Prohibited and controlled advertising in France

Prohibited and controlled advertising

What products and services may not be advertised?

The following may not be advertised:

• firearms, weapons and ammunition: the content of advertising for firearms is regulated. Only the name of the manufacturer or distributor, the technical specifications, the price and the sales conditions may be advertised and only in specific media; and
• tobacco products (cigarettes, cigars, snuff and pipe tobacco): any propaganda or advertising, direct or indirect, in favour of tobacco, tobacco products or ingredients is prohibited. Any form of commercial communication or advertising (ie, any act, whatever the purpose or the media, the effect of which is to remind the public of tobacco products or brands) is prohibited. The prohibition of indirect advertising is defined in the broadest way possible. Limited exceptions apply to tobacco advertising at certain motor sports events.

Are certain advertising methods prohibited?

Subliminal advertising is prohibited in France, on television in particular (article 10 of Decree No. 92-280).

Spamming is also regulated: the general principle is to obtain the prior consent of the recipient (opt-in) of commercial communication by email, SMS or facsimile (article L34-5 of the Postal and Electronic Communications Code).

What are the rules for advertising as regards minors and their protection?

Advertising dedicated to minors is strictly regulated in France, in particular by Decree No. 92-280 as regards advertising on television (article 7). Adverts must preserve their moral and physical integrity. Adverts must not invite children to convince their parents to purchase a product. Children must not be presented in a dangerous or harmful situation.

The ARPP also issued a recommendation addressing advertising to children. For instance, the advertising must not be likely to offend sensibilities, shock or cause provocation by disseminating images of children that violate their dignity or decency. The advertising must avoid scenes of moral or physical violence or abuse, whether direct or implied. Under no circumstances may the advertising, through its messages or its presentation, play down the significance of violence or abuse, or give the impression that such behaviour is acceptable.

Are there special rules for advertising credit or financial products?

Article L533-12 of the Monetary and Financial Code sets the strict criteria for adverts for consumer credit. For instance, the content must be accurate and not misleading. Aggressive practices are prohibited.

In 2014, the French authority governing the financial market issued guidelines (Recommendation No. 2014-05 of 8 July 2014) in order to provide for rules to ensure the clear advertising of financial products.

In particular, the adverts must comply with the following rules:

• adverts must contain the following information: information showing that the message is an advert, the identity of the advertiser, the nature of the product or the service promoted in the advert and the interest rate;
• adverts must state whether there is a promotional offer;
• the content of the message must be clear, audible and understandable;
• the advertiser must have a responsible behaviour and protect minors; and
• the risk and the results met in the past must be presented.

The ARPP also issued three recommendations addressing the following products and services:

• atypical investment and related services;
• financial products and agreements with leverage effect (trading on the Forex), stock index, raw material and binary options; and
• financial and investment products and services.

Are there special rules for claims made about therapeutic goods and services?

Advertising for medicinal products is permitted only for products that are not reliant on medical prescription and are not refundable by the compulsory health insurance (article L5122-6 of the Public Health Code).

Article L5122-2 of the Public Health Code provides that adverts for medicine must not be misleading or violate public health. The advert must objectively present the product and facilitate its proper use.

The advert must comply with the specific rules pertaining to the entry of the product on the market, as well as with the therapeutic strategy, as set by the Health Authority.

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

The Public Health Code provides that health messages should be added to advertising for manufactured food products and drinks on television, cinema, radio, in print media and on posters and marketing flyers for supermarket distribution.

The health message is not compulsory. If advertisers choose not to comply with this message requirement, they must pay 5 per cent of the cost of the promotional campaign to the national nutritional policy.

The following messages must be used:

• ‘for your health, eat at least five portions of fruit and vegetables per day’;
• ‘for your health, practice sport regularly’;
• ‘for your health, do not eat rich foods high in sugar or salt’; and
• ‘for your health, limit eating outside of meal times’.

Further, since 1 October 2017, the wording ‘retouched photograph’ has to be presented with commercial photographs of models whose body appearance has been refined or enhanced; this requirement is aimed at fighting anorexia and bulimia.

Moreover, in the ARPP recommendation on cosmetic products (amended version to be in force on 1 July 2019), there is a specific rule on slimming according to which, weight loss is the result of either illness or a specialised treatment or a change of diet. Therefore, in a claim concerning cosmetics, no reference can ever be made to the word slimming or to any derived terms.

What are the rules for advertising alcoholic beverages?

A drink is considered an alcoholic beverage if it has an alcoholic strength by volume of more than 1.2 per cent.

The direct or indirect propaganda or advertising in favour of alcoholic drinks is only allowed in limited cases as provided by the Public Health Code, which specifies (articles L3323-2 et seq):

• a limited list of permissible media (eg, in press for adults, certain categories of radio stations at specific times or on noticeboards or signs), which does not include television; and
• a limited list of information (eg, the degree of alcohol, the origin and components of the product, the name and the address of the manufacturer, the modalities of the sale and consumption of the product).

Propaganda or advertising in favour of an organism (firm, association or foundation), a service, an activity or a product other than an alcoholic drink that, by its graphics, presentation or any distinctive sign, reminds consumers of an alcoholic drink, is deemed ‘indirect propaganda or advertising’.

