Legality of the trader's sales claims

In order to promote its products or services, the professional may in particular value their qualities, their compositions, their manufacturing methods or their effects. However, these commercial claims can be qualified as deceptive commercial practices.

Advertising is defined by European law as “ any form of communication made in the course of a commercial, industrial, craft or liberal activity for the purpose of promoting the supply of goods or services, including immovable property, rights and obligations”¹.

To be lawful, this advertising must comply with professional diligence in order to avoid any form of unfair competition on the one hand, but also to ensure that it does not harm consumer protection on the other hand.

To this end, Article L.121-2 of the Consumer Code punishes, under unfair commercial practices because they are misleading, the communications of the professional:

“When it is based on false or misleading claims, indications or representations relating to one or more of the following:

(a) The existence, availability or nature of the good or service;

b) The essential characteristics of the good or service, namely: its substantial qualities, its composition, its accessories, its origin, in particular with regard to the rules justifying the affixing of the words ” manufactured in France ” or ” origin France ” or any equivalent mention, sign or symbol, within the meaning of the Union Customs Code on the non-preferential origin of the products, its quantity, its method and its date of manufacture, the conditions of its use and its suitability for use, its properties and the expected results of its use, in particular its environmental impact, as well as the results and the main characteristics of the tests and controls carried out on the good or service; […]

e) The scope of the advertiser’s commitments, in particular with regard to the environment, the nature, process or reason for the sale or provision of services;

f) The identity, qualities, skills and rights of the professional “.

Article L. 121-4 of the same Code lists 28 commercial practices deemed to be misleading in all circumstances, including:

1 . Claiming to be a signatory to a code of conduct when the trader is not .

2 . Displaying a trust mark , quality mark or equivalent without having obtained the necessary authorisation .

3 . Claiming that a code of conduct has an endorsement from a public or other body which it does not have .

Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.

16. To falsely assert that a product or service is likely to cure diseases, malfunctions or malformations; […]

24° To include a French flag, a map of France or any symbol representative of France on food packaging when the primary ingredients […] are not of French origin.

By way of derogation from 24° of this article, primary ingredients whose French origin is difficult, or even impossible to guarantee, because they come from non-producing sectors in France or whose production is manifestly insufficient on the territory are excluded from the device.

28° To disseminate or have disseminated by another legal or natural person false opinions or false consumer recommendations or modify consumer opinions or recommendations in order to promote products “.

Thus, the trader must ensure that the claims he transmits to consumers about his products or services comply with the legal provisions governing the use of said claims but also presented with veracity and in a legible and understandable manner.

1. Environmental claims

In an era where sustainable consumption, environmental claims are promoted by professionals to promote their products or services.

Depending on their nature, environmental claims may be strictly prohibited or subject to compliance with certain conditions, by legislative or regulatory texts.

For example, It is forbidden to claim in an advertisement that a product or service is carbon neutral or to use any wording of equivalent meaning or scope, unless the advertiser makes the elements readily available to the public “demonstrating (Article L.111-1 of the Consumer Code).

However, some environmental claims are presented by the professional according to a voluntary ecological approach that he has adopted in his own activity.

To be lawful, the Ministry of Ecology specifies that the claim must be ” clear, proportionate, unambiguous and justified by precise and measurable elements. It must also be based on scientific evidence or recognized methods ». Otherwise, this practice will be misleading or likely to mislead the consumer. For example, in 2021, the consumer association had sued the company Nespresso because it considered that the claims of “100% recyclable” capsules were likely to mislead the consumer since the capsules could not be fully recycled in practice.

2. Claims based on the awarding of certifications or labels or compliance with charters or codes of conduct

The allegations may also relate to the award of a certification or a label to the professional or if the latter claims to be a signatory of a charter or a code of conduct. These claims certify that the products or services comply with certain characteristics and guarantees.

For example, the “Origine France Garantie” label can only be affixed following the submission of an application by a professional candidate, respecting pre-established specifications. An authorized certifying body will then award, if the conditions for award are met, the label in question.

In addition to the certifications and labels issued by certain third party bodies, the professional may also, in certain areas, self-assess his activity and determine whether or not, according to the legal conditions specific to an allegation, he can use it and use the related distinctive logo.

