France

Relevant legislation or guidelines

• Unfair commercial practices/Misleading advertising (Article L.121-1 to L.121-7 of the French Consumer Code);
• Unfair competition (Article 1240 of the French Civil Code).
• Law No. 2020-105 on the fight against waste and the circular economy (so-called “AGEC law”);
• Law No. 2021-1104 of 22 August 2021, on combating climate change and strengthening resilience to its effects (so-called "Climate and Resilience law"). It adds various articles in the French Environment Code, including a whole chapter on supervision and regulation of advertising (see notably Article L229-68 of the French Environment Code on the use of the term "carbon neutral" in advertising);
• Green claims guidelines issued by the DGCCRF (General Directorate for Competition, Consumer Affairs and Fraud Control) and the CNC (National Consumer Council);
• Non-binding recommendation “Sustainable development” from the Advertising Professional Regulatory Authority (“ARPP”).

Is there any upcoming relevant legislation or guidelines?

No.

Who are the responsible authorities or bodies?

• ARPP (Advertising Professional Regulatory Authority):Self-regulatory body
• DGCCRF (General Department of Competition, Consumer Affairs and Fraud Control)
• Criminal courts
• Civil courts
• Commercial courts

What are the enforcement measures?

• ARPP: the ethical jury can only give opinions and deal with cease and desist requests (no monetary penalties).
• DGCCRF: may order injunction and fine up to €3 000 for an individual and €15 000 for a company / file a criminal complaint
• Criminal courts: may order an injunction and fine up to two years imprisonment and a fine of up to Euro 300,000 or 10% of the annual turnover or 50% of the costs incurred to create the ad.
• Civil courts: may order injunction, removal from the market, damages compensation.

Who can pursue infringements?

• Competitors
• State Bodies (including ARPP)
• Individuals (not necessary competitors) and consumer (or consumer association)
• DGCCRF
• (sometimes: departmