Advertising, Marketing & Promotion Comparative Guide

1 Legal framework

1.1 What are the main legislative and regulatory provisions that govern advertising in your jurisdiction?

Advertising is regulated by both law and self-regulation.

General rules apply to all advertising, irrespective of the product concerned. For example:

• the Consumer Code covers:
• • deceptive and misleading advertising; and
  • comparative advertising;
• the IP Code deals with the protection of trademarks and copyrights;
• Article 9 of the Civil Code protects the images and privacy of individuals; and
• the 1994 loi Toubon requires the use of the French language in all advertising.

There are also specific rules that apply to certain media. For instance, Decree 92-280 of 27 March 1992 sets out specific rules on television advertising.

The Digital Economy Law (2004-575) addresses certain specificities of activities carried out online and sets out general rules which are identical to those that apply in the ‘real world', such as a requirement for ads in any form (eg, pop-ups, banners) to be identified as such and thus to be clearly distinguished from non-commercial information.

1.2 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have particular relevance for advertising in your jurisdiction?

The EU Audiovisual Media Services Directive harmonises national laws across the European Union on all audiovisual media, including traditional television broadcasts and on-demand services. The current consolidated version is dated 18 December 2018.

The EU E-privacy Regulation is the third and presumably final measure in an initiative to harmonise the rules and regulations on European data protection, following the first Data Protection Directive (95/46/EC) and the E-privacy Directive (2002/58/EC). It also aims to partially supplement the General Data Protection Regulation (2016/679). One major change is set to affect the use of cookies. Rejecting cookies that are not necessary should become simpler for web users and, for example, should be regulated via browser settings. However, the legislative status of the E-privacy Regulation is currently ‘on hold'.

With regard to self-regulatory rules, the International Chamber of Commerce's Consolidated Code of Advertising and Marketing Communication Practice is a globally applicable self-regulatory framework developed by experts from all industry sectors worldwide.

1.3 What industry codes or guidelines have relevance for advertising in your jurisdiction?

The French Advertising Self-regulation Agency (ARPP) represents advertisers, agencies and the media. It details expected ethical standards through self-regulatory rules entitled ‘recommendations'.

1.4 Which bodies are responsible for implementing and enforcing the advertising regime in your jurisdiction? What is their general approach in doing so?

The ARPP Jury ensures the proper implementation of the ARPP's recommendations.

The French Data Protection Agency also ensures the protection of personal data when it is violated – for instance, in connection with:

• unsolicited direct canvassing by email;
• illicit data collection; or
• unlawful processing of personal data.

The French Consumer and Competition Agency has broad investigative powers in relation to all matters pertaining to the protection of consumers, including advertising practices.

The Regulatory Authority for Audiovisual and Digital Communication is the protector of freedom of communication and ensures that audiovisual and digital media are pluralistic and respectful of everybody. It has jurisdiction over both public and private media.

Depending on the violation, a claim can be brought before the civil or criminal courts.

2 Authorisation and clearance

2.1 Do advertisers need any kind of licence or authorisation in order to operate in your jurisdiction?

No.

2.2 Do ads require any kind of clearance before they can be released in your jurisdiction?

A pre-clearance request must be filed with the French Advertising Self-regulation Agency (ARPP) for the television broadcast of ads. French television channels will refuse to broadcast any ad that has not previously been approved by the ARPP.

3 General advertising regime

3.1 What general rules and requirements apply to ads in your jurisdiction?

Generally:

• unfair competition and misleading advertising are prohibited;
• comparative advertising is regulated; and
• specific regulations apply to certain:
• • products (eg, alcohol, tobacco and books);
  • categories of persons (eg, children in advertising, respect of the image of individuals); and
  • media (eg, television, Internet).

The French Advertising Self-regulation Agency (ARPP) has thus far issued approximately 31 recommendations which are either:

• general;
• thematic;
• aimed at certain media or economic sectors; or
• miscellaneous.

3.2 What rules and requirements apply to puffery in your jurisdiction?

The use of exaggeration in ads is tolerated in France (publicité hyperbolique), provided that, through the visual elements of the ad, in the critical mind of the average consumer, it is blatant that the exaggeration cannot mislead anyone. Caricaturised advertising messages are tolerated for the same reason.

3.3 Under what circumstances must claims in ads be substantiated?

Substantiation is required. The rules on misleading commercial practices apply to all advertising claims that cannot be substantiated by the advertiser.

In addition, the ARPP has issued recommendations which oblige advertisers to substantiate claims. For instance, its Sustainable Development Recommendation, as updated in April 2020, provides that an advertiser must be able to substantiate sustainable development claims with objective, reliable, truthful and verifiable information at the time of advertising (Section 2.3).

