative advertising should be uniform and the conditions of the use of comparative advertising in the Member States should be harmonised.  If these conditions are met, this will help demonstrate objectively the merits of the various comparable products. Comparative advertising can also stimulate competition between suppliers of goods and services to the consumer's advantage.

 Case C-44/01 Pippig Augenoptik GmbH & Co. KG, Judgment of 8 April 2003, LawLex200900000827JBJ.

French Consumer Law

270. Lawfulness of comparative advertising

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270. Lawfulness of comparative advertising

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