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. 441-1 (former Article L. 213-1) of the Consumer Code condemns the fact of misleading the contractual partner on the “composition or content in useful principles” of the goods. Few decisions refer to the concept of “content in useful principles”. In practice, courts tend to prefer the concepts of deception as to the composition or the substantive qualities of the product .
Deception as t …

Composition or content of product

Article L. 441-1 (former Article L. 213-1) of the Consumer Code exhaustively lists the characteristics to which the deception must relate to be reprehensible. First on the list are the nature and species of the merchandise sold. While the concept of species seems to refer to animal or plant species, the nature of the product is a broader concept and may, in practice, encompass or superimpose the species .

The sale of a product under a name that does not apply to it characterizes deception as to the nature of the thing. This is the case with the sale of food products , such as potatoes sold under the name of a different variety , a duck fillet sold as duck breast , Cantal cheese sold as Salers , a product called “rosette de Lyon pur porc label rouge”, although it is neither rosette, nor a labeled product  or the sale of a wine under a different vintage . Similarly, the fact of selling medicines under the name of food supplements  or selling a pet as belonging to a particular breed which it does not belong to , constitutes a deception on the nature of the thing. Finally, deception may result from the sale by a garage owner of a commercial vehicle as a passenger vehicle  or the concealment by the seller of an important transformation having affected the nature of the vehicle .

  CA Angers, 6 February 1992, LawLex200400001269JBJ: marketing of wood under the name "Canadian cherrywood" although this raw material is not included in the official nomenclature; CA Aix-en-Provence, 8 October 1997, LawLex200400001255JBJ: sale of Alaskan hake fillets under the name cod.

   CA Aix-en-Provence, 7 October 1999, LawLex200400000610JBJ: sale under the name "turbot fillets" of fish not corresponding to the "Psetta maxima" species;  CA Caen, 8 October 1997, LawLex200400001248JBJ: sea-caught mussels sold under the appellation "moules de Bouchot";  CA Rouen, 24 September 1998, LawLex200400001200JBJ: sale of simple rockfish at the price of sea bream.

   CA Pau, 20 March 1996, LawLex200400000926JBJ, transformation of a company car into a private 4-seater car.

  CA Nîmes, 9 May 1995, LawLex200400001165JBJ.

   CA Agen, 9 April 1997, LawLex200400001295JBJ.

  CA Montpellier, 23 September 2010, LawLex201200001755JBJ.

   CA Grenoble, 14 October 2008, LawLex201200001918JBJ.

   CA Aix-en-Provence, 6 February 2007, LawLex201200001282JBJ.

  CA  Angers, 29 November 2007, LawLex201200001938JBJ.

  CA  Poitiers, 24 November 1992, LawLex200400001444JBJ.

   CA Aix-en-Provence, 4 February 1998, LawLex200400000825JBJ.

Nature or type of product

After the nature and species, Article L. 441-1 (former Article L. 213-1) of the Consumer Code represses deception on the origin of the thing sold. According to the courts, the geographical origin of products constitutes a decisive factor in the choice of the consumer, who is entitled to fair information which can only result from labeling or from a catalog . It is sufficient to leave doubt as to the origin of a product  or to suggest that it originates from a given place when this is not the case . The trader who affixes the stamp of the town of Villedieu-les-Poêles, which is famous for the manufacture of copper soup tureens, while the products sold come from another region  or the manufacturer who uses, for cured meats, a denomination of sale suggesting that they come from Ardeche or Aveyron, although they are manufactured in Marseille  , is guilty of deception on the origin of the goods. Similarly, a sale of seeds under the name of a variety not listed in the official catalog of cultivated plants and which gives rise to confusion on the place of production, falls under the definition of the offense . Finally, the offense is especially constituted in the event of a lie  or a voluntary concealment of the origin of the product . This is the case when an importer sells on the French market “free range chicken eggs”, as being of farm production and supposed to have been laid in Brittany, although it is a mixture with battery eggs from Belgium .

The seller who provides incorrect information to its buyer as to the geographical origin of the goods sold or the ingredients of the finished product  commits the offense of deception on the origin. Thus, in the case of foodstuffs, it is not possible to sell foie gras under the indication “of Perigord origin”, if the manufacturer obtains supplies outside this territory , or truffles from China, suggesting that they originate from Perigord  or cheeses allegedly from the Vallée d'Aspe Béarn, which are actually bought in another region . The marketing of wine often leads to deception about the origin of the goods . This is the case of the sale of a wine under the name of a fictional castle and its presentation as the second wine of a prestigious castle , or under a name implying that it is an approved wine, i.e. aged in particular conditions of tradition and quality although it is a mixture of an approved wine and a table wine . Labeling oysters from foreign States as “produced in France” however, has not been condemned by the Court of Cassation, since Union law provides that the label must indicate the name of the State of production in which “the final development phase of the product took place”, and no text or practice defines the concept of “final development” or its minimum duration and the oysters had been kept for at least one month in pools in France .