These include, for example, the words “homemade” and the logo.

This claim must meet the conditions set out in Articles L. 122-19 et seq. of the Consumer Code, which state that ” A ” homemade ” dish is made on site from raw products “, with the exception of certain products that the consumer does not expect the restaurateur to develop himself, such as bread, cheeses or condiments.

If the food professional considers that his activity meets the conditions laid down by the texts, he may himself affix this mention and/or this logo next to the dishes he offers in “homemade”.

3. Claims based on consumer reviews

Some claims are also intended to promote the product or service not so much on its intrinsic characteristics but on the positioning it occupies with consumers.

This is particularly the case for consumer reviews that allow professionals to promote their products or services via the feedback of customers who have previously acquired this product or service.

The publication and dissemination of notices online follows a regime of its own and which was newly instituted by Article L.111-7-2 of the Consumer Code and whose terms are determined by Articles D. 111-17 et seq. of this code. By these texts, it is imposed on ” any natural or legal person whose activity consists, principally or incidentally, in collecting, moderating or disseminating online reviews from consumers is required to provide users with fair, clear and transparent information on how to publish and process online reviews ».

In addition to the obligations imposed on the professional in the collection, publication and dissemination of opinions, he may also be sanctioned under Misleading commercial practices for having disseminated or caused to be disseminated by another legal or natural person ” false consumer reviews or recommendations or altering consumer reviews or recommendations in order to promote products ».

4. Product composition claims

The professional’s claims may also relate to the composition of a product. The professional must, in accordance with Article L. 121-2 of the aforementioned Consumer Code, faithfully indicate the composition of the product he offers for sale.

Even if the composition of a product is validly indicated by a professional, the latter may be sanctioned for deceptive commercial practices if it promotes the presence of an element of its composition but that in reality, this element is not significant.

As such, the Court of Cassation sanctioned a professional who indicated, on the labelling of syrups intended for children, that they contained vitamins and minerals. The syrup sold under the name “22 vitamins and minerals” and promoting “recommended for young children to optimize the intake of vitamins and minerals” or the syrup “Nez-gorge” presented as “syrup based on vitamin C, zinc and copper” constituted, according to the judges, misleading allegations. and misleading because the presence of minerals and vitamins highlighted in the presentation of the products is not significant in the final composition of these products (Court of Cassation, Criminal, Criminal Division, March 20, 2018, 17-80.290).

5. Penalties for misleading allegations

In addition to the sanctions attached to each of the allegations whose legal regime is specified by the texts, false, misleading or deceptive allegations may be sanctioned on the basis of misleading commercial practices.

The DGCCRF defines these practices as ” A deceptive commercial practice consists of any action, omission, conduct, approach or commercial communication on the part of a professional directly related to the promotion, sale or supply of a product, which contains information on the products or services it offers for sale, on the commitments it makes to customers or on the skills and qualities it possesses, which leads or is likely to lead the contractor to make a commercial decision that it would not have made otherwise ». The sanctioned commercial practice is therefore the practice of misleading or misleading communication, in any form, exercised by the trader for consumers, which would have the effect of altering or would be likely to alter the behaviour of the consumer.

Misleading commercial practices are punishable, at a minimum, by two years’ imprisonment and a fine of 300,000 euros (L. 132-2 of the Consumer Code).

In some cases, these penalties may even be increased ” in a manner proportionate to the benefits derived from the offence, at 10% of the average annual turnover, calculated on the last three annual turnover figures known at the date of the facts, or at 50% of the expenses incurred for the production of the advertising or practice constituting this offence ». This rate of 50% of the expenses incurred in carrying out the advertising or practice constituting this offence may even be increased to 80% where the misleading commercial practice relates to an environmental allegation.

The sentence of imprisonment may also be increased as in the case where the disputed commercial practices have been followed by the conclusion of one or more contracts. In this case, the prison sentence will be increased to three years.

¹Council Directive 84 / 450 / EEC of 10 September 1984 relating to the approximation of the laws , regulations and administrative provisions of the Member States concerning misleading advertising