For any message based on a scientific claim, the advertiser must be able to present the origin of the results promoted and the methodology used as a basis for calculation.

Ads may not use scientific demonstrations or conclusions that are not consistent with recognised scientific work.

3.4 What rules and requirements apply to the use of the following? (a) Test results; (b) Survey results and (c) Testimonials.

The general principle of fair and honest advertising applies (general prohibition of unfair commercial practices/misleading advertising).

(a) Test results

The ARPP has issued a recommendation on cosmetic products which states, in particular, that when tests are mentioned in an ad, their nature must be clearly specified (ie, whether they were objective or clinical tests or consumer satisfaction tests). Where a recommendation for a product is made by someone working for the brand at stake, such a connection must also be clearly stated in the ad.

(b) Survey results

Any exploitation of a claim based on figures/surveys must be substantiated by verifiable, objective and updated documents.

(c) Testimonials

An advertising claim – regardless of form – that uses testimonies or certifications of persons (well known or not) must comply with the rule that marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant.

Moreover, where an ad – regardless of form – uses certifications and testimonies from well-known persons whose expertise is not questionable and allows them to give authorised advice on the subject, the certifications must:

• be based on product experiences that the person has had himself or herself (or under his or her supervision) in regular use conditions; and
• clearly specify the conditions in which the experience was gained and the results were obtained in a document drafted before the first publication of the ad.

3.5 What rules and requirements apply to the protection of minors?

There are various laws and regulations aimed at protecting minors.

For example, under the Audiovisual Media Services Directive, product placement is banned in content aimed at children – in particular, children's programmes – as children are generally unable to spot the commercial character of the content.

In France, children's exposure to food marketing is a major public health issue. In June 2020, Santé Publique France published a report highlighting the high exposure of children and teenagers to marketing for food products that are too fatty, too sweet or too salty. Indeed, food marketing – especially for low nutritional value and high energy foods – is contributing to the obesogenic environment that is fuelling the global obesity epidemic observed among adults and children.

The Law of 20 September 2016 expressly bans commercial advertising in youth programmes on public television and aims to "strictly limit … the effects of advertising in programmes aimed at young people and broadcast on public television channels", to fight childhood obesity.

The Law of 9 June 2023 states that, when influencer marketing is performed by an individual under 16 years old, the employer is subject to the Law of 19 October 2020, aimed at regulating the commercial exploitation of the images of children under the age of 16 on online platforms (known as ‘YouTubers'/‘influencers').

The ARPP has issued a recommendation on ads and children which sets forth various rules aimed at protecting children (eg, social responsibility, dignity/decency, no violence).

3.6 Are certain forms of advertising prohibited in your jurisdiction?

Subliminal advertising is prohibited in France, on television in particular (Article 10 of Decree of 27 March 1992 and Article 9(b) of EU Directive 2010/13).

Any propaganda or advertising, direct or indirect, in favour of tobacco, tobacco products (cigarettes, cigars, snuff, pipe tobacco) or ingredients is also prohibited.

4 Misleading advertising

4.1 On what grounds will an ad be found to be misleading in your jurisdiction? How does the process unfold?

‘Misleading commercial practices' can be divided into the following categories:

• misleading commercial practices resulting from a positive action; and
• misleading commercial practices resulting from an omission – for instance, a failure to provide information which is essential for the recipient of the ad.

Several procedures/legal action may be envisaged:

• A plaintiff may send a letter to the French Consumer and Competition Agency to have an inquiry launched against the advertiser. If successful, the matter can be brought before the French prosecutor, who is entitled to bring a claim before the criminal courts.
• A plaintiff (consumer or competitor) may file a claim with the civil courts seeking monetary damages (tort law) if the plaintiff can prove that it suffered prejudice. A summary proceeding is possible under certain conditions; otherwise, a proceeding based on the merits may be brought. If the plaintiff is a competitor, the claim must be filed with the commercial courts.
• A plaintiff may file a claim with the French Advertising Self-regulation Agency (ARPP) Jury for an assessment of whether the ARPP's recommendations have been violated.

4.2 If an ad is found to be misleading, what are the consequences for the advertiser?

Unfair commercial practices (eg, misleading ads/false statements) are sanctioned by the criminal courts as follows:

• Individuals (legal representatives of a company): Up to two years' imprisonment and a criminal fine of up to €300,000 or, at the discretion of the judge, an amount equivalent to 10% of the average annual turnover of the company (calculated on the basis on the last three annual fiscal years known at the time of the litigious acts).
• Legal entity: A criminal fine of up to €1.5 million or, at the discretion of the judge, an amount equivalent to 10% of the average annual turnover of the company (calculated on the basis on the last three annual fiscal years known at the time of the litigious acts).

