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

Apart from the manufacturing or design defect, the defectiveness may result from the lack  or insufficiency of information, or warning against the dangers of the product . Thus, a product is defective when its directly accessible visual presentation does not meet the safety requirements of Article 1245 of the Civil Code for the average user . A jet ski, because of its presentation, does not offer  …

Inadequate presentation/information

Apart from the manufacturing or design defect, the defectiveness may result from the lack  or insufficiency of information, or warning against the dangers of the product . Thus, a product is defective when its directly accessible visual presentation does not meet the safety requirements of Article 1245 of the Civil Code for the average user . A jet ski, because of its presentation, does not offer the safety which can be legitimately expected when its handlebar does not have a label recalling the need to wear protective clothing . The product can also be defective, when it combines a design defect and deficient information . The manufacturing companies that delivered a bare-hulled boat without providing the assembly recommendations or instructions, the absence of which led to the undertaking of the work that caused the boat to explode, provided a product that did not offer the level of safety that could legitimately be expected .

The level of information given to the user must be adapted to the dangerousness of the product . The lack of information on the particular potential danger of a product is sufficient to characterize its defectiveness: the fun and attractive presentation of a delicatessen product in the form of marbles in a cardboard box similar to an ice cream tub and in vivid colors, which does not draw the attention of consumers to the known and serious risk of suffocation or choking if swallowed by small children, is sufficient to characterize its lack of safety . A highly flammable product calls for special precautions on the part of the producer, both for its packaging and for the prior information of the user . A product is defective when its labelling does not comply with the regulations by not indicating the risks associated with its inhalation or the need to wear protective respiratory equipment for certain tasks . Similarly, the swimming pool filtration apparatus whose operating instructions contain a series of safety warnings, without, however, drawing attention to the fact that it should be kept out of the reach of children, does not offer the safety which can legitimately be expected, when the casing intended to protect the user against the risk of being injured by the operation of the fan is designed in such a way that it allows a small finger to pass through the protective grid . On the other hand, the manufacturer of a hair color has taken the necessary and sufficient precautions to ensure the safety that the consumer can legitimately expect, when the instructions for the product contain perfectly clear and unambiguous information, which warns the user that it is advisable to carry out a test by applying the color to a small area of skin 48 hours before applying it to the hair . In addition, precautions for use and warnings shown on the product labeling should be immediately noticeable by a reasonably careful and well-informed user . Case law is particularly attentive to the means used by the professional to inform the user. The information supplied by the producer is insufficient to ensure the safety of non-professional users when the information concerning the danger and the precautions to be taken when using a product that is intrinsically dangerous are shown on the back of the delivery note, within the GTC  or are written in a foreign language . Likewise, the mere indication in the user guide of the device relied on by the manufacturer that the speed must not be greater than 4 when the whisk is attached to the device does not exonerate the manufacturer from liability for defective products insofar as there is no security function to prevent its operation or to prevent the ejection of the whisk when the machine is operating at high speed .

The courts are even more demanding in the case of health-care products. According to the Court of Cassation, the danger of such a product must be assessed not only in the light of the circumstances and in particular its presentation, the use the public may reasonably expect of it, when it was put into circulation, but also the severity of the harmful effects noted , both when it is put on the market and when it was prescribed to the victim . The description of a specialized drug in the patient information leaflet does not offer the level of safety which can legitimately be expected, when it does not contain, among its potential adverse effects, the teratogenic risk, insofar as the information concerning special antenatal monitoring  did not meet the expected level of information . A product must be regarded as defective when it causes damage whereas accordingly to the information currently shown on the presentation of the product, users were entitled to expect complete safety , even if the medical literature already mentioned the risk of undesirable effects . The courts proceeds in abstracto . They assess the defectiveness of a product by balancing the expected benefits with the risks of side effects that it presents. According to the Court of Cassation, Aspegic is not defective, even if its package insert does not include a mention of Lyell's syndrome, as long as it indicates a risk of potentially serious allergic reactions and despite its undesirable effects, the benefit-risk balance remains positive . The assessment of the medicinal risk depends on the information given to users on the possible risks of the product compared to the scientific data at the time of its marketing after obtaining the marketing authorization (MA) . A medicinal product is not defective within the meaning of Article 1245-3 of the Civil Code if it meets a reasonable expectation of the user in view of the severity of the affection suffered, the expected improvement and risks involved in the treatment . Case law considers that a reversal of the risk-benefit ratio of a medicine may characterize its defect . However, the Court of Cassation recently stated that “the finding by the judge of the defect of a product, following the identification of serious risks connected with its use, which does not justify the expected benefit, does not presuppose that the producer was aware of these risks when the product was put into circulation or prescribed” . 

  Cass. 1re civ., 21 June 2005, LawLex200600001041JBJ: a court of appeal cannot dismiss the applicant's action for damages against the manufacturer of a veterinary drug that was administered to exotic cranes whose preservation he was in charge of, thus causing their death, on the grounds that the marketing authorization of the product at issue expressly limited the therapeutic indication to reared birds and required the mention, on the packaging, recipient and prospectus, of an issuance on prescription, without ascertaining whether the absence of this information on the primary packaging of the medicinal product affected the safety which the user could legitimately expect.

 CA  Douai, 24 February 2011, LawLex201200001566JBJ, for a crop tractor that was defective due to its notice, which did not indicate the need, after each assembly process, to check that the locking bar is correctly adjusted on the work tool; 5 September 2019, LawLex201900001063JBJ, for a desk with a tempered glass plate that spontaneously exploded even though its presentation did not include any recommendation for a specific use, nor any particular warning about the possibility of an explosion due to overloading or impact, whereas the reasonably expected use of a professional desk, even one with a tempered glass work surface, inevitably includes placing documents and office equipment on it.

