Advertising is an essential driver of economic activity, enabling companies to publicise their products and services. However, this freedom of commercial expression is not absolute. French law strictly regulates advertising practices to ensure fair information and protect consumers against abuse. Navigating this complex legal framework is essential for any company concerned about its reputation and wishing to avoid potentially heavy penalties. This article provides an overview of the applicable rules, particularly as regards misleading and comparative advertising.
Why do we need a legal framework for advertising?
The legal framework for advertising meets a dual need: to preserve the freedom of trade and industry while ensuring consumer protection and fair competition.
The balance between freedom of commercial expression and consumer protection
The principle is freedom of commercial communication. A company must be able to extol the merits of its offerings. However, this freedom is limited to the point where there is a risk to the consumer or to healthy competition. The legislator intervenes to ensure that the advertising message is clear, honest and cannot mislead the public to whom it is addressed. The aim is to maintain confidence in commercial exchanges and enable consumers to make informed choices.
The risks of uncontrolled communication (penalties, image)
Advertising that is deemed illegal exposes the advertiser, and sometimes the communications agency, to serious consequences. In addition to financial penalties (civil, criminal or administrative fines) and corrective measures (cessation of distribution, publication of corrections), the company's brand image can be permanently tarnished. A message perceived as misleading or unfair damages the relationship of trust with customers and can affect the company's reputation in its market. Vigilance is therefore essential.
Misleading advertising: identifying prohibited practices
The best-known form of illegal advertising is undoubtedly misleading commercial practices, which are punishable under the Consumer Code.
What is a false or misleading claim (Summary Tech 1)
Advertising is considered misleading when it is based on claims, indications or presentations that are false or misleading. making a mistake for the average consumer. This deception may relate to a variety of matters: the existence, nature, composition, substantial qualities, origin, price, method of use of the product or service, or the expected results, etc.. The error may also result from an omission, i.e. the withholding of essential information that the consumer needs to make a decision.. Intention to deceive is not always necessary for the offence to be constitutedIt is sufficient for the message to be objectively likely to impair the consumer's judgement. For a detailed analysis of the criteria and examples, see our article on the misleading advertising and prohibited practices.
Common examples and points to watch out for (Tech 1 summary)
There are many examples of potentially misleading advertising: false promotions, unsubstantiated environmental claims ("greenwashing"), claims of value ("product of the year") with no objective justification, incorrect origin ("made in France"), omission of the chargeable nature of a service presented as free, etc. Vigilance is needed to ensure the truthfulness and clarity of every element of the advertising message, including visuals and implicit claims.
Comparative advertising: communicating about the competition, subject to conditions
Comparing your offers with those of your competitors is an accepted practice, but one that is highly regulated to avoid unfair practices.
The principle of lawfulness and its strict limits (Tech 2 summary)
Comparative advertising is lawful if it complies with several cumulative conditions defined by the Consumer Code. It must not be misleading, it must relate to goods or services that meet the same needs or serve the same purpose, and the comparison must be objective.. This objectivity implies comparing one or more essential, relevant, verifiable and representative characteristics of these goods or services, of which price may be one [cite: 1]. The use of a competitor's trademark is possible within this strict framework. To understand all the conditions for comparisonOur dedicated article gives you all the details you need.
Fair comparison vs. disparagement: where is the dividing line? (Synthèse Tech 2)
The comparison, even if objective, must not denigrate competitors or their brands, products or services.. Nor must it cause confusion between the advertiser and a competitor, or take unfair advantage of the reputation of a competitor's brand.. There is sometimes a fine line between the two. An objective comparison highlights factual differences, whereas a denigration discredits the competitor without objective justification, often through gratuitous or subjective attacks.
Penalties for unlawful advertising
Failure to comply with the rules governing advertising can result in various types of penalty.
Civil penalties: action for unfair competition, termination
In civil law, a company that has been the victim of misleading advertising or unfair comparison by a competitor can take legal action to obtain an end to the practice and damages to compensate for the loss suffered. Consumer associations can also take action.
Criminal and administrative penalties
Misleading advertising is a criminal offence. Individuals are liable to up to two years' imprisonment and a fine of 300,000 euros, which can be increased to 10% of average annual sales. or 50% of the costs incurred in carrying out the project. advertising. Legal entities (companies) are liable to a fine of up to €1,500,000, increased by the same proportion. Additional penalties are possible (posting of the decision, ban on practising, etc.). The General Directorate for Competition, Consumer Affairs and Fraud Control (Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes) (DGCCRF) can also impose administrative fines.
The importance of legal advice
Given the complexity of the rules and the severity of the penalties, the assistance of a legal professional is often crucial.
Validate your advertising campaigns in advance
Before launching an advertising campaign, it is advisable to have the messages and media validated by a legal expert. A lawyer with expertise in advertising law can analyse your projects, identify the potential risks of classification as misleading or unlawful comparative advertising, and suggest adjustments to secure your communications. This preventive audit is a worthwhile investment to avoid costly litigation.
Defending you in the event of an advertising-related dispute
If your company is accused of illegal advertising, or if you believe you are the victim of unfair practices by a competitor, the services of a lawyer are essential. He or she will be able to analyse the situation, define the best strategy for defence or action, negotiate with the opposing party or the authorities, and represent you in court if necessary. A advertising lawyer will know how to best defend your interests.
Mastering the legal framework for advertising is a major issue for the security and long-term future of your business. If you have any questions about your advertising practices or if you are faced with a dispute in this area, do not hesitate to contact our firm to discuss your situation and your options.
Frequently asked questions
What is the difference between misleading and unlawful comparative advertising?
Misleading advertising misleads consumers about the characteristics of a product or service, while unlawful comparison advertising unfairly or falsely compares a product or service with that of a competitor.
Can advertising be considered misleading by omission?
Yes, omitting essential information that the average consumer expects can make advertising misleading.
What are the main conditions for comparative advertising to be legal?
It must be objective, relate to similar and verifiable elements, not be misleading, denigrating or confusing.
Can a competitor's brand be used in comparative advertising?
Yes, if the comparative advertising complies with all the conditions of lawfulness, then use of the competing brand is authorised.
What are the penalties for illegal advertising?
Penalties may be criminal (fines, imprisonment), civil (damages, injunction) or administrative (DGCCRF fines).
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