Additional sanctions may be ordered by the judge, such as publication of the decision.

A consumer or competitor may be granted monetary damages by the civil/commercial courts.

4.3 Can the advertiser appeal the decision? If so, what is the process for doing so?

An appeal (ie, a complete rehearing of the matter) may be brought against the first-instance decision when handed down by a civil, commercial or criminal court.

New evidence may be submitted on appeal.

Appeal decisions may be further appealed to the Supreme Court, but the Supreme Court will not reassess the facts. It does not review the merits of the case, but merely checks that the law has been properly interpreted and enforced by the court of appeal. In other words, the Supreme Court does not rule on the dispute between the parties, but on the quality of the court of appeal's decision that has been handed down.

Decisions of the ARPP Jury may be appealed to the Réviseur.

5 Specific advertising regimes

5.1 What rules and requirements apply to the following types of advertising in your jurisdiction, and what best practices should be considered in each case? (a) Comparative advertising; (b) Promotional marketing (eg, competitions, lotteries and sweepstakes); (c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing); (d) Native advertising; (e) Influencer advertising; (f) Ambush marketing; (g) Country-of-origin marketing; and (h) Green marketing.

(a) Comparative advertising

Comparative advertising is permitted in France under certain conditions – in particular, the following:

• It must concern goods/services that cover the same need or have the same purpose;
• The comparison must be objective and based on the essential, accurate and verifiable characteristics of the goods/services;
• The ad must not mislead the public; and
• The ad must not disparage the competitor.

(b) Promotional marketing (eg, competitions, lotteries and sweepstakes)

As a general rule, promotional marketing such as contests and sweepstakes is permitted in France, provided that it does not constitute an unfair commercial practice.

Certain rules do apply, however. For instance, when games of chance (eg, random draw promotions, instant win games) are offered to professionals/businesses, they are subject to Sections L320-1 and following of the Interior Security Code, which prohibits commercial operations that meet the following criteria (‘lotteries'):

• a public offer;
• the hope of a gain;
• the element of chance (draw); and
• a payment or financial sacrifice.

There is also a general prohibition (applicable to all promotions) against offering certain prizes, such as alcoholic beverages.

Finally, there are no tax implications for a sponsor in connection with the organisation of a prize draw/contest in France. The sponsor does not have to pay any tax in connection with the organisation of a prize draw/contest (ie, no tax is assessed on the value of the prize offered). And, as a general rule under French tax law, the prizes/gains awarded to the winner in a game of chance are not taxable.

(c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing)

Interest-based advertising is allowed in France, provided that it complies with the European and French regulations on data protection.

Under the General Data Protection Regulation, the processing of consumers' personal data, for marketing purposes is subject to their express prior consent. This consent must meet several criteria under the GDPR – it must be:

• freely given;
• specific;
• informed; and
• unambiguous.

In particular, the French Data Protection Agency (CNIL) monitors advertisers' compliance with the above requirements. In June 2023, the CNIL sanctioned a company that specialises in interest-based advertising to a fine of €40 million for several breaches of the GDPR – in particular, the obligation to obtain the data subjects' prior consent.

Similarly, in May 2023, the European Data Protection Commission sanctioned Meta to a fine of €1.2 billion for processing users' personal data based on their consent to its general terms and conditions of use, without obtaining their express consent for this specific processing.

The French Advertising Self-regulation Agency (ARPP), in its Digital Advertising Recommendation, also sets out requirements to be complied with the case of interest-based advertising. In particular, the tailored nature of the advertising must be clearly identified – for instance, through the use of a specific symbol (distinguishable from the content of the message and perfectly legible).

The Digital Service Act (DSA) (EU Regulation 2022/2065), which has applied since 25 August 2023 to online platforms and search engines with more than 45 million users in the European Union, sets out the following new rules and requirements for interest-based advertising:

• Targeting individuals with advertising based on their religion, sexual preferences, health information or political beliefs is prohibited;
• Interest-based advertising targeted at minors is prohibited; and
• The major online platforms and search engines must offer users an alternative recommendation marketing system which is not based on profiling.

Under the Decree of 6 August 2020, interest-based advertising on television is allowed: French national channels are allowed to broadcast, at the same time, different ads depending on where the targeted audience is located. However, certain conditions must be met – for instance, interest-based advertising:

• is not allowed before, during or after television programmes targeted at children; and
• must specifically mention the fact that it is a targeted ad.

(d) Native advertising

‘Native advertising' encompasses a family of advertising formats that adopt – or come as close as possible to – the design and ergonomics of the website on which they are located and adapt to the user's experience.

