In January 2016, the French Health System Modernization Act was adopted, providing in particular for several measures in order to prevent eating disorders amongst teenagers. Such measures include the obligation for models to provide a medical certificate confirming that they are fit to model, in particular with regard to their weight. Another key measure is the obligation to disclose retouching of commercial photographs. The decree implementing this disclosure obligation was issued on 5 May 2017 (the "Decree") and came into force on 1 October 2017, thus impacting companies in the fashion and cosmetic business.

In January 2016, the French Health System Modernization Act was adopted, providing in particular for several measures in order to prevent eating disorders amongst teenagers3. Such measures include the obligation for models to provide a medical certificate confirming that they are fit to model, in particular with regard to their weight. Another key measure is the obligation to disclose retouching of commercial photographs. The decree implementing this disclosure obligation was issued on 5 May 20174 (the "Decree") and came into force on 1 October 2017, thus impacting companies in the fashion and cosmetic business.

Which advertisements are concerned?

The obligation to label photographs as "retouched" applies to photographs of models whose body appearance has been thickened or refined by image processing software.

The obligation concerns photographs which are to be used in France for commercial purposes (i.e. photographs used for editorial purposes, for a magazine cover for example, do not need to be labelled as "retouched"). Retouching must be disclosed for advertisements in the press, on the internet, on billboards and on printed advertisements, whether for the public or sent to individuals.

What does the disclosing obligation entail?

The commercial photographs referred to above which are subject to the Decree must be labelled as "photographie retouchée", i.e. "retouched photograph". The Decree specifies that the label must be easily accessible and readable, and clearly distinguished from the advertising message.

Fashion and cosmetics companies shall be held accountable...

The Decree provides that the entity which is responsible for complying with the obligation to disclose the retouching of photographs is the "advertiser", that is the company which advertises its products. Therefore, fashion and cosmetics companies are directly concerned, but all companies that feature models in their advertisements have to ensure compliance with the new rule.

...and face a €37,500 fine and up in case of non-compliance

Failure to comply with the obligation to disclose retouching of photographs is punishable by a €37,500 fine. The Decree further provides that the amount of this fine may be increased up to 30% of the company's advertising expenditures!

Tougher laws that inspire luxury companies to act to protect models and raise awareness on body image French luxury groups LVMH and Kering have on 6 September issued a voluntary code of conduct on the working conditions of models which goes even further than the statutory provisions. For instance, while French law now requires models to provide a medical certificate dating from less than two years to be able to work, the code of conduct provides that models must present a medical certificate attesting to their good health, obtained less than six months before fashion shoots or shows. Furthermore, sizes under 34 (UK 6) and models under 16 years old are now banned from the brands of these two groups, which include Gucci, Saint-Laurent, Dior and Vuitton amongst others.

Kering's CEO has declared that he hopes this code of conduct will help encourage other players in the fashion industry to take similar commitments.