The classification of deception as to the origin of the goods is not confined to the field of food. It was retained in respect of batteries allegedly originating from Japan, although they were from Hong Kong  , medicines , crystals presented as “hand cut” although they had been mechanically produced , down feather “from geese and ducks from Périgord” although it had actually been imported , puppies of Spanish origin sold as being of French origin  or kittens with no real traceability, as their tattoo number was false  or bronze sculptures presented as original pieces by Rodin or Bourdelle, although they were copies obtained by casting on old models .

  CA Limoges, 9 March 2007, LawLex201200001861JBJ: See also  CA Poitiers, 16 March 2007, LawLex201200001924JBJ, holding that the presence of the mention "Vin de Pays du Jardin de la France" on the label of a wine, written at the bottom of the bottle and in small print, does not provide information to consumers, whose attention is drawn by the information written in large print and who, in these conditions, are given confusing information.

  Cass. crim., 28 September 1999, LawLex200400000995JBJ: merchant miller who marketed not only his artisanal production but also, in larger quantities, oils from other Member States, offered for sale under a label showing, inside the stylized drawing of a mill, a coat of arms with a mill and an olive branch, and outside this drawing, in barely legible characters, the indication that "this olive oil" was "a selection of the best Mediterranean products".

  Cass. crim., 29 October 2002, LawLex200300001026JBJ: marketed under the indication of Perigourdine origin, although part of the manufacturer's supplies come from outside Périgord and there is no traceability system.

  CA  Bordeaux, 16 September 1997, LawLex200400001259JBJ: Chinese truffles sold at the price of Périgord truffles.

   CA Montpellier, 3 February 2011, LawLex201200001754JBJ.

   CA Angers, 25 May 2001, LawLex200300003754JBJ;  CA Poitiers, 16 March 2007, LawLex201200001924JBJ.

   CA Bordeaux, 12 June 2001, LawLex200400000677JBJ.

   CA Montpellier, 7 January 2010, LawLex201200001930JBJ.

  Cass. crim., 24 February 2009, LawLex201200001736JBJ.

  Cass. crim., 23 April 1992, LawLex200300003289JBJ.

  Cass. crim., 19 March 2008, LawLex201200001743JBJ, drugs fraudulently imported and rendered compliant to be distributed in France, although they did not include the French origin or the corresponding social security sticker.

  CA Colmar, 15 December 1999, LawLex200400000712JBJ.

  Cass. crim., 12 March 2002, LawLex200300003268JBJ, concerning a trade name implying that the advertiser is engaged in livestock farming in a specified region, although it is only engaged in the trading and slaughter of animals. See, however,  CA Caen, 26 February 2001, LawLex200300003816JBJ: the use of a trade name evoking a region of France in which the manufacturer is not established is not reprehensible, when the labeling of the product clearly mentions its origin.

  CA  Limoges, 9 March 2007, LawLex201200001861JBJ.

   CA Montpellier, 22 March 2012, LawLex201200001392JBJ.

  Cass. crim., 2 February 2016, LawLex201600000263JBJ.

  Cass. crim., 25 October 2016, LawLex201600001789JBJ.

   CA Caen, 23 April 1990, LawLex200400001094JBJ

   CA Aix-en-Provence, 4 September 1996, LawLex200400001260JBJ.

 Cass. crim., 24 February 2004, LawLex200400000945JBJ.

  Unlike the qualification of embezzlement which requires fraudulent maneuvers, the existence of lies is sufficient to establish the offense of deceit on the substantial qualities, Cass. crim., 25 October 2016, LawLex201600001789JBJ.

  Cass. crim., 24 February 1993, LawLex200400000507JBJ.

  CA Angers, 3 May 2005, LawLex200600001694JBJ, upheld by Cass. crim., 3 May 2006, LawLex200600001274JBJ.

   CA Grenoble, 28 March 1996, LawLex200400000845JBJ;  CA Pau, 9 June 1999, LawLex200400000711JBJ.

 Origin

Deception as to the substantive qualities is the most common type of deception.

The substantive qualities of goods are assessed by reference to the regulations to which they are subject , provided that they were in force at the time of the events  and have entered the contractual field . Thus, the placing on the market of a product that does not comply with the regulations fixing the composition of a product , with an official nomenclature , with a French  or European standard  or with a European regulation , characterizes the material element of the offense of deception, unless the buyer has entered into the sale in full knowledge of the facts .

The CE marking , created under the European technical harmonization legislation, guarantees the conformity of a product with the European requirements imposed on the manufacturer. Obtaining the CE marking is subject to the performance by the manufacturer of controls certifying the compliance of the product with the requirements laid down by the European directives which impose this marking. The CE marking gives products the right to freely circulate throughout the territory of the Union. The Court of Cassation has held that the fact of selling a product that does not comply with the CE marking constitutes the offense of deception . Although the marking establishes a presumption of conformity of the products which bear it, it ceases to exist when the safety defect is fully apparent .