The general rule pertaining to the identification of the content as an ad applies to such advertising.

The ARPP's Recommendation on Digital Advertising contain some guidance on this identification rule. It is recommended to highlight the sponsored nature of content by means of an explicit indication such as ‘advertising', ‘sponsored by …', ‘in partnership with …' or similar. This indication must be legible or audible and intelligible, so that the advertising nature of the content is immediately perceptible.

(e) Influencer advertising

The Law of 9 June 2023 governs influencer marketing activity aimed notably at an audience based in France. Among other things, this law:

• reiterates that influencers must comply with advertising law; and
• provides that:
• • under conditions to be set by decree (not yet enacted), the undertakings of the parties (brands, agencies and influencers) must be set forth in a written agreement; and
  • the content posted by influencers must be identified as advertising content;
• imposes transparency requirements on photos, retouched videos and representations of appearances or faces created thanks to artificial intelligence; and
• states that, where influencer marketing is performed by an individual under 16 years old, the employer is subject to the Law of 19 October 2020 aimed at regulating the commercial exploitation of the images of children under the age of 16 on online platforms (known as ‘YouTubers'/‘influencers').

(f) Ambush marketing

There is no specific law which governs ambush marketing per se. Instead, such claims are usually grounded on the following legal bases when filed before the French courts:

• copyright/trademark infringement;
• parasitism/passing off (tort law) – ambush marketing may be sanctioned on the ground of parasitism/passing-off as it seeks to take unfair advantage of the economic investment flow resulting from a sporting event, which is deemed an unlawful direct use of such event;
• infringement of the French Sports Code – in particular, Article 333-1, which grants to sports federations and organisers of sports events the ownership of the commercial use of the events and competitions that they organise; and
• consumer law (Article L121-2 of the Consumer Code), which provides that it is considered an unfair commercial practice to mislead consumers about:
• • the true origin of a service (eg, a sports event); or
  • the status of an advertiser (eg, falsely claiming to be a sponsor).

(g) Country-of-origin marketing

For manufactured products, as a general principle, there are no European regulations or French rules requiring that a product bear a label mentioning the country of origin of the products imported or manufactured within the European Union. Indeed, such a rule would:

• hinder commercial exchanges within the European Union; and
• violate the general principle of the free movement of goods within the European Union.

However, some manufactured products – in particular, cosmetics – are subject to European regulations that impose such a requirement.

In addition, products that benefit from a protected designation of origin or any other protected designation are subject to an obligation to mention this designation.

The Law on Climate dated 20 July 2021 has amended the Consumer Code, which now provides that any inaccurate reference to a product being ‘Made in France' or ‘Origin France', in violation of the Union Customs Code, is an unfair commercial practice.

(h) Green marketing

The Law on Climate dated 20 July 2021 has amended the Environmental Code regarding greenwashing practices, which involve misleading consumers about the environmental qualities of a product or service.

Such practices are now considered to be misleading commercial practices and are therefore punishable under the same terms. No ad may state that a product or a service is carbon neutral or use any wording with equivalent meaning, unless the advertiser makes the corresponding documentation readily available to the public.

The main sanction is:

• a fine of up to €20,000 for individuals; and
• a fine of up to €100,000 for legal entities.

These amounts can be increased to the total amount of the expenses incurred in committing the illegal operation.

Moreover, new information requirements for automotive advertising have been in force since 1 March 2022. A carbon dioxide label must be inserted in all advertising (except on radio) for passenger cars. In addition, the Road Code now implements a requirement for the alternative display of three different messages in ads:

• “For short trips, prefer walking or cycling #LowerPollutionMovement”;
• “Think about carpooling #LowerPollutionMovement”; and
• “On a daily basis, take public transport #LowerPollutionMovement”.

The French Advertising Self-regulation Agency has also issued a recommendation setting out specific rules pertaining to sustainable development. For instance, the words or expressions in a given ad should not mislead the public as to the nature and the extent of the properties of the product or the actions of the advertiser in terms of sustainable development.

Where it is impossible to justify general statements (eg, ‘ecological', ‘green', ‘ethical', ‘responsible', ‘preserve', ‘equitable', ‘durable'), the ad should nuance them by using qualifiers such as ‘contributes to …'

For instance, a claim such as, “This product helps to protect the environment” should be preferred over a more general one, such as, “This product aims to protect the environment.”

6 Direct marketing

6.1 What rules and requirements apply to the following types of direct marketing in your jurisdiction, and what best practices should be considered in each case? (a) Telemarketing; (b) Email marketing; (c) Direct mailings; and (d) Opt-out marketing.

