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. 413-1, 2 ° (former Article L. 213-3, 2 °) of the Consumer Code prohibits the display, offer for sale or sale of products for human or animal consumption or beverages or agricultural or natural products that are falsified, corrupt or toxic. The manager of a company which knowingly continues to market food supplements containing blue algae, after having received notification of the advers …

Offering for sale and sale of falsified products or able to be used for the purposes of falsification

Article L. 413-1, 2 ° (former Article L. 213-3, 2 °) of the Consumer Code prohibits the display, offer for sale or sale of products for human or animal consumption or beverages or agricultural or natural products that are falsified, corrupt or toxic. The manager of a company which knowingly continues to market food supplements containing blue algae, after having received notification of the adverse opinion of the Superior Council for Public Health concerning the use of this product, unfit for human or animal consumption , is guilty of the offense of selling a toxic foodstuff. According to the Court of Cassation, the offense of selling toxic foodstuffs must be assessed with regard to their harmfulness to living organisms, by seeking an intolerance linked to their intrinsic qualities or to their ingestion process .

Point 3° of Article L. 413-1 (former Article L. 213-3) also prohibits the display, offer for sale or sale of products, objects or apparatus capable of causing falsification whereas point 4° of the provision prohibits the incitement to use the same products by means of pamphlets, circulars, prospectuses, posters, announcements or any instructions whatsoever. The Court of Cassation has stated that the offense of selling products that can be used for the falsification of foodstuffs for human consumption does not require that the product used be prohibited itself at the time of its sale, but only that it can be used to carry out the falsification .

The concept of offering for sale is broadly understood and includes all acts intended to market the product, such as the holding of products in commercial premises  or in the refrigerator of a restaurant . The concept of display refers to putting the product before the eyes of potential buyers .

The intentional element of the offense of offering for sale and sale of falsified products or products that can be used for the purposes of falsification implies, as in the case of deception, that the person responsible for their marketing has not, at least, carried out a strict control of the compliance of the products sold. As regards the sale of wine products, the offense is thus characterized with regard to the professional who has resold in France a batch of rectified concentrated must, purchased in Spain, without previously resorting to the only useful control method for detecting the presence of beet sugar, i.e. the analysis by nuclear magnetic resonance , especially when the wines offered for sale are derived from the use, in a non-authorized environment, of a technique prohibited by a European regulation .

Lastly, Article L. 451-2 (former Article L. 213-3, II) provides for an increase in the penalties incurred when the marketing relates to a falsified or corrupt substance which is detrimental to human or animal health, or when the facts were committed by an organized gang. The offense is constituted even if the harmful falsification is known to the buyer or the consumer .

 Cass. crim., 4 February 1998, LawLex200400001143JBJ.

 Cass. crim., 7 October 2003, LawLex200600001525JBJ.

 Cass. crim., 22 March 1990, LawLex200600001448JBJ.

 Cass. crim., 16 June 1970, LawLex200600001583JBJ.

 Cass. crim., 8 January 1979, LawLex200600001598JBJ.

 Cass. crim., 24 January 1994, LawLex200400001152JBJ: an auction director is guilty of the offense of displaying falsified, corrupt or toxic foodstuffs if, during the auctions organized by the hall, fish are displayed on a conveyor belt before the fishmongers who, seated on tiers, make their purchase by computerized means. 

 Cass. crim., 17 September 2002, LawLex200300003484JBJ.

 Cass. crim., 4 March 2014, LawLex201400000659JBJ.

 Consumer Code, Article L. 413-1 in fine (former Article L. 213-3,   III).

Article L. 413-2 (former Article L. 213-4) of the Consumer Code prohibits the holding, without legitimate reasons, in the places listed, i)  of inaccurate devices for weighing or measuring goods, ii) adulterated, corrupted or toxic foodstuffs or products, iii) products, objects or devices that can be used for the falsification of products. Those responsible are liable to heavier penalties if the adulterated or corrupted food is harmful to human or animal health . The offense is committed only if the perpetrator physically holds the goods or devices, even through an intermediary . Thus, the offense of stocking adulterated or corrupted food is characterized when the defendant has kept foodstuffs that are past their use-by date  or which are clearly unfit for consumption , or has stored corrupted margarine in its unsanitary premises with no refrigeration system .

The moral element is easier to establish in the case of the stocking of products that can be used for the purposes of falsification than for the other prohibitions. Thus, the presence in the premises of a wine-grower of 145 bags of sugar, acquired without an invoice, transported to his holding with no transport document, and which have not been mentioned in the stock statement, can only be explained by the intention to carry out clandestine chaptalization operations .

In order to demonstrate the intention to commit the offense of the holding of adulterated, corrupted or toxic foodstuffs, the Court of Cassation first held that it was sufficient that the perpetrator had committed the act provided for by the law, without the need to establish his intention . The solution might seem questionable, even for an offense punished less severely than those provided for in Article L. 413-1 (former L. 213-3) . The Court then overturned its case law: it considered that the fact that a professional does not ensure the quality of the goods held characterizes the intentional element of the offense of holding corrupted foodstuffs . Thus, the manager of a cured meats factory is guilty of holding corrupted or toxic materials when over 300 kilograms of corrupted beef fat with no label to identify its non-conformity was discovered in the premises adjoining those of the production of meat-based products, when he at least had a duty of supervision which he failed to fulfil, exclusive of his good faith . The courts must determine whether the accused knew of the condition of the goods held . The mere holding in a storage place, without legitimate reason, of corrupted foodstuffs may be sufficient to establish the infringement, even if the corrupted materials are not intended for the manufacture of finished products .

  Cass. crim., 21 January 2003, LawLex200600001617JBJ: this increased penalty is not applicable to the holding of products, objects or devices that can be used for the purposes of falsification, but only to the holding of an adulterated foodstuff, when it is also harmful to human or animal health.

  Cass. crim., 22 August 1995, LawLex200400001141JBJ: the offense of holding adulterated beverages is constituted if the defendant held through an intermediary, in the vats he rents or uses, a falsified wine intended for resale.

  Cass. crim., 25 October 1995, LawLex200400000145JBJ, considering that the offense of the unlawful detention without just reason of adulterated foodstuffs is constituted against the trader in dairy products having stored in its unsanitary premises with no refrigeration system stocks of spoiled margarine and who, aware of the condition of the goods he held, did not proceed with their removal, in violation of a prefectural order.

  Cass. crim., 1 September 2015, LawLex201600000100JBJ.

  Cass. crim., 26 January 1994, LawLex200400001540JBJ.

  Cass. crim., 12 December 1991, LawLex200600001659JBJ, meat.

 Cass. crim., 25 October 1995, LawLex200400000145JBJ.

 CA  Toulouse, 3 February 2000, LawLex200400000588JBJ.

  Cass. crim., 11 February 1987, LawLex200700000277JBJ.

  The offenses of falsification and those related to them, provided for in Article L. 413-1 (former Article L. 213-3), are liable to the same penalties as in the case of deception, while the offenses set out in Article L. 213-4 are specifically punishable by a fine of EUR 150,000 and one year's imprisonment.

 Cass. crim., 22 August 1995, LawLex200400001141JBJ; 1 September 2015, LawLex201600000100JBJ. See also CA Paris, 25 April 2007, LawLex200700001539JBJ.

French Consumer Law

570. Offering for sale and sale of falsified products or able to be used for the purposes of falsification

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570. Offering for sale and sale of falsified products or able to be used for the purposes of falsification

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Les décisions de justice citées dans ce paragraphe :

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