The packaging of foodstuffs mentions a deadline beyond which a food may have lost its microbiological, organoleptic, physical or nutritive qualities, the use-by date (UBD), which sets a mandatory limit, which is distinguished from the best-before date (BBD). The freshness of foodstuffs constitutes a su quality of the products purchased. Accordingly, the repackaging of a product , its incorrect labeling  or its re-labeling , in order to extend its use-by date, or even the sale of out-of-date products , characterize the offense of deception.

Safety is obviously a substantive quality of goods. The fact of offering a dangerous product for sale characterizes, as such and even in the absence of a standard , the offense of deception . The deception will be all the more obvious when the goods are presented as being safe .

The production method characterizes a substantive quality of goods. Lying about the industrial manufacture of a product may suffice to establish the existence of deception. Presenting a terrine as “made by the chef” when it was industrially produced , presenting sea-caught mussels as cultivated mussels , selling apples having undergone an unauthorized treatment , concealing from the consumer the treatment undergone by tenderized meat , or flavoring Cognac by using an unlawful manipulation of alcohol characterize the offense of deception . Mentions, such as “farmer” or “organic”, have a very precise meaning for the consumer, beyond the sales pitch they constitute. Consequently, the fact of presenting eggs or cheeses as farm produce, even though they cannot claim this classification , or selling a product presented - although this is not the case - as the produce of organic farming, characterizes the offense of deception .

Lying about the existence of a guarantee may constitute deception, since it may be a means of encouraging purchases. This is the case when a travel agency maintains a display mentioning a financial guarantee, although it has been withdrawn .

Claims of deception as to the condition of the thing sold are often invoked before the courts. With regard to the sale of motor vehicles and in particlar second-hand vehicles, Article L. 441­1 (formerly 213-1) constitutes one of the main bases for claim in proceedings by buyers against sellers, whether professionals or, more rarely, private individuals . This high incidence of litigation can be explained by the multiple characteristics capable of being classified as substantive ("substantiel") on a vehicle.

The courts thus held that the fact of presenting a vehicle as new when it had already been registered , of mentioning on the order form a registration year that does not correspond to reality , or of selling a car without a registration certificate and the documents necessary for the administrative formalities , characterizes the offense of deception. A garage owner cannot claim that a vehicle is “first-hand” when it has been the subject of several sales  or has been used as a demonstration vehicle or a rental vehicle which has been driven by a number of persons . 

The courts also consider that it is misleading to conceal from the buyer an accident that the vehicle suffered before the sale . In this respect, the fact that major repairs were carried out on the vehicle prior to the sale in accordance with professional standards , in the same way as the fact that the technical inspection does not reveal any anomalies , were not considered to be of a nature to exonerate the accused from the charge of deception. Similarly, the non-disclosure or concealment of the age of a vehicle , especially if it endangers its passengers , may incur the seller's liability on the grounds of deception, unless the condition of the vehicle is not abnormal with regard to its mileage .

Finally, the inaccuracy of the mileage , like the manipulation  or replacement  of the odometer, are likely to characterize the offense of deception, unless the buyer was necessarily aware of it . The model of the vehicle , its power  or its year of manufacture  have also been considered as “substantive qualities”.  

  CA  Paris, 20 September 2000, LawLex200400000560JBJ: the Decree of 12 September 1989 only being applicable to toys, the non-compliance with its provisions of a plush bag, too large to be used by a child less than thirty-six months old, is not constitutive of deception; Aix-en-Provence, 9 May 2001, LawLex200400000544JBJ: a manufacturer cannot be accused of having deceived the consumer by marketing a product without marketing authorization, when it does not fall into the category of medicinal products, the one products covered by the rule.

  CA Grenoble, 5 September 1997, LawLex200400000862JBJ; 18 December 1997, LawLex200400000925JBJ; Cass. crim., 15 February 2000, LawLex200600001464JBJ: having noted that in the absence of transposition into domestic law of the optional provisions of Article 4(3) of Directive No 89/622 of 13 November  1989 - in force at the time - the offense of deception was characterized when a tobacco manufacturer decided on its own initiative to modify the text of the general health warning on cigarette packets, imposed by the legal and regulatory provisions, and to distort its meaning at the same time. 

  Cass. crim., 17 September 2002, LawLex200300003361JBJ: concerning electric garlands; 11 September 2018, LawLex201800001391JBJ: concerning breast implants filled with raw materials that do not comply with those specified in the technical documentation and the design dossier, and bearing the CE marking, which wrongly states that they comply with the quality system set up for their design, manufacture and their final control.

  CA Angers, 26 May 1998, LawLex200400000733JBJ.

  Cass. crim., 26 February 2002, LawLex200300003319JBJ;  CA Agen, 10 December 1998, LawLex200400001195JBJ;  CA Douai, 20 January 2011, LawLex201200001568JBJ.

 See regarding eggs:  CA Metz, 10 October 1990, LawLex200400001064JBJ;  CA Rouen, 9 September 1996, LawLex200400000927JBJ. See, however,  CA Grenoble, 1 June 1995, LawLex200400001280JBJ.