(a) Telemarketing

Telephone advertising (excluding the use of automatic calling machines) is possible, provided that at the time the telephone numbers are collected, individuals are:

• informed of the use of their data for direct canvassing purposes; and
• able to object to (opt out from) such use simply and free of charge.

The Decree of 13 October 2022, which took effect on 1 March 2023, limits the frequency of marketing calls that consumers may receive from the same business/advertiser to four per month. This threshold governs marketing communications targeting consumers.

(b) Email marketing

Spam is also regulated. The general principle is to obtain the prior consent of the recipient (opt-in) to commercial communications by email, SMS or fax (Article L34-5 of the Postal and Electronic Communications Code).

The same rule applies to direct canvassing through automatic calling machines.

(c) Direct mailings

Postal advertising is possible, provided that at the time the postal addresses are collected, individuals are:

• informed of the use of their data for prospecting purposes; and
• able to object to (opt out from) such use simply and free of charge.

Residents of 14 French geographic areas (collectivités) are entitled to affix a "Oui Pub" sticker to their mailboxes if they wish to continue receiving advertising by post. No more leaflets will be distributed to the other mailboxes of residents in these collectivités. This experimental scheme began on 1 September 2022 and will run for three years.

This experiment stems from the Climate and Resilience Act 2021 and was inspired by the Citizens' Climate Convention. It aims to:

• respond to citizens' growing awareness of the challenges of reducing waste; and
• enable local authorities to reduce the costs associated with waste collection and treatment.

(d) Opt-out marketing

The opt-out rule applies to direct canvassing by phone and post (subject to question 6 (c) above). In certain cases, direct canvassing by email may be governed by the opt-out rule (as opposed to the opt-in rule described in question 6 (b) above) where the advertiser is sending an ad for a product or service which is similar to that previously purchased by the recipient.

7 Indirect marketing

7.1 What rules and requirements apply to the following types of marketing in your jurisdiction, and what best practices should be considered in each case? (a) Product placement; (b) Sponsorship; and (c) Loyalty programmes.

(a) Product placement

Under Article 14-1 of the Law of 30 September 1986, the Audiovisual High Council (CSA) (which merged with the High Authority for the Broadcast of Works and the Protection of Rights on the Internet on 1 January 2022 to create the Regulatory Authority for Audiovisual and Digital Communication) is empowered to set the rules applicable to product placement.

In a deliberation dated 16 February 2010, as amended on 24 July 2012, the CSA decided that product placement is only authorised for:

• cinematographic works;
• audiovisual movies;
• fictional programmes; and
• video clips.

Otherwise, product placement is prohibited (eg, in television news). Alcoholic beverages, tobacco products, medicines, weapons and infant formula cannot benefit from product placement.

Programmes that contain product placement must comply with the following rules (Article 18 of the Decree of 27 March 1992):

• The content and the date of broadcasting must not be influenced in such a way that the liability and editorial freedom of the editor are altered;
• The product placement must not:
• • directly incite viewers to purchase or rent the products or services advertised; or
  • contain specific references to those products, services or trademarks; and
• The sponsorship must be identified as such at the beginning and end of the programme and during the programme.

The EU Audiovisual Media Services Directive (2018/1808), implemented in France, amends Article 11 of EU Directive 2010/13 on product placement to provide for additional information.

Programmes that contain types of product placement must meet at least the following requirements:

• Their content and scheduling (in the case of television broadcasting) or within a catalogue (in the case of on-demand audiovisual media services) must under no circumstance be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;
• They must not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;
• They must not give undue prominence to the product in question; and
• Viewers must be clearly informed of the existence of product placement by an appropriate identification at the start and end of the programme, and when the programme resumes after a commercial break, to avoid any confusion on their part.

(b) Sponsorship

The general rules pertaining to the identification of the content as an ad must be complied with.

The general principle of the prohibition of unfair commercial practices also applies.

Sports events held in France must not be sponsored by alcoholic beverage brands.

(c) Loyalty programmes

The rules aimed at protecting consumers, as set forth in the Consumer Code, must be complied with (eg, clear information must be provided to consumers; there must be an easy way to terminate registration to the loyalty programme).

8 Industry-specific regimes

8.1 What regulatory regimes apply to advertising in the following industries in your jurisdiction, and what best practices would you highlight? (a) Gambling (including lotteries); (b) Alcohol; (c) Tobacco; (d) E-cigarettes; (e) Pharmaceuticals (prescription and over-the-counter); (f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements); (g) Food; and (h) Financial products and services.

