French guidance on marketing limitations for food products

Theses guidelines are subject to change or development in the light of practices noticed by the DGCCRF or brought to its attention by economic players.

The main developments notably concern:

• The limitation in value:

The guidance sets out a list of commercial offers that fall within the scope of the framework of the Ordinance No 2018-1128 of 12 December 2018 (i.e. cumulated promotional benefits, if any, for a given product may not exceed 34% of the selling price to the consumer or an equivalent increase in the quantity sold) in terms of value, such as (i) offers with the announcement of a numerical price reduction (e.g. “X% off”); (ii) offers with an increase in quantity offered (of the type “of which X% offered” or “plus X% offered” or “2+1”) and (iii) discount coupons granted by suppliers on a given product (vouchers, coupons, or refunds after sending the proof of purchase to the supplier – e.g. “X cents deducted” or “X cents refunded”). In the case of a product carrying a deferred coupon allocated to a given product, the verification of the ceiling in value of the promotions will be carried out on the price of the product on which the reduction relates.

The guidelines also provide a list of commercial offers which are not included in the scope of the above-mentioned framework such as pricing practices presented as advantageous for the consumer without announcements of numerical price reductions but with literary announcements such as “shock price” and “low price” and promotional benefits relating to perishable products where there is a threat of rapid deterioration, provided that the promotional advantage is not advertised or announced outside the point of sale.

• Guidance on the prohibition of the French term “gratuit” in promotional offers for food products

• Entry into force: the DGCCRF confirms that these provisions are applicable since 2 November 2018 as they have not been accompanied by transitional provisions or specific implementing measures to ensure their gradual implementation or deferred entry into force.
• Food products concerned: the text is drafted in such a way that it reflects the legislator’s intention to prohibit the use of the term “gratuit” for all food products (foodstuffs and pet products).
• Terms whose use is prohibited: as these provisions are strictly enforced, only the use of the word “gratuit” is prohibited. Hence, it seems that derivative or synonymous terms, such as “offered”, may be freely used by operators.
• Definition of marketing and promotional tools: the law targets the use of the term “gratuit” as a “marketing and promotional tool”. The prohibition therefore applies to any form of communication and to any support using the word “gratuit” with the aim of influencing consumers’ purchasing behavior. Hence, the prohibition applies to the mention “gratuit” in a promotional catalogue, on the packaging of a food product or on advertising at the point of sale.
• Sales operators concerned: sales operators, within the meaning of the provisions of the second paragraph of Article L441-2 of the French Commercial Code, must be understood as all professionals offering food products for sale to other professionals or consumers. Consequently, in accordance with Article 121-3 of the French Criminal Code, it will be up to the judge to establish whether or not the perpetrator has voluntarily committed an offence, in particular taking into account the means at his disposal, and, if necessary, to impose the corresponding fine of up EUR 15,000.
• Methods of control by the DGCCRF: the administrative authority will take into account the special circumstances and in particular the companies’ good faith, in accordance with the doctrine of the service when implementing new regulations. Although the ban on the use of the word “gratuit” has been in force since 2 November 2018, the fact that packaging bearing this wording was manufactured before that date may, for example, be taken into account by the DGCCRF.