   CA Douai, 10 October 2002, LawLex200400000313JBJ; Cass. crim., 30 May 2006, LawLex200700000126JBJ;  CA Grenoble, 14 October 2008, LawLex201200001918JBJ.

   CA Limoges, 6 January 1993, LawLex200400001351JBJ, photographic films;  CA Grenoble, 11 October 1995, LawLex200400001276JBJ; CA Paris, 17 September 1998, LawLex200400001103JBJ, turkeys;  CA Rouen, 18 November 1999, LawLex200400000713JBJ, dishes served in the restaurant, some of which have passed their best-before date.

  CA Paris, 26 June 2006, LawLex201200001928JBJ.

   CA Paris, 2 December 1996, LawLex200400001047JBJ; 3 June 1998, LawLex200400001098JBJ, non-approved establishment; Cass. crim., 10 December 2002, LawLex200300001103JBJ, vehicle; 10 December 1996, LawLex200300003116JBJ: animals with obvious traces of anabolic treatments;  CA Grenoble, 18 October 2001, LawLex200300002509JBJ, mushrooms; Cass. crim., 6 April 2004, LawLex200400000972JBJ: toys;  CA Douai, 22 January 2004, LawLex200400001282JBJ, cow visibly infected with BSE;  CA Rouen, 28 September 2006, LawLex201200001937JBJ, medicated feed for animals;  CA Montpellier, 7 April 2011, LawLex201200001752JBJ: attempted deception on cattle likely to be affected by tuberculosis.

   CA Angers, 29 November 2007, LawLex201200001938JBJ, regarding toxic foods.

   CA Limoges, 23 November 1990, LawLex200400001074JBJ.

  CA  Bordeaux, 23 March 1993, LawLex200400001211JBJ.

  CA  Poitiers, 18 May 1995, LawLex200400001318JBJ.

   CA Angers, 5 June 1997, LawLex200400001219JBJ.

  CA  Paris, 23 April 1998, LawLex200400001068JBJ.

  Cass. crim., 17 November 2014, LawLex201400001282JBJ.

  CA Pau, 26 November 1991, LawLex200400001492JBJ, cheese;  CA Montpellier, 20 October 2009, LawLex201200001131JBJ; 3 February 2011, LawLex201200001754JBJ.

   CA Angers, 29 November 1990, LawLex200400001099JBJ, wheat sold as organic.

  CA Paris, 22 May 1990, LawLex200400001263JBJ.

 CA Angers, 26 June 1990, LawLex200400001096JBJ; CA Metz, 5 September 1991, LawLex200400001298JBJ; CA Grenoble, 14 May 1998, LawLex200400000642JBJ; Aix-en-Provence, 22 September 1998, LawLex200400000787JBJ.

  Cass. crim., 25 November 1986, LawLex200400000294JBJ.

  Cass. crim., 13 February 2007, LawLex201200001749JBJ.

  Cass. crim., 30 March 1994, LawLex200600000997JBJ.

  CA Pau, 6 August 2009, LawLex201200001769JBJ.

   CA Reims, 21 November 1991, LawLex200400001216JBJ.

   CA Limoges, 18 January 1991, LawLex200400001341JBJ;  CA Nîmes, 27 June 1997, LawLex200400000936JBJ.

  CA Metz, 2 June 1993, LawLex200400001299JBJ;  CA Aix-en-Provence, 28 March 2000, LawLex200400000565JBJ;  CA Rennes, 3 April 2003, LawLex200400000323JBJ;  CA Agen, 8 August 2007, LawLex200800001695JBJ;  CA Paris, 2 June 2009, LawLex201200001933JBJ. Contra:  CA Bordeaux, 24 September 1991, LawLex200400001274JBJ.

  CA Limoges, 20 December 1995, LawLex200400001350JBJ;  CA Agen, 28 March 1996, LawLex200400000987JBJ;  CA Rennes, 29 April 2003, LawLex200400000326JBJ; Cass. crim., 24 February 2004, LawLex200400000946JBJ. 

   CA Angers, 14 February 1991, LawLex200400001300JBJ.

  Cass. crim., 20 October 1987, LawLex200400000277JBJ;  CA Paris, 15 May 1996, LawLex200400001046JBJ;  CA Grenoble, 24 September 1997, LawLex200400000861JBJ; Cass. crim., 29 January 2001, LawLex200300003321JBJ.

   CA Pau, 19 June 1990, LawLex200400001073JBJ;  CA Limoges, 29 July 1993, LawLex200400001352JBJ.

  CA  Reims, 19 January 1990, LawLex200400001084JBJ.

   CA Bordeaux, 29 May 1996, LawLex200400001252JBJ;  CA Grenoble, 27 November 1996, LawLex200400000843JBJ; 3 February 2000, LawLex200400000568JBJ; Cass. crim., 18 May  1999, LawLex200400000990JBJ.