  CA Aix-en-Provence, 7 November 2012, LawLex201600000569JBJ.

CA Dijon, 29 March 2022, LawLex202200001934JBJ.

 CA Paris, 21 November 2005,  LawLex200500010131JBJ.

  CA Agen, 4 January 2011, LawLex201200001814JBJ.

  CA Grenoble, 10 January 2012, LawLex201200001801JBJ: a manufacturer of hot water bottles does not issue sufficient information when its product has no information in English on the risk that can be caused by filling it with water which is too hot.

CA Lyon, 26 September 2018, LawLex201800000991JBJ.

  Cass. 1re civ., 5 April 2005, LawLex200500006006JBJ; CA Versailles, 15 November 2007, LawLex201200001859JBJ.

  Cass. 1re civ., 19 March 2009, LawLex201200001527JBJ; 24 January 2006, LawLex200600001109JBJ: a medicine does not offer the safety that can be legitimately expected when on the date of its prescription, Annex II of the marketing authorization, which corresponds to the information contained in the leaflet, made no reference to the risk of primary pulmonary arterial hypertension and Annex I, corresponding to the summary of its characteristics and available to the victim, only mentioned cases of hypertension reported in generally obese patients with no causal link with the taking of Isomeride.

 CA Orléans, 20 November 2017, LawLex201700001965JBJ; upheld in par Cass. civ. 1re, 27 November 2019, LawLex201900001469JBJ: on the absence of information in the package insert of a drug intended for patients that, among its possible adverse effects, there is a particularly serious teratogenic risk of spina bifida; see also Cass. 1re civ, 29 March 2023, LawLex202300004825JBJ, holding that a drug, whose side effects mentioned in the summary of product characteristics and the Vidal medication guide include cases of diffuse interstitial and alveolar pneumopathy and organized bronchiolitis obliterans, which can develop into pulmonary fibrosis, but whose package insert only mentions “respiratory problems (shortness of breath, fever, cough)”, is defective, since this information is insufficient.

  CA Dijon, 17 April 2007, LawLex201200001649JBJ

CA Montpellier, 10 December 2019, LawLex201900001569JBJ, specifying that even if the safety data sheet of a coating, available on the internet, includes clear precautions for use and safety recommendations, the information relating to the risk of sensitivity of this product and the logo on its bag do not sufficiently alert the consumer to its potential danger due to the risk of skin burns, nor to the need to protect the whole body and to wash the skin with water in the event of contact; CA Riom, 9 September 2020, LawLex202000002200JBJ: paint that is labelled with information on the fact that it is a product with high emissions of volatile organic compounds with a risk of toxicity by inhalation, that repeated exposure can cause dryness or chapping of the skin, that it should only be used in well-ventilated areas and that it can trigger an allergic reaction, must be considered as defective insofar as this information is insufficient in its form - the information is printed in very small characters that are barely legible to the naked eye - and in its content - the notice does not recommend the wearing of a protective mask, nor does it allow the user to understand that the toxic emissions continue in the ambient air after the product has been applied and dried - and as the reference to its use in ventilated areas does not enable the user to conclude that it should be applied in places not frequented by people.

  Cass. 1re civ., 22 November 2007, LawLex201200001623JBJ

 CA Aix-en-Provence, 20 November 2013, LawLex201400000758JBJ

Cass. civ. 1re civ., 19 June 2019, LawLex201900000838JBJ.

 CA  Versailles, 15 November 2007, LawLex201200001859JBJ.

  CA Bourges, 29 January 2009, LawLex201200001884JBJ.

  CA Paris, 13 January 2012, LawLex201300000921JBJ; TGI Nanterre, 22 October 2015, LawLex201500001367JBJ.

  Cass. 1re civ., 25 February 2016, LawLex201600000539JBJ.

  CA Douai, 4 July 2013, LawLex201400001649JBJ.

 CA Nancy, 9 February 2009, LawLex201200001940JBJ: the safety defect of a bed is characterized when it is established that the degradation of the bed and subsequent fire were caused by the absence of a protective system on the general power cable, a lack of information on the positioning of this cable, and a failure to warn against the risk of shearing in the event of incorrect positioning; CA Toulouse, 9 December 2019, LawLex201900001572JBJ: a telescopic trekking pole with screw clamp which according to the legal expert contains a design or manufacturing fault linked to the geometry of the parts, their material and the coarseness of the surfaces in contact which makes the clamping of the connections sometimes impossible and which, despite a solid clamping, does not reliably fulfill the function for which it is intended, when the latter consists in supporting the user's weight, whereas it performs the function correctly if it consists in providing an additional walking aid, must be considered as defective in its design or manufacture as well as in the information provided at the time of sale when no instructions for use or document warning users against the risk of slipping under load or specifying the recommended tightening intensity was provided at the time of sale. 

Cass. 1re civ., 20 March 2024, LawLex202400002622JBJ.

  CA Nancy, 3 March 2008, LawLex201200001837JBJ, considering that a dangerous product requires special precautions on the part of the producer both for its packaging and for the prior information of the user on its highly flammable nature; Agen, 4 January 2011, LawLex201200001814JBJ

CA Toulouse, 20 May 2019, LawLex201900000693JBJ.

 CA  Nancy, 3 March 2008, LawLex201200001837JBJ.

Cass. 1st Ch. civ. 21 October 2020, LawLex202000002749JBJ, regarding a selective weedkiller for corn grain, seed and soybean fodder.

French Consumer Law

671. Inadequate presentation/information

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671. Inadequate presentation/information

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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