(a) Gambling (including lotteries)

Any advertising for gambling and state lotteries must include:

• a safeguard message against excessive or pathological gambling; and
• a reference to a system which provides information and assistance.

Such advertising is prohibited in audiovisual programmes, in the press and on websites aimed at underaged persons, so minors are especially protected.

The Law of 9 June 2023 on influencer marketing aims to tackle sports betting and gambling as follows:

• Influencers are no longer able to promote subscriptions for sports betting; and
• The promotion of money games is limited to platforms that technically restrict access to minors.

(b) Alcohol

A drink is considered to be an alcoholic beverage if it has an alcoholic strength by volume of more than 1.2%.

Direct or indirect propaganda or advertising in favour of alcoholic drinks is allowed only in limited cases, as provided by the Public Health Code, which specifies (Articles L3323-2 and following):

• a limited list of permissible media (eg, the press for adults, certain categories of radio stations at specific times and noticeboards or signs), which does not include television; and
• a limited list of objective information (eg, the degree of alcohol, the origin and components of the product, the name and address of the manufacturer, the modalities of the sale and consumption of the product, food and alcohol pairing).

Ads for alcoholic beverages must include the following health message: “Abuse of alcohol is dangerous for your health, intake moderately.” This message must be clearly legible and visible.

On radio channels, the following message must be broadcast: “For your health, beware of alcohol abuse.”

(c) Tobacco

Any propaganda or advertising, direct or indirect, in favour of tobacco, tobacco products or ingredients is prohibited. There is an exception for tobacco retailers. There is also an exception for the television broadcasting of motor sports events filmed in a country where the advertising of tobacco products is permitted (Article L3512-6 of the Public Health Code).

A health message must be featured on all tobacco product packets (Article L3512-22 of the Public Health Code).

Packets containing cigarettes, tobacco and cigarette papers must be neutral and standardised (Article L3512-20 of the Public Health Code).

(d) E-cigarettes

Direct or indirect advertising in favour of e-cigarettes (vaping products) is prohibited under French law (Article L3513-3 of the Public Health Code). Sponsorship operations whose purpose or effect is to advertise (directly or indirectly) vaping products are also prohibited.

Article 4 of the Law on Influencer Marketing provides that this ban also applies to influencers, who are strictly prohibited from directly or indirectly promoting cigarettes/vaping products online.

There are exceptions to this ban on advertising in favour of e-cigarettes. In particular, the ban does not apply to:

• notices relating to e-cigarettes/vaping devices and associated refill liquids which are displayed inside shops selling these products, provided that these ads are not visible from the outside; this means that any other form of advertising (eg, mats, pens, ashtrays) is prohibited; or
• marketing communications/advertising published by online communication services on a professional basis which are only accessible to businesses involved in the manufacture and distribution of vaping products.

(e) Pharmaceuticals (prescription and over-the-counter)

Consumer advertising in favour of medicines/pharmaceutical products that are dispensed on medical prescription and are reimbursed by the compulsory National Health Service is prohibited. The advertising of pharmaceutical products whose marketing authorisation prohibits or restricts the advertising of such products is also prohibited.

For other medicines/pharmaceuticals products (not subject to the ban above), prior authorisation (ie, an advertising visa) from the French Health Agency is required before the ad is published or broadcast. The French Health Agency will ensure that the ad:

• does not undermine the protection of public health;
• is not misleading; and
• complies with the drug's therapeutic strategy and marketing authorisation.

As a general rule, the information featured in the ad must be consistent with the information regarding the characteristics of the products provided in the drug's marketing authorisation application.

The ad must:

• clearly indicate that the product advertised is a medicine; and
• feature at least the following information, which must objectively present the medicine/pharmaceutical product:
• • the designation of the medicine and its common name;
  • essential information for the proper use of the medicine;
  • an explicit recommendation to carefully read the instructions presented in the package leaflet or on the packaging; and
  • a warning message mentioning that the advice of a pharmacist may be needed and, if symptoms persist, a recommendation to see a doctor (eg, “All medicines entail risks, talk to your chemist”).

(f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements)

In France, therapeutic products (eg, food supplements, vitamin supplements) are subject to the regulations that apply to food products. They may be marketed outside pharmacies. Therefore, the advertising of therapeutic products must comply with EU Regulation 1169/2011 on the provision of food information to consumers. In particular, the designation ‘food supplement' must be featured on the label.

All nutrition and health claims featured in ads for therapeutic products must also comply with EU Regulation 1924/2006 on nutrition and health claims made on food. Such claims must not mislead consumers as to the efficiency of the therapeutic products advertised. Therefore, ads for therapeutic products must not:

• attribute to these products any properties for preventing, treating or curing a human disease, or make any reference to such properties;
• refer to the progress or extent of weight loss;
• refer to recommendations issued by a doctor or a specific health professional; or
• contain any statement or suggestion that a balanced and varied diet is an insufficient source of nutrients in general.

