Avoid qualifying as misleading advertising
Your goal is to:
- Offer dynamic, attractive and impactful promotional operations,
- Secure the proposal of marketing teams by ensuring that their content, depending on the medium used, does not fall under the violation of applicable provisions,
- To avoid any sanction following an action by the Economic Administration, or sectoral regulatory authorities.
Misleading
advertising or unfair commercial practices
Ensuring the legality of your promotional offers is an issue insofar as controls by the Economic Administration are frequent, and criminal and administrative penalties can be heavy.
The Consumer Code distinguishes between deceptive commercial practices by shares detailed in Article L121-2 of the Consumer Code, and those by omission which are specified in Article L121-3 of the Consumer Code.
The Consumer Code lists in Article L121-4 the practices that are deemed to be misleading.
Apart from these presumed misleading practices, an advertisement is only misleading in the event that it “alters or is likely to substantially alter the economic behaviour of the consumer who is reasonably well-informed and reasonably observant and circumspect, with regard to a good or service”, pursuant to Article L.121-1 of the Consumer Code relating to unfair commercial practices.
The medium of dissemination of the advertisement is indifferent to its deceptive nature.
Commercial practices by action, and those presumed to be misleading, target professionals and non-professionals, while those by omission only target consumers.
Heavy penalties for misleading advertisements
Deceptive commercial practices are punishable by the following penalties:
- Regarding the natural person, Article L. 132-2 of the Consumer Code provides for criminal penalties of up to two years’ imprisonment and a fine of up to 300,000 euros.
- The amount of the fine may be increased, in proportion to the benefits derived from the breach, to 10% of the average annual turnover, calculated on the last three annual turnover known at the date of the facts, or to 50% of the expenses incurred for the realization of the advertising or practice constituting the offence.
- With regard to the legal person, Article L. 132-3 of the Consumer Code provides for five times the penalties provided for natural persons pursuant to Article 131-38 of the Criminal Code and provides for the display of the decision or the dissemination of messages informing the public of a conviction pursuant to Article 131-39 of the Criminal Code.
In addition, Articles L. 132-8 and L. 132-4 of the Consumer Code specify that:
- The cessation of the misleading commercial practice may be ordered by the investigating judge or by the court hearing the proceedings, either at the request of the public prosecutor or ex officio;
- And that in the event of conviction, the court may order, by any appropriate means, the posting or dissemination of all or part of the decision or a communiqué informing the public of the reasons and the operative part thereof.
Misleading advertising may also be punished at the civil level by the payment of damages, in the context of an action for unfair competition based on Article 1240 of the Civil Code.
Gouache Avocats supports you on the issues of misleading advertising
Gouache Avocats supports you in the validation of promotional schemes and advertising campaigns, taking into account the impact of sectoral regulations (tobacco, alcohol advertising, medicines, credit, etc.), regulatory developments, and the particularities inherent in the various advertising media used.
In the campaign design phase, Gouache Avocats assists you in securing your proposal by legally validating its content according to the distribution media.
Our intervention that adapts to your timing will allow you to broadcast fair advertising, understandable to consumers and adapted to the constraints of your distribution media while maintaining its attractiveness and dynamism.
We work in the form of subscriptions or packages, which allows you to have visibility on your costs while benefiting from our availability.
In the after-sales phase, Gouache Avocats assists you in the event of checks by authorities or administrations (ARPP, DGCCRF, ARCEP) in connection with the dissemination of your advertising.
Our experience in this area has allowed us to develop a methodology to allow you to react effectively to this type of control:
• Upstream training of employees who will be the privileged interlocutors of the Administration and sectoral regulatory authorities in the event of controls,
• Presence at your side to check the relevance of the documents required, to ensure their possible confidentiality,
• Assistance during interviews, proofreading of the minutes, formulation of any reservations,
• Response to notifications,
• Appeal to the JLD to challenge the inspection and seizure operations,
• Appeal to the Administrative Judge to challenge the sanctions,
• Defend yourself in the event of criminal or civil proceedings.
Guillaume Gouachon
Avocat associé
Responsable "Consommation, produits et conformité"
Martine Behar Touchais
Professeur de droit Of counsel
Responsable "Distribution & Concurrence"