   CA Angers, 6 February 1992, LawLex200400001269JBJ.

   CA Orléans, 1 October 1990, LawLex200400001357JBJ;  CA Limoges, 7 June 1995, LawLex200400001345JBJ;  CA Aix-en-Provence, 30 June 1998, LawLex200400000822JBJ.

   CA Aix-en-Provence, 22 April 1999, LawLex200400000605JBJ, replacement of the meter non-disclosed to the buyer.

 CA  Papeete, 2 November 1995, LawLex200400001163JBJ;  CA Grenoble, 27 November 1996, LawLex200400000843JBJ.

   CA Paris, 12 November 1996, LawLex200400001181JBJ; Cass. crim., 1 April 2008, LawLex201200001717JBJ;  CA Pau, 7 May 2009, LawLex201200001771JBJ: the indication of the model is an essential element not only on the nature of the vehicle, but also on its origin.

 Cass. crim., 24 February 1993, LawLex200400000507JBJ; 24 October 2009, LawLex201200001735JBJ.

   CA Nancy, 29 September 1992, LawLex200400001343JBJ;  CA Papeete, 5 February 1998, LawLex200400000729JBJ;  CA Toulouse, 16 December 1999, LawLex200400000689JBJ;  CA Agen, 8 August 2007, LawLex200800001695JBJ:  Cf. Paris, 12 September 1990, No LawLex200400001246JBJ: the value of vintage cars is not affected by the year.

  CA Bordeaux, 18 February 1997, LawLex200400001253JBJ. 

   CA Paris, 4 July 2007, LawLex201200001914JBJ: the presence on a soft toy intended for children under the age of 36 months, of a small detachable element that can be swallowed, characterizes the non-conformity of the toy at issue with the EN 71.1 standard relating to the safety of toys.

  Cass. crim., 19 October 2004, LawLex200400002836JBJ, Community regulation on the use of indications concerning the farming method and origin of the eggs marketed.

 Cass. crim., 29 June 2010, LawLex201200001734JBJ.

  Currently for "European compliance", but originally for "European Community[ies]".

Substantive qualities

Article L. 441-1 (former Article L. 213-1) of the Consumer Code condemns the fact of misleading the contractual partner on the “composition or content in useful principles” of the goods. Few decisions refer to the concept of “content in useful principles”. In practice, courts tend to prefer the concepts of deception as to the composition or the substantive qualities of the product .

Deception as to the composition of the product may result from a difference between the seller's representations or the labeling and the actual content of the goods . The fact of changing the composition of a product without changing its technical specifications notice so that the delivered product does not correspond to the one allegedly sold, constitutes deception .

As regards foodstuffs, there are many examples concerning a wide variety of products: almond powder presented as pure, whereas the product is only 80% almond , meat with elements other than meat , potatoes with an erroneous glucose level , sugar qualified as “brown”, although it is refined white sugar that has been colored , ice cream made using a synthetic flavoring, contrary to what its presentation suggests  or wine substituted for the one supposed to be marketed . The offense of deception on the composition of the goods has also been characterized in the case of furnishing articles, such as furniture presented as solid wood  or cherry wood  or as being composed of calfskin leather , full grain calfskin leather  or buffalo leather , whereas this was not the case.

The deception may also result from the lack of conformity of the composition of the goods sold with a regulatory standard or with a professional practice: a manufacturer of cured meats therefore cannot use the word “truffle”, although in view of its composition, this denomination goes against the regulatory and ethical standards applicable to the profession .

   CA Pau, 23 March 1999, LawLex200300002609JBJ; CA Paris, 21 March 1990, LawLex200400001237JBJ, fat content of whole milk; 20 December 1990, LawLex200400001268JBJ: water content of margarine;  CA Montpellier, 7 December 2000, LawLex200400000587JBJ, content in curative products of wood.

 Cass. crim., 4 January 2017, LawLex201700000109JBJ: when it is not demonstrated that the manufacturer of the insecticide Gaucho had, in its application for approval, concealed or fraudulently altered data in order to obtain a marketing authorization for its product, and where, over the following years, as the application progressed, it responded to the successive requests of the Commission for the Study of Toxicity and no anomaly was observed in either the initial application for approval or the application for its renewal, the offense of deception is not established.

  Cass. crim., 7 July 1993, LawLex200400000283JBJ: a trader is guilty of deception by presenting a piece of furniture as being made from cherry wood, although only the façade structure is made of this wood.

  CA Angers, 8 October 1996, LawLex200400001044JBJ: the sale of furniture presented as calfskin leather, when this is not the case, constitutes deception.

   CA Paris, 26 February 1998, LawLex200400001097JBJ: the sale of furniture presented as full grain calfskin leather, although it is only highly buffed calfskin leather, constitutes deception.

   CA Angers, 10 April 1997, LawLex200400001261JBJ: selling a sofa presenting it as composed of buffalo leather although it is calfskin leather, without having verified this allegation, constitute the offense of deception.

