In a competitive commercial environment, advertising is an essential tool for companies wishing to promote their products or services. However, this communication must comply with strict rules to guarantee fair and transparent information for consumers. The line between an advantageous presentation and a misleading claim can sometimes be a fine one, exposing the advertiser to penalties for misleading commercial practices. Understanding the contours of misleading advertising is therefore essential for any business concerned about its reputation and legal compliance. This article explains what is meant by misleading advertising, how it is characterised and what the consequences are. For a regulatory overviewTo find out more about the legal framework for advertising in France, please consult our article on the legal framework for advertising in France.
What is a misleading commercial practice in advertising?
The concept of misleading advertising is integrated into the broader concept of "unfair commercial practices", prohibited by the Consumer Code. These practices are defined as those which are contrary to the requirements of professional diligence and which alter, or are likely to alter in a substantial manner, the economic behaviour of the consumer who is normally informed and reasonably attentive and well-informed.
Legal definition (French Consumer Code, L. 121-2 et seq.)
Articles L. 121-2 et seq. of the French Consumer Code provide a precise definition of misleading commercial practices. A practice is considered misleading if it is committed in one of the following two circumstances:
- When it creates confusion with another good or service, a trademark, a trade name or another distinctive sign of a competitor.
- When it is based on claims, indications or presentations that are false or likely to mislead the average consumer. This second category directly covers misleading advertising.
Article L. 121-2 sets out a non-exhaustive list of elements that may be the subject of deception: existence, nature, composition, substantial qualities, origin, quantity, method and date of manufacture, price, conditions of sale, after-sales service, scope of the advertiser's undertakings, identity and qualities of the advertiser, handling of complaints, etc. A practice may also be misleading by omission, i.e. if it conceals substantial information that the average consumer needs to make an informed commercial decision. cause (Article L. 121-3 of the French Consumer Code).
Distinction between false and misleading advertising
The law therefore targets two distinct types of behaviour with similar consequences:
- Advertising containing false information: This is a positively erroneous statement, a direct lie about the product's characteristics, price, origin, etc. The advertiser is saying something that is not true. The advertiser is asserting something that is not true. The falsehood must be objectively verifiable.
- Misleading advertising : This category is more subtle. The information is not necessarily false in itself, but it is presented in such a way (by its wording, ambiguity, omissions, context) that it risks giving the wrong impression to the average consumer and influencing their purchasing decision. The assessment is made in concretoThis takes into account the target audience and their likely perception of the message. This may involve ambiguous presentation, deliberate omission of an essential element, or disproportionate emphasis on a minor benefit.
The distinction is important because it considerably broadens the scope of the prohibition. It is not necessary to prove a material misrepresentation; a mere misleading suggestion or calculated omission may be sufficient to classify the practice as misleading.
The material element: when does advertising go wrong?
For an advertisement to be classified as misleading, its material element must first be established, i.e. the reality of the discrepancy between the advertising message and the truth. This discrepancy may take the form of false statements or misleading presentation.
False allegations, indications or presentations
Article L. 121-2 of the French Consumer Code lists the main aspects to which these false statements may relate. It is important to note that this list is not exhaustive.
- On the existence, nature, composition, substantial qualities... : This concerns the intrinsic characteristics of the good or service. For example, advertising a product as "100% natural" when it contains synthetic additives, or attributing to an appliance a performance that it does not achieve. Substantial qualities" refer to the main characteristics expected by consumers for this type of product (durability, effectiveness, safety, etc.).
- On the origin, quantity, method and date of manufacture... : The geographical origin ("Made in France" for a product made elsewhere), the actual quantity (a pack advertised as containing 1L but is only 90cl), the manufacturing process (artisanal vs industrial) or even the freshness ("caught of the day" for frozen fish) are all elements whose falsity can constitute deception.
- On price, terms and conditions of sale, sales procedures... : Common examples include advertising an artificially inflated slashed price to give the impression of an exceptional promotion, disguising compulsory additional charges, presenting a sale as "exclusive" when it is widely available, or using terms such as "free" when obtaining the product is conditional on a prior purchase. Payment and delivery terms can also be targeted.
- On the scope of the commitments, the identity, the qualities of the advertiser... : Lying about the extent of a guarantee, about the company's professional qualifications ("certified craftsman" without being one), about its experience or references, or even misusing a quality label or award that has not been obtained is misleading advertising.
