Comparative advertising: legal framework and limits
Comparative advertising, a powerful marketing tool, is strictly regulated by law to ensure fair information and fair competition.
The legal framework of comparative advertising in French law
The Consumer Code precisely defines what comparative advertising is and the strict conditions for its validity. The objective is twofold: to provide objective information to the consumer and to ensure fair competition between professionals. Any comparison must therefore respect a rigorous formalism to be considered lawful. (See also: Advertising, promotions and consumer law: what the law says)
Definition and conditions of lawfulness
The legality of comparative advertising is conditional on compliance with several cumulative criteria, as specified in Article L122-1 of the Consumer Code. To be authorized, an advertisement that compares goods or services by identifying, implicitly or explicitly, a competitor or the goods and services offered by a competitor must above all not be misleading or misleading. It must serve to enlighten the consumer’s choice without distorting the reality of the offer.
The conditions for lawfulness are three in number and must all be met:
- The comparison must not be misleading or misleading. The clarity and veracity of the information is paramount to not vitiate the consumer’s consent.
- It must relate to goods and services meeting the same needs or having the same objective.
- The comparison must be objective. This means that it must compare one or more essential, relevant, verifiable and representative characteristics of these goods or services. Price is one of those features, but it’s not the only one.
Failure to comply with any one of these conditions is sufficient to make the advertising unlawful and exposes the advertiser to sanctions. The challenge is to maintain a balance between the freedom to inform and the need to protect economic actors against unfair practices.
The specific prohibitions governing the comparison
Beyond the conditions of validity, the legislator has provided for a series of formal prohibitions to prevent abuse. These rules, mainly enacted in Articles L122-2 to L122-5 of the Consumer Code, aim to protect the reputation of competitors and the integrity of products, especially those benefiting from special protection.
Article L122-2 lists four main prohibitions. A comparative advertisement must not:
- Take unfair advantage of the notoriety attached to a brand, a trade name or any other distinctive sign of an identifiable competitor.
- Causing the discrediting or denigration of brands, products, or the situation of a competitor.
- Create confusion between the advertiser and a competitor, or between their respective brands and products.
- Present a good or service as an imitation or replica of a product or service with a protected trademark.
In addition, special protection is granted to products with an appellation of origin. Article L122-3 specifies that the comparison of products benefiting from a controlled designation of origin (AOC) or a protected geographical indication (PGI) is only allowed if it relates to products each benefiting from the same designation or indication.
Article L122-4 adds a restriction on media: it is prohibited to include comparative advertising on packaging, invoices, tickets or access tickets. Finally, a fundamental principle is laid down by Article L122-5: the burden of proof. The advertiser who practices comparative advertising must be able to prove, by all means, the accuracy of its claims, indications and presentations. In the event of a dispute, it is up to him to provide the elements justifying the objective comparison that he has disseminated.
The decisive contribution of recent case law
The legal framework of comparative advertising, although precise, is regularly interpreted by judges. Recent case law of the Court of Justice of the European Union (CJEU) has clarified an essential concept: that of “competitor”. This decision has major implications, especially for the fast-growing sector of online comparators.
The CJEU judgment of 8 May 2025: the notion of competitor
The judgment of the CJEU of 8 May 2025 (case C-697/23) provided a crucial clarification on the scope of Directive 2006/114/EC on misleading and comparative advertising. The case concerned a German company operating an insurance product comparison site. An insurance company, whose offers were compared and noted on the site, challenged this practice by invoking the rules on comparative advertising.
The question put to the Court was whether the activity of an online comparator, which is not itself in direct competition with the companies whose offers it compares, falls under the comparative advertising regime. The CJEU’s answer is unequivocal: for there to be comparative advertising within the meaning of the directive, the comparison must come from a “competitor“. A competitor is defined as a company that offers the same goods and services on the market as those that are the subject of the comparison.
However, the comparison site does not sell insurance products. Its service consists of providing a comparison tool and, possibly, facilitating contact with insurers. It is therefore not a competitor to insurance companies. Consequently, the CJEU ruled out the application of the comparative advertising regime in this specific case. This decision underlines that this legal framework is designed to regulate relations between players directly competing on the same market.
Implications for online comparators and market participants
This CJEU decision has immediate practical consequences for online comparators and all market players. By excluding comparators from the scope of comparative advertising, the judgment clarifies that this regime cannot be invoked by a company (for example, an insurer, an energy supplier) to attack a site that compares its offers to those of its rivals, because the site itself is not a rival.
This does not mean that online comparators operate in a legal vacuum. Their activity remains subject to other regulations, in particular the prohibition of deceptive marketing practices. If a comparator disseminates false, incomplete or misleading information about the characteristics or price of a service, it may be prosecuted on this basis. The distinction is subtle but fundamental: protection does not come from the rules of fair competition between peers, but from those that protect the consumer from unfair information.
In conclusion, this recent case law reaffirms that the comparative advertising regime is a specific tool intended to frame communication between direct competitors. Third-party platforms, such as comparators, which provide an information and matching service, are not considered competitors and therefore escape this specific framework, while remaining responsible for the fairness of the information they provide to the public.
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