  Cass. crim., 23 March 2004, LawLex200400000808JBJ. See also, for alcohols,  CA Bordeaux, 5 November 1996, LawLex200400001257JBJ: an importer commits the offense of deception by marketing an alcohol under the names Tequila or Mezcal, when it is not exclusively composed of agave musts and has been purchased in casks although Tequila or Mezcal are necessarily bottled at the place of production. See also on the composition of batteries, Cass. crim., 23 April 1992, LawLex200300003289JBJ.

 Cass. crim., 18 June 2013, LawLex201400000658JBJ.

   CA Paris, 11 September 1998, LawLex200400001089JBJ.

  Cass. crim., 4 February 2003, LawLex200300003342JBJ: an importer commits the offense of deception by offering for sale meat cannelloni without specifying that it contains bone fragments and textured vegetable proteins, although this information is decisive for the buyer;  CA Poitiers, February 19, 2004, LawLex200400001283JBJ: the inclusion in a preparation called "croquandines de veau" elements other than minced veal and vegetable proteins constitutes deception; Cass. crim., 30 November 2010, LawLex201200001733JBJ, product sold with the mention "100% chicken fillet";  CA Paris, 12 January 2011, LawLex201200001398JBJ, beef and veal;  CA Caen, 12 January 2011, LawLex201300000686JBJ, andouillette.

  Cass. crim., 20 March 2012, LawLex201200002340JBJ.

   CA Paris, 2 April 2007, LawLex201200001432JBJ.

  CA Douai, 3 May 2011, LawLex201200001853JBJ.

  Cass. crim., 13 January 2009, LawLex201200001738JBJ.

   CA Aix-en-Provence, 27 September 1995, LawLex200400001053JBJ: the sale of furniture presented as being in solid wood although they contain plastic elements or are composed of plywood panels constitutes deception on the substantial qualities.

Article L. 441-1, 2° (former Article L. 213-1, 2 °) of the Consumer Code prohibits deception “on the quantity of things delivered or on their identity”.

Deception as to the quantity of things delivered makes it possible, in particular, to sanction the deception against the contracting party with regards the weight of the goods sold.

In retailing, the mere fact of using unadjusted scales, which do not take account of the weight of the packaging during weighing, constitutes the offense of deception . Indeed, the courts have repeatedly stated that the purpose of the weighing operation is to determine the net weight of the goods sold, and not their gross weight . Deception is also characterized when the seller wraps its products so that the buyer cannot determine the weight of the packaging in relation to the total weight of the goods .

When the product is pre-packaged, indicating a weight lower than the actual weight, for example by indicating a net weight without specifying that it takes into account the weight of the water contained in the package , or indicating a weight on the label that is higher than the actual weight, characterizes the offense of deception , unless the law or professional practices tolerate a certain difference between the actual weight and the weight indicated. Thus, substituting any cheese mass for more than four tons of parmesan without changing the technical data sheet of the product constitutes a deception on the quantity of the goods .

Deception as to the identity means the “the delivery of a good other than the specified thing that was the subject of the contract”. The fact that, after having ordered them, of knowingly supplying foodstuffs whose designations are different from those resulting from the contractual obligations mentioned in the delivery note, characterizes the offense of deception . This offense may involve altering, modifying or removing the distinctive signs of the goods .

Marketing a wine under a name to which a controlled designation of origin (AOC) is attached, when it cannot claim this name, also characterizes the offense of deception on the identity of the goods . Thus, the commercialization of bottles of wine in a form whose appearance is such as to deceive buyers in view of the discrepancy between the reference “appellation Bourgogne contrôlée” indicated on the label and the blue capsule, representing the tax category for table wines, characterized the offense of deception, notwithstanding the alleged mistake by an employee, insofar as wine professionals are subject to strict rules relating to the identification of their products . This is the case, for example, when Savoie wine is added to local wines, meaning that this mixture between products of a different nature or origin results in a hybrid product, which no longer has the qualities recognized to a vintage or controlled designation of origin . In such a case, according to the Court of Cassation, the classifications of deception and usurpation of designations of origin do not present any incompatibility between them and may be applied concurrently . The same applies when the facts fall under both the texts governing misleading advertising and those governing deception .

  CA  Paris, 26 January 1998, LawLex200400001086JBJ.

  Cass. crim., 17 May 1989, LawLex200600001029JBJ; November 17, 1993, LawLex200400001438JBJ.

  Cass. crim., 6 February 1997, LawLex200600001527JBJ.

  Cass. crim., 16 January 2007, LawLex201200001750JBJ.

  Cass. crim., 7 March 2006, LawLex200600001077JBJ: deception consisting in buying from a trading company wine bottled in its cellars, before marketing it in large quantities under the words "bottled in the castle"; the Court ruled out the good faith of the professionals who had bottles and corks delivered, not to the castles, but to the cellars of said trading company, since the circulation documents showed the actual place of bottling. In this case, the mere display of the labels affixed to the bottles constitutes the offense of misleading advertising, that of deception, which is distinct, being constituted on the occasion of the sales actually made.

