Misleading advertising practices in France

Misleading advertising

How is editorial content differentiated from advertising?

Law No. 2004-575 (the Digital Economy Law) of 21 June 2004, which addresses some specificities of activities carried out through the internet (liability of the service providers, the conclusion of online agreements, etc), provides general rules that are the same as those applied in the ‘real world’, such as the requirement to have the adverts, whatever the form (pop-ups, advert banners, etc), identified as such and therefore clearly distinguished from the non-commercial information (article 20).

The French Consumer Code also requires transparency: when an advertiser pays for content in the media to promote its product or service without clearly stating it in this content or through images or sounds clearly identifiable by the consumer, he or she can be deemed liable for the misleading advert or act of unfair competition (article L121-4-11° of the Consumer Code).

The ARPP issued a recommendation dedicated to digital adverts. This recommendation also contains annexes providing for more specific guidelines per type of advertising and marketing activities, such as the communication carried out by influencers (introduced in April 2017), native advertising, etc.

As a general rule, marketing communications and advertising should be clearly distinguishable as such, whatever their form. Identification of such can be achieved by any means whereby the consumer can clearly and immediately understand that the message is an advert.

How does your law distinguish between ‘puffery’ and advertising claims that require support?

Hyperbolic advertising is possible under French law. The judge assesses what the average consumer is able to understand and ensures that the same cannot be misled by the content of the advert. It is thus a matter of facts and interpretation.

Otherwise, the advertiser must be able to substantiate the claims related to the product or service.

What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?

Misleading advertisements are subject to sanctions. The sanction forms part of the broader infringement called misleading commercial practices, which is divided into two categories:

• misleading commercial practice resulting from a positive action: advertising must not create confusion with any product, trademark or trade name and must not include false information; and
• misleading commercial practice resulting from an omission (eg, not providing information that is essential for the recipient of the advertisement (in particular, the main characteristics of the product)).

The main sanctions are a two-year imprisonment and a fine of up to €300,000. This fine can also be set to an amount equivalent to 10 per cent of the average turnover of the advertiser over the previous three fiscal years (known at the date of the infringement), or to 50 per cent of the expenses incurred in creating the advert or in achieving the litigious practice.

Substantiation is required. The rules on misleading commercial practices apply to all advertising claims that cannot be substantiated by the advertiser. To that effect, footnotes are permissible but not imposed.

Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?

Under the general principle according to which the provision, in adverts, of false information is prohibited, advertisers must be able to substantiate any claim made in their advert. As a result, an advertiser must have proof of the claims before publishing or broadcasting the advertisement.

There is, however, no specific recognised standard that would provide guidelines on the way to substantiate the claims and that would list the necessary documentation to be gathered to that effect.

Are there specific requirements for advertising claims based on the results of surveys?

There is no specific requirement: general rules apply.

What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?

Comparative advertising is permitted in France provided that the following rules are complied with:

• the comparison must concern goods or services that cover the same need, or that have the same purpose;
• the comparison must be objective and exclude any reference to subjective criteria such as taste, smell or visual appearance;
• the comparative advertisement must objectively compare one or several essential, accurate, verifiable and main defining characteristics of the goods or the services (eg, the price);
• the comparative advertisement must not mislead, or attempt to mislead, the public;
• the comparative advertisement must not, without valid cause, take advantage of any goodwill in the trademark or name of the competitor;
• the comparative advertisement must not disparage the trademark, trade name or other distinctive brand of the competitor; and
• the comparative advertisement must not lead to confusion between the advertiser and their competitor.

Provided that the aforementioned rules are complied with, it is possible to refer to the name of a competitor in an advert.

Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?

There is no higher or special degree of type of proof per se but, from a practical standpoint, it will be easier to demonstrate that the advertiser has provided misleading content if he or she is not able to substantiate the claim and figures that have been advertised.

Are there special rules for advertising depicting or demonstrating product performance?

There is no specific requirement: general rules apply.

Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief or experience?

The ARPP issued a recommendation addressing the use of testimonials in adverts. An advertising claim, no matter the form, that uses testimonies or certifications of persons, whether or not the same are famous, must comply with the following rules: marketing communications should not contain, nor refer to, any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant.

Moreover, when advertising, no matter the form, uses certifications and testimonies from well-known persons whose expertise is not questionable and allows them to give authorised advice on the subject, the certifications must comply with these requirements:

• they must be based on product experiences that the person had him or herself (or under his or her supervision) in regular-use conditions; and
• the conditions in which the experience was gained and in which the results were found must be clearly indicated in a document drafted before the first publication of the advertisement.

Finally, in October 2018, the ARPP issued an amended version of the Recommendation dedicated to cosmetic products (to come into force on 1 July 2019). This Recommendation states, in particular, that when tests are mentioned in an advert, their nature must be clearly specified; that is, whether they are objective or clinical tests or consumer satisfaction tests.

Are there special rules for advertising guarantees?

According to the Consumer Code, advertising must not contain false information concerning the extent of the professional’s commitment, in particular, the replacement or repair of the product and the right of the consumer thereof.

In addition, the Consumer Code also considers as misleading the practice that creates the false impression that after-sales service in relation to a product is available in a member state other than the one in which the product is sold.

Finally, the seller’s conditions of sale must quote the rules applicable to the legal warranty when the product is sold to a consumer.

Are there special rules for claims about a product’s impact on the environment?