(g) Food

Ads for food products must not create confusion for purchasers or consumers as to the characteristics of the food products (eg, nature, identity, qualities, quantities, content, durability, origin and manufacturing/sourcing process).

Health messages must be included in ads for manufactured food products and drinks:

• on television, cinema or radio;
• in newspapers;
• on posters and marketing flyers for supermarket distribution; and
• on the Internet (Article L2133-1 of the Public Health Code).

The messages read as follows:

• “For your health, eat at least five fruit and vegetables per day.”
• “For your health, practise sport regularly.”
• “For your health, do not eat food that is too rich, too sugary or too salty.”
• “For your health, avoid eating outside mealtimes.”

(h) Financial products and services

Article L533-12 of the Monetary and Financial Code sets out strict criteria for ads for consumer credit. For instance:

• the content must be accurate and not misleading; and
• aggressive practices are prohibited.

Consumer credit: All ads for consumer credit (except on radio) must include the following message: “A credit is binding and must be reimbursed. Check your reimbursement abilities before committing yourself.”

Mortgage loans: All ads must specify:

• the identity of the money lender (or the agent, where applicable); and
• the nature and purpose of the loan.

Additional information is required where the ad sets forth the interest rate or figures pertaining to the cost of the credit to be borne by the borrower, including:

• the interest rate and whether it is fixed or variable;
• the duration of the agreement;
• the annual percentage rate of charge;
• the total amount of the loan;
• the total amount owed by the borrower; and
• the amount and the total number of payments (payment schedule).

Investments: The Financial Markets Authority (AMF) continuously monitors promotional messages from financial intermediaries (eg, banks, investment advisers, management companies). The AMF adapts to changes in practices, such as the shift from traditional advertising online to social networks and mobile apps.

The French Advertising Self-regulation Agency (ARPP) has also issued three recommendations addressing the following products and services:

• atypical investment and related services;
• financial products and agreements with leverage effect (trading on the foreign exchange market), stock index, raw material and binary options; and
• financial and investment products and services.

On 7 September 2023, the AMF and the ARPP joined forces to design a training module for financial influencers. Their aim is to help professionalise commercial influencing, an activity which is now governed by law.

9 Enforcement

9.1 On what grounds can the following parties take action against ads in your jurisdiction? (a) Competitors; (b) Consumer associations; and (c) Members of the public.

(a) Competitors

Depending on the wrongful misconduct at stake, on grounds such as:

• unfair competition;
• misleading advertising/unfair commercial practices;
• copyright or trademark infringement;
• parasitism/passing off; or
• disparagement.

(b) Consumer associations

As long as the consumer association can demonstrate that the collective interest it is protecting has been violated, grounds such as:

• misleading advertising/unfair commercial practices;
• violation of consumer law (eg, in connection with the sale of a product); or
• violation of the loi Toubon (use of the French language in ads, commercial documents etc).

(c) Members of the public

See question 9.1(b).

9.2 What mechanisms are available to them to do so, and what are the pros and cons of each?

See question 4.1.

French Consumer and Competition Agency (DGCCRF) claims: Claims may be filed with the DGCCRF requesting that it launch an inquiry against the advertiser.

• Advantages: The decision of the DGCCRF will be published:

• on the DGCCRF's website; and
• if ordered by the judge, on the competitor's website (or in newspapers).

• Disadvantages:

• The plaintiff has no real control over the decision to be taken by the DGCCRF and the French prosecutor – for instance, if an amicable settlement is reached between the DGCCRF and the advertiser, the plaintiff (eg, the competitor) will not be part of it;
• The procedure usually lasts for a long time; and
• Minimal amounts are usually awarded, by the judge to compensate for the prejudice suffered.

Summary proceedings: Summary proceedings can be initiated seeking the swift discontinuation of an ad campaign. In summary proceedings, the misconduct must be obvious; otherwise, the judges will reject the claim and ask the plaintiff to file a claim on the merits of the case (in proceedings based on the merits, the judges will review the matter in depth, especially the evidence filed by the parties).

• Advantages: This is a fast procedure (usually less than a month between the date on which the writ of summons is filed and the date on which the decision is handed down).
• Disadvantages:
• • The evidence must be strong; and
  • Judges are reluctant to award monetary damages because they do not assess the merits of the case during the summary proceeding.

Proceedings on the merits: Proceedings on the merits may be filed before the civil/commercial courts – for example, seeking monetary damages. Usually, the plaintiff must evidence a fault, damage and a link between them. A violation of French law (eg, a false claim) is per se a fault.