   CA Aix-en-Provence, 23 April 1998, LawLex200400001180JBJ.

  CA Paris, 28 April 1998 LawLex200400001087JBJ.

  Cass. crim., 1 December 2009, LawLex201200001714JBJ.

  Cass. crim., 18 June 2013, LawLex201400000658JBJ.

  Cass. crim., 18 December 2012, LawLex201300000604JBJ.

  This offense is characterized when the owner of a herd of cattle, an element of which, affected by bovine spongiform encephalopathy, had to be slaughtered, changes the ear tags of several animals to avoid the slaughter of his herd, see Cass. crim., 18 November 2003, LawLex200300004471JBJ.

   CA Bordeaux, 24 September 2002, LawLex200400000307JBJ: wine that is actually a table wine;  CA Aix-en-Provence, 3 October 2007, LawLex201200001821JBJ: rosé wines marketed under the AOC "Côtes de Provence" although they do not meet the required production conditions; Cass. crim., January 16, 2007, LawLex201200001750JBJ. See, however, Cass. crim., 27 May 2008, LawLex201200001742JBJ: the judge cannot convict the defendants for deception on the appellation of origin of a wine, on the grounds that a surplus of 47.51 hectoliters results from the comparison between the inventory of products contained in the vats and barrels and the production declaration made by the defendants, without verifying whether the controlled products were actually musts in the course of fermentation, the volume of which, after deduction of natural expansion, solids and lees and the permitted chaptalization, corresponded to the quantities declared;  CA Lyon, 15 May 2009, LawLex201200001770JBJ.

 Cass. crim., 7 November 2017, LawLex201700001947JBJ.

Quantity or identity of the things delivered

Deception as to the fitness for use of the product has only been punishable since Law No 78-23 of 10 January 1978. Thus, the placing on the market of electrical appliances imported from China which do not comply with French and European safety standards characterizes deception as to their fitness for use . The same applies to the sale of telephone devices without specifying that they are not approved , in the same way, for a professional CD publisher, as marking discs with a protection system without notifying the consumer , or CD-ROMs presented as containing twenty-five complete games, although they are only demonstrations . In the motor vehicle sector, the offense may be constituted by the non-delivery of the registration document , or by the sale of a vehicle whose general condition does not allow it to be used in adequate safety conditions . The organizer of an exclusive distribution network which supplies its distributors with alarm equipment that does not work properly , in the same way as the importer of personal stereos which, when placing them on the French market, does not verify the conformity of the information on the packaging with the actual capacity of the product marketed have also beeen found guilty of the offense of deception under Article L. 213-1, 3° .

 CA Paris, 15 May 2002, LawLex200300004449JBJ, upheld by Cass. crim., 26 November 2002, LawLex200300003359JBJ.

  CA Aix-en-Provence, 8 February 2000, LawLex200400000554JBJ.

  The intentional element of the offense of deception on the fitness for use of a product is characterized when the offender is awre of the fact that the thing does not have the quality it should have had, TGI Nanterre, 24 June 2003, LawLex200300002399JBJ, upheld by CA Versailles, 30 September 2004, LawLex200500005616JBJ, holding that the intentional element of the offense of deception is established as the music publisher had to inform the buyers in any event not only of the presence of the protection system on the product sold but also the risks of restriction on listening on all media due to this protection system, it being noted that the aptitude of a CD is indeed to be read on all media unless the buyer is expressly informed of the risk taken by purchasing this product.

  Cass. crim., 11 June 2003, LawLex200300002514JBJ.

  CA Paris, 29 September 1993, LawLex200400001307JBJ; CA Rennes, 20 June 2002, LawLex200400000325JBJ; 17 April 2003, LawLex200400000305JBJ.

  CA Paris, 7 July 1993, LawLex200400001305JBJ.

  CA Angers, 4 February 1993, LawLex200400001296JBJ.

  CA Paris, 28 October 1996, LawLex200400001188JBJ.

Fitness for use

Pursuant to Law No 78-23 of 10 January 1978, deception as to the risks inherent in the use of the product is intended to punish the endangerment of the contractual partner, for example by selling him a product which does not comply with the applicable safety standards.

Articles for children, such as nautical products which prove to be dangerous  or articles bearing the “CE” symbol, must guarantee the safety of the user. The courts are severe, considering that the presence of the CE symbol on products does not enable the person responsible for placing the product on the market to invoke his good faith, since he is personally responsible in that capacity for ensuring the conformity of the goods with the safety regulations . This applies not only to the importer  but also to the manufacturer  of the product.

Deception is constituted where an informed professional continues distributing a product that is prohibited because of the dangers it poses to human health , such as selling an out-of-date food product . This is also the case when the seller refrains from providing potential buyers with information on the safe use of vehicles .

  CA Paris, 19 September 1996, LawLex200400001203JBJ.

