Set up comparative advertising

The conditions for the legality of comparative advertising

Comparative advertising, which in fact implies a situation of competition, is only permissible subject to the following conditions:
• it must not be misleading or deceptive;
• it must relate to goods or services meeting the same needs or having the same objectives, and sold concomitantly, that is to say products or services that will be considered as substitutable by the recipient of the advertisement;
• the comparison must be objective, which excludes any reference to subjective assessments such as aesthetics, taste, flavour or smell. It also assumes, when advertising compares prices, that the prices are compared as a whole;
• this implies that the comparison relates to “the essential, relevant, verifiable and representative characteristics of the goods or services”: the comparison may relate to one or more characteristics. The price may be part of it;
Competitors whose products or services are compared must be identified. Such specification may be explicit or implicit. The recipient of the comparative advertising can be either a consumer or a professional.

Penalties for unlawful comparative advertising

In case of violation of the legal conditions, several actions can be taken either by your competitors and/or by the Economic Administration, and you face different sanctions:

• Civil penalty: order to pay damages in the event of unfair competition, on the basis of Article 1240 of the Civil Code;

• Criminal penalties comparative  advertising constitutes a deceptive commercial practice,since the advertiser incurs a prison sentence of two years and a fine of 300,000 euros. The amount of the fine may be increased to:10% of the average annual turnover, calculated on the last three annual turnover figures 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.

• Sanctions applicable for trademark infringement: four years’ imprisonment and a fine of 400,000 euros for acts of trademark infringement.

Violations of the rules on comparative advertising may also be noted and prosecuted by the agents of the Economic Administration who may, after an adversarial procedure, order the professional to cease the practice of unlawful comparative advertising, within a reasonable time. If, at the end of this period, the professional has not complied with the order of the DGCCRF, the latter may impose an administrative fine on the operator, of a maximum amount of €3,000 for a natural person and €15,000 for a legal person.

Officers of the DGCCRF may also act before the civil court to ask the judge to order the cessation of the practice, after notifying the Public Prosecutor.

Finally, the Law for Digital Trust provides special provisions applicable to online comparison platforms that must appear on their site a specific section dedicated to the modalities of comparisons.

Designing lawful comparative advertising

Gouache Avocats helps you to see, structure, and write your comparative content, validating it against the criteria set out by the applicable legal provisions and case law.

Gouache Avocats also assists you if you are the victim of an unfair, denigrating or defamatory advertising campaign.