In all these cases, falsity must be assessed objectively. Simple advertising exaggeration ("the best coffee in the world") is generally not punished if it is part of the usual sales pitch and is not likely to be taken literally by a normally well-informed consumer.
Misleading advertising: the subtlety of the message
Here, the offence lies less in the intrinsic falsity of the information than in the overall impression created by the advertising, which risks distorting the consumer's judgement.
- Assessment in relation to the average consumer : The assessment is made from the point of view of an "ordinarily informed and reasonably observant and circumspect" consumer, taking into account social, cultural and linguistic factors. This is neither the particularly gullible consumer nor the informed expert. If this average consumer is likely to be misled by the presentation, the offence may be constituted, even if some accurate information is present but embedded in an overall misleading message.
- Omission of material information : Article L. 121-3 of the French Consumer Code makes it a criminal offence to conceal or provide substantial information in an unintelligible, ambiguous or late manner. Information is substantial if the average consumer needs it to make an informed commercial decision. Failing to mention that a displayed price is exclusive of tax, that the use of a service requires an expensive subscription, or that significant limitations apply to a promotional offer may constitute a misleading omission. The way in which the information is presented (font size, location, clarity) is also taken into account.
Comparative advertising, for example, must be particularly careful not to mislead by omitting essential features or presenting the comparison in a biased way. To find out more about the specific conditions, please consult our article on comparative advertising. comparative advertising.
The moral element: intent or negligence?
In addition to the material element (the misleading nature of the advertising), the offence of misleading commercial practice requires a moral element. This is the psychological attitude of the advertiser at the time of the offence.
Intentional offences: intent to deceive
In principle, misleading advertising is an intentional offence. This means that in order to be convicted, the perpetrator (advertiser, agency, etc.) must have been aware of the false or misleading nature of its advertising and must have had the intention to disseminate it in spite of everything. It can be difficult to prove this intention directly. However, the courts often deduce it from the circumstances: the enormity of the lie, the repetition of the facts, the professional nature of the author (who is supposed to know the regulations and characteristics of his products), or the absence of serious prior verification. Bad faith is often presumed when the facts are obvious.
Possible non-intentionality: when error becomes fault
However, case law and the law have relaxed the requirement of malice aforethought. Even in the absence of deliberate intent to deceive, liability may be incurred. The offence may be constituted by simple negligence, recklessness or culpable ignorance. Professional advertisers cannot hide behind a simple error if they have not taken all reasonable precautions to check the truthfulness and clarity of their advertising messages. The lack of diligence, the absence of internal control, or the fact of distributing information supplied by a third party without verifying it may be sufficient to characterise the moral element.
In practice, therefore, a professional cannot claim ignorance or simple error to escape liability if it can be shown that he should have been aware of the misleading nature of the advertising through normal checks falling within his remit. Moreover, the burden of proving the truth of the claims often falls on the professional (article L. 121-5 of the Consumer Code).
Who can be targeted by the offence?
Liability for misleading advertising does not lie solely with the company selling the product or service. Several players in the advertising chain can be held liable.
The advertiser: the main culprit
The advertiser is the party on whose behalf the advertisement is broadcast. This is usually the company that markets the promoted good or service. It is the advertiser who is considered to be primarily responsible for the truthfulness and fairness of the advertising message. Even if the creation of the advertisement has been delegated to an agency, the advertiser retains the obligation to control the content broadcast and to ensure that it complies with the law and with the reality of its offer. In general, advertisers cannot exonerate themselves by blaming their service providers. Their knowledge of the products or services they offer puts them in the front line.
The advertising agency and the distribution medium: what responsibility?
The advertising agency that designed or produced the campaign may also be held liable if it knowingly participated in the dissemination of a misleading message or if it failed in its duty to advise and exercise due care by not verifying the information provided by the advertiser or by proposing a misleading creative. Its responsibility will be assessed on the basis of its role and room for manoeuvre in the creative and validation process.
As for the broadcast media (newspapers, television channels, websites, online platforms, etc.), they are more rarely held liable, unless they were aware of the manifestly illegal nature of the advertising before it was broadcast and did nothing to prevent it. They have a duty of care, but are not obliged to systematically check the veracity of every advertising claim they host, except in obvious cases.
In the event of a dispute, it is often the case that several players are jointly prosecuted, with each being sentenced according to their degree of involvement and fault.