The general rule of the prohibition of misleading advertising applies. For instance, an advert stating that a trader (including his or her commercial practices) or a product has been approved, endorsed or authorised by a public or private body when it has not, or making such a claim without complying with the terms of the approval, endorsement or authorisation is deemed misleading.

Moreover, the ARPP’s recommendation pertaining to sustainable development provides for specific rules on this issue. For instance, the words or expression should not mislead the public as to the nature and the extent of the properties of the product or the actions of the advertiser in terms of sustainable development.

Where it is impossible to justify general statements (such as ecological, green, ethical, responsible, preserve, equitable, durable, etc) the advertising should nuance them by using wording such as ‘contribute to’.

In addition, advertising should not, directly or indirectly, incite excessive consumption behaviours or the wasting of energy or natural resources.

Moreover, the representation of motor vehicles outside public and private roads, in an off-road situation, is prohibited.

Are there special rules for describing something as free or a free trial or for special price or savings claims?

The offer of free products is not prohibited per se under French law. The offer of certain types of products for free (and therefore the corresponding advertisement) is, however, prohibited, such as offers for alcoholic beverages or drugs.

Sales with premiums are also legal per se under French law, except if a premium sale is deemed an unfair commercial practice under Directive 2005/29/EC which deals with unfair commercial practices in the internal market. A commercial practice is unfair if it is contrary to the requirements of professional diligence and it materially distorts, or is likely to materially distort, the economic behaviour, with regard to the product, of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.

Concerning the specific issue of ‘special price’, the following rules applicable to sales and price reductions will apply:

• Sales operations (soldes) under French law must concern products sold in a store that have been purchased as stock by that store at least one month earlier. This aims to accelerate the sale of any remaining stock. Sales operations remain authorised twice a year at dates specifically set by the French authorities (in January and in July, although the exact dates vary throughout the French territory) for a duration of six weeks. A draft bill aims at reducing the duration of the sales to four weeks.
• Any announcement of price reduction is legal provided that it is not an unfair commercial practice and complies with the Act dated 11 March 2015. Since that date, the calculation of the reference price no longer refers to any criteria, so that those used before the enactment of this Act (eg, the lowest price within the last 30 days, the recommended price, etc) are no longer compulsory. Thus the calculation of the reference price turns on the free interpretation or assessment of the seller, provided that the price reduction does not constitute an unfair commercial practice as prohibited by the Directive 2005/29 and implemented in the French Consumer Code under section L121-2. As a consequence, the sellers must be able to provide evidence of the reference price chosen to advertise price reductions (bills, recommendation from the manufacturer, or any other document used to assess the reference price).

Moreover, an order dated 12 December 2018 provides that, for a period of two years from 1 January 2019 (the experimental period), the accumulated promotional advantages concerning food products and pet food offered to a consumer for a specific product, must not exceed 34 per cent of the sale price, or an increase of the equivalent quantity sold. Moreover, these advantages offered by the reseller or the provider must concern products that do not represent more than 25 per cent of:

• the turnover set in the agreement concluded between the provider and the reseller;
• the amount of sales set in an agreement addressing the production of food products; and
• the anticipated amount pertaining to the agricultural perishable product or coming from short production cycles.

From a practical standpoint, this means that, for food products and pet food offered to a consumer, it is no longer possible, during this experimental period of two years, to offer one product for free upon the purchase of one product. However, the promotion offering one product for free upon the purchase of two products is still possible.

Finally general rules prohibiting misleading adverts apply. A commercial practice that consists of describing a product as gratis, free, without charge or at a special price or similar, if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item, is deemed misleading.

Are there special rules for claiming a product is new or improved?

The words ‘new’ or ‘improved’ must be used carefully, in order to avoid that the advert be deemed misleading.

According to the ARPP’s recommendation entitled ‘Vocabulary in Advertising’, the word ‘new’ (and similar wordings) can only be used when a real modification has been made (in particular, a modification of the product (eg, formulation or recipe), its instruction manual, its presentation or packaging). The use of the word ‘new’ should also be limited to a period of one year, according to these recommendations.

Are there special rules for claiming where a product is made (such as country of origin)?

The ‘CE’ marking was introduced pursuant to European technical harmonisation legislation.

It is mandatory for all products covered by one or more European directives that expressly provide for it and such marking guarantees free movement throughout the EU for these products. To be entitled to affix the CE marking to their products, manufacturers must conduct, or have conducted, controls and tests ensuring that the products comply with essential requirements, particularly those concerning health and safety, as set forth in the relevant directives.

CE marking is not a certification and it does not attest to the product’s geographical origin.

Being both mandatory and regulatory, it represents a manufacturer’s visible confirmation that its product complies with European legislation.

Whether a product manufactured in France or imported is subject to a CE marking obligation can be verified in the technical harmonisation directives or by referring to national measures transposing them.

These directives specify the scope of application for the relevant products and, where applicable, the excluded products. There are currently around 20 technical harmonisation directives providing for the affixing of CE marking relating to a huge range of products. Only the products mentioned in these directives are obliged to have the CE marking.

The ‘made in France’ label is compulsory for food products when the absence of this information can lead the consumer into confusion (for instance, a product called ‘Provencal spices’ with a French flag featured on the packaging but that does not come from France will have to bear its geographical origin) or for pre-packed meat (with the information pertaining to the breeding place and the point of slaughter).

Otherwise, the ‘made in France’ label is not compulsory. However, when the ‘made in France’ label is featured on the packaging of the product, the general rule of truthful and honest commercial claim applies, otherwise it will be deemed to be misleading advertising.