• Advantages: Monetary damages may be awarded.
• Disadvantages:
• • The procedure lasts approximately one year or even longer, depending on the complexity of the dispute; and
  • Publication of the decision is seldom ordered by the judges.

French Advertising Self-regulation Agency (ARPP) Jury claims: A claim can be filed with the ARPP Jury requesting it to assess whether the ARPP's recommendations have been violated.

• Advantages:
• • The process is fast, lasting a few months, and in case of a serious breach an urgent proceeding may be implemented;
  • The procedure is handled by the Jury free of charge; and
  • There is a key procedural advantage because it is for the advertiser to prove that its advertising complies with the ARPP's recommendations (as opposed to what happens in court, where the plaintiff must evidence the misconduct).
• Disadvantages: The only sanction available is ‘naming and shaming' (publication of the decision on the JDP's website).

9.3 How does the procedure typically unfold and how long does it take?

See questions 4.2 and 9.2.

Usually, written arguments (through briefs) must be filed with the civil courts, with the exception of the commercial courts (this is not compulsory as the procedure is not based on written arguments, but on the arguments detailed during the hearing for the pleadings). In practice, however, the parties nonetheless tend to file written arguments before the commercial courts.

The deadline for submitting written arguments is determined by scheduling order or court ruling. Extensions of time are available; the duration of the extension is decided by the judge, depending on the reasons for the extension.

9.4 What costs are incurred?

Each party bears its own costs (except in the specific expertise procedure, where the losing party pays the expert's fees).

Exceptionally, however, the judge may order the losing party to pay the winning party's costs (including those incurred in pursuing the lawsuit); but usually, this is a nominal amount which does not cover the entirety of the costs borne by the winning party.

Thus, in France – unlike in other jurisdictions – the winning party does not recover its attorneys' fees, but only an amount decided by the judge, which is usually a fraction of those fees.

9.5 What defences are typically raised by the advertiser?

The issue for the plaintiff is to evidence its prejudice. For instance, a competitor will have to prove loss of customers, lost profits and so on. It must be ready to file figures – for instance, to show a drop in sales; but it must also be able to prove that the drop is due to the litigious act/ad, which may sometimes be tricky.

Advertisers usually try to prove that there is no direct link between the alleged wrongful misconduct and the losses allegedly suffered by the plaintiff – for instance, that the drop in sales arose from other factors (eg, other competitors could have affected its market shares; its market strategy was insufficient to convert prospects into customers).

9.6 What remedies are available?

See questions 4.2 and 9.2.

Punitive damages are not awarded in France.

9.7 Can the decision be appealed? If so, what is the process for doing so?

See question 4.3.

In civil and commercial procedures, appeals are heard by the courts of appeal.

The timeframe for a party to file an appeal is usually one month from the date on which the first-instance decision is served on that party. If a party is based in a French overseas territory, it is granted an additional one-month period in which to file the appeal.

Where a party is based in a foreign country, it is granted an additional two-month period in which to file the appeal (ie, three months from the date on which the first-instance decision is served on the party).

An appeal involves a complete rehearing of the matter. New evidence may be submitted.

While court costs are nominal, the parties must be represented by a lawyer, whose fees will depend on the extent of the work to be performed – in particular, the complexity of the file. Specialist counsel is not required, but is recommended, in order to handle the procedural steps before the court of appeal.

10 Trends and predictions

10.1 How would you describe the current advertising landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

Influencer marketing and greenwashing will remain hot topics.

Since the enactment of new legislation regulating the activities of social media influencers on 9 June 2023, the French Consumer and Competition Agency has established a team of agents dedicated to monitoring such activities.

Artificial intelligence (AI) is another important topic at both the European and French levels. On 16 May 2023, the French Data Protection Agency (CNIL) released its action plan regarding AI/chatbots. The action plan focuses on four key issues:

• understanding how AI systems work and their impact on individuals;
• enabling and overseeing the development of AI that complies with privacy laws;
• supporting innovative players in the AI ecosystem in France and Europe; and
• auditing and monitoring AI systems and protecting data subjects.

According to the CNIL, this action plan will also assist in the preparation for the implementation of the draft European AI regulation, which is currently under discussion.

11 Tips and traps

11.1 What are your top tips for companies that advertise their products and services in your jurisdiction and what potential sticking points would you highlight?

Ads for alcoholic beverages are strictly regulated in France.

The concept of parasitism/passing off (tort law) is sometimes used by French judges as a ground of sanction (when raised by a party) where the plaintiff does not have a copyright or a registered trademark.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.