Penalties for misleading advertising
When a misleading commercial practice is proven, the perpetrators are liable to various penalties, which may be cumulative. The purpose of these penalties is to punish unfair behaviour, compensate consumers and competitors for the damage caused, and prevent repeat offences.
Criminal penalties (fines, imprisonment)
Misleading advertising is a criminal offence. Article L. 132-2 of the French Consumer Code provides for penalties of up to :
- Two years' imprisonment.
- A fine of 300,000 euros for individuals.
The amount of the fine may be increased, in proportion to the benefits derived from the offence, to 10 % of average annual turnover (calculated on the basis of the last three annual turnover figures known at the time of the offence) or 50 % of the expenditure incurred in carrying out the advertising or practice constituting the offence. the offence. For legal entities (companies), the fine may be as high as €1,500,000 (five times the fine for individuals) or the percentage of turnover or advertising expenditure referred to above. Additional penalties may also be imposed, such as a ban on exercising a professional or commercial activity.
Civil penalties (cessation of advertising, publication of judgment, damages)
There are a number of possible civil actions:
- Action for injunction : The judge may order the cessation of the unlawful advertising or practice, possibly subject to a fine (financial penalty per day of delay).
- Publication of the judgment : To inform the public and restore fair competition, the court may order the publication of the conviction in newspapers or other media, at the expense of the offender. This penalty is often feared for its impact on a company's image.
- Damages : Consumers or approved consumer associations, as well as competitors who believe they have suffered damage as a result of misleading advertising, may seek compensation before the civil courts. The damage may be economic (loss of customers, loss of opportunity) or moral (damage to brand image).
Administrative penalties (DGCCRF)
The Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF) also has its own powers. Its agents can investigate, record offences and impose administrative penalties:
- Injunction to cease the practice : The DGCCRF can order the company to put an end to the misleading practice.
- Administrative fine : In the event of non-compliance, the administrative authority may impose a fine of up to €3,000 for an individual and €15,000 for a legal entity.
- Corrective measures : The DGCCRF can order the publication of a press release informing consumers or the distribution of corrective messages.
These administrative penalties may be imposed independently of criminal or civil proceedings.
How can I protect myself against the risk of misleading advertising?
To avoid falling foul of legislation on misleading commercial practices, companies need to adopt a proactive and rigorous approach to the development and dissemination of their advertising messages.
Verifying the veracity of allegations
That's the ABC. Every factual claim made in an advertisement must be scrupulously checked and documented before it is broadcast. Do you have objective evidence (tests, studies, certifications, precise technical characteristics) to back up your claims about the performance, composition, origin or benefits of your product? Advertisers must be able to justify the truth of their claims in the event of an inspection or dispute. Particular attention should be paid to superlatives and comparisons.
Clarity and transparency of the advertising message
Beyond simple veracity, the way in which the information is presented is essential. The message must be clear, unambiguous and easily understood by the average consumer for whom it is intended. Avoid excessive technical jargon without explanation, convoluted wording or asterisks referring to restrictive conditions in tiny type. Substantial information, particularly on the total price, the conditions of an offer, limitations or commitments, must be presented in a fair and accessible manner. The deliberate omission or concealment of important information is to be avoided.
Legal audit of your campaigns
Having your advertising campaigns reviewed and validated by legal counsel before they are launched is a wise precaution, particularly for large-scale campaigns or those involving sensitive products or services (health, finance, environment, etc.). A lawyer with expertise in advertising law will be able to identify the potential risks of misleading practices, check that claims comply with the applicable sectoral regulations, and ensure that legal notices are valid. He can also advise you on how to formulate your messages to combine commercial effectiveness and legal certainty. In the event of defence in the event of litigationIf you have any doubts about your advertising, it is essential to consult a lawyer who is an expert in misleading advertising.
Vigilance is therefore required at every stage, from the design of the message to its dissemination, to ensure that a company's communications are always fair and respectful of consumer rights.
If you are faced with a situation where your advertising is called into question, or if you wish to validate the compliance of your campaigns, do not hesitate to contact our firm to discuss your options and secure your commercial practices.
Sources
- Consumer Code: Articles L. 121-2 to L. 121-5 (Definition and constituent elements of misleading commercial practices)
- Consumer Code: Articles L. 132-2 et seq (Criminal penalties)
- Consumer Code: Article L. 522-1 et seq (Powers of the DGCCRF)
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