  Cass. crim., 7 April 1999, LawLex200400001267JBJ, strollers. See also for toys,  CA Angers, 26 May 1998, LawLex200400000733JBJ;  CA Paris, 2 December 1996, LawLex200400001047JBJ, for an industrial insect killer; 30 June 1997, LawLex200400001240JBJ, for irons; 23 October 2000, LawLex200400000566JBJ, for electrical scale-prevention devices.

 CA Paris, 30 June 1997, LawLex200400001240JBJ.

 CA Paris, 2 December 1996, LawLex200400001047JBJ; 23 October 2000, LawLex200400000566JBJ.

  CA  Angers, 12 July 1994, LawLex200400001267JBJ, a food supplement dangerous for human health. See also, Cass. crim., 2 February 2016, LawLex201600000362JBJ: the fact that a laboratory has applied for marketing authorization for the medicinal products it markets, arguing its effects on the metabolism of lipids and carbohydrates, without mentioning the antifungal properties and excluding its fenfluraminic nature and to persist in this fraudulent attitude throughout the lifetime of this medicinal product, meaning that this positioning definitely excluded that medicinal product from the prohibition decisions taken by the Administration against anorectic drugs and fenfluramines, is likely to constitute the offense of deception on the risks inherent in the use of this product with endangerment of human life.

  CA  Angers, 9 May 1995, LawLex200400001264JBJ.

   CA Grenoble, 11 September 2007, LawLex201200001912JBJ.

Risks inherent in the use of the product

Certain goods must, before being marketed, undergo controls that certify their conformity with the standards, regulations or safe use. Delivering false information about the controls undergone by a product , to mislead the consumer or carrying out insufficient controls , characterizes the offense of deception on the controls carried out . Thus, the production manager is guilty of aggravated deception where, from the outset, he knew that the gel used for the filling of breast implants was not the certified gel, but continued knowingly and voluntarily to have said implants manufactured, filled with an unapproved and untested gel whose effects on the health of patients are unknown, and while falsely presenting them as meeting the criteria for certification, participated in the concealment of the raw materials used in the manufacture of the gel during controls by the certifying body . Conversely, a large number of controls may be an element which makes it possible to set aside the grievance of deception. The Court of Cassation therefore ruled out the existence of deception on the checks carried out on foodstuffs affected by radioactivity after the explosion of the Chernobyl nuclear power plant in view of the large number of checks carried out - 5,000 samples and 1,500 additional checks  . 

 Cass. crim., 18 May 2005, LawLex200600002183JBJ: an expert who, although aware that his intervention is intended for the release of the vehicle for its resale, certifies in his report the repair of all elements concerning the safety of the vehicle in accordance with professional standards, although in reality, only a purely formal contract has been carried out.

  CA Paris, 22 October 2014, LawLex201400001177JBJ; Cass. crim., 26 June 2018, LawLex201800000996JBJ: the use of modified beef and veal unfit for human consumption in the manufacture of corned beef and the failure to ensure effective quality controls in the manufacture of that product, including through the sharing of responsibility of quality-related tasks and in the chain of production itself, from the reception of the meats to the cooking of it, justifies the imposition against the legal entity of a fine of EUR 80,000 and a fine of EUR 20,000 against the company director, as well as an additional order for publication of an extract from the judgment in the magazine Que Choisir for deception as to the substantive qualities and the checks carried out.

  CA Douai, 20 January 2011, LawLex201200001568JBJ, animal foodstuffs that could not be recognized as fit for consumption, due to lack of official controls and registration of the processing activity with the competent authorities. See also, regarding the provision of services, CA Aix-en-Provence, 6 December 2000, LawLex200400000552JBJ.

Cass. crim., 11 September 2018, LawLex201800001391JBJ.

Cass. crim., 20 November 2012, LawLex201300000354JBJ.

Controls 

Article L. 441-1 (former Article L. 213-1) of the Consumer Code does not mention price as one the elements to which the deception may relate. The principle of strict interpretation of criminal law thus precludes, in principle, the courts from sanctioning a defendant for deception as to the price  or value of the goods. The Court of Cassation considers that the sale or delivery of a product at a price higher than its actual value does not in itself constitute the offense of deception , contrary to the fact of charging for a part or device which is not actually supplied . The same applies to the charging of used parts as new parts . On the other hand, increasing the hourly cost of labor or charging for hours of labor already included in the maintenance contract does not fall within the scope of Article L. 213- 1 .

 CA  Paris, 2 December 1993, LawLex200400001572JBJ, concerning an advertising document mentioning the "tax inclusive, turkey" price without specifying that the vehicle exit costs were also charged.

 Cass. crim., 25 October 1990, LawLex200400001392JBJ.

 Cass. crim., 15 November 1990, LawLex200400000263JBJ.

 Cass. crim., 3 December 1997, LawLex201600000291JBJ; 6 February 2001, LawLex201600000288JBJ: computer equipment already used sold at the price of new equipment.

 CA Paris, 10 May 1991, LawLex200400001914JBJ.

French Consumer Law

547. Composition or content of product

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

547. Composition or content of product

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