Finally, any sponsorship campaign that has, as its purpose or effect, the direct or indirect propaganda or advertising in favour of alcoholic drinks is forbidden.

Several amendments to the alcohol policy law, the Evin Law, have been carried out, notably to:

• extend the scope of authorised content (2005 amendment: reference to the geographic origin of a product has been added to the list of information that is allowed in alcohol adverts);
• take into account the existence of new media (2009 amendment: online communication services have been added as an authorised medium, under the following conditions: online alcohol adverts should not be intrusive (such as pop-ups) or interstitial and remain, in any case, prohibited on websites that are, by their character, presentation or purpose, mainly destined to young people); and
• promote French local production (2016 amendment: the content, images, presentations, descriptions, comments or references concerning a production region, toponymy, a geographical reference, local production, an itinerary, a production area, local knowledge, history, culture, food or landscape heritage, related to an alcoholic beverage, is not deemed an advert for an alcoholic beverage, and thus not prohibited).

What are the rules for advertising tobacco products?

Any propaganda or advertising, direct or indirect, in favour of tobacco, tobacco products or ingredients is prohibited; there is an exception for tobacco retailers. There is also an exception for the television broadcast of motor sports events filmed in a country where advertising of tobacco products is permitted (article L3512-4 of the Public Health Code).

A health message must be featured on all tobacco product packets (article L3512-22 of the Public Health Code).

Packets containing cigarettes, tobacco and cigarette papers must be neutral and standardised (article L3512-20 of the Public Health Code).

Are there special rules for advertising gambling?

Law No. 2010-476 of 12 May 2010 implemented a controlled opening up of the state monopoly on gambling and sports betting on the internet. The scope of the controlled opening is limited to the random games that require participants’ knowledge and that are less likely to induce addiction than games such as slot machines or other lotteries that offer a higher frequency of draws. Therefore, the games concerned by this Law are horse race betting, sports betting and poker games.

This Law also sets the rule applicable to advertising for betting and gambling activities and services (article 7).

Any commercial communication promoting a betting or gambling service must comply with the following rules:

• it must contain a health message preventing excessive gaming and referring to the informative and help assistance system, as implemented by the aforementioned law; and
• advertising of such is prohibited in publications, audiovisual communications and online communication services targeting minors, as well as in cinemas broadcasting films accessible to minors.

What are the rules for advertising lotteries?

Commercial operations based on chance are governed by different rules depending on whether they are offered to consumers or professionals.

When they are offered to consumers, they are licit per se (under articles L121-1 et seq of the Consumer Code: promotional lotteries), provided that they do not constitute unfair commercial practice. There is no specific rule addressing the advertising aspect of a game of chance.

When they are offered to professionals, they are regulated by articles L322-1 et seq of the French Interior Security Code, which prohibits commercial operations meeting the four following criteria (lotteries):

• a public offer;
• the hope of a gain;
• the element of chance (draw); and
• a payment or a financial sacrifice.

And, according to article L322-2-1 of the Interior Security Code, a financial sacrifice exists even when a reimbursement of a payment is offered to the participant.

Games of chance aimed at professionals are thus more strictly regulated in France than games of chance or commercial lotteries aimed at consumers.

What are the requirements for advertising and offering promotional contests?

There is no specific rule addressing the advertising aspect of promotional contests.

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

Under article 14-1 of Law No. 86-1067 of 30 September 1986, the Audiovisual High Council (CSA) is empowered to set the rules applicable to product placement.

In a Deliberation dated 16 February 2010, as amended on 24 July 2012, the CSA decided that product placement is only authorised for cinematographic works, audiovisual movies, fictional programmes and video clips. Otherwise, product placement is prohibited (eg, in television news). The following products cannot benefit from product placement: alcoholic beverages, tobacco products, medicines, weapons and infant formula.

Programmes that contain product placements must comply with the following rules (article 18 of Decree No. 92-280):

• the content and the date of broadcasting must not be influenced in such a way that the liability and editorial freedom of the editor are altered;
• they must not directly incite viewers to purchase or lease the products or services advertised and must not contain specific references to these products, services or trademarks; and
• the sponsorship must be identified as such at the beginning of, the end of, or during the programme. This identification can be achieved through the use of a logo or any other sign of the sponsor, in particular, with reference to the products or service, or through any other distinctive sign, provided that the reference to the sponsor is occasional and discreet (it must not be a slogan nor consist of the presentation of the product itself or its packaging).

In addition, when a sponsor finances a television game or contest, the offer of its products or services as prizes must not be accompanied by an advertising slogan.

Briefly give details of any other notable special advertising regimes.

The Toubon Law requires the use of the French language within the French territory, in documents destined to inform the public on goods or services such as offers, presentations, instructions for use, conditions of warranty, invoices and receipts (section 2).

A Circular dated 19 March 1996 specifies that this rule applies to the wording featured on labels and on the packaging of goods (section 2.1.1).

This Circular also provides that a translation into French of the foreign language is admitted if the French wording is as readable as the foreign language; but it is not compulsory that both wordings be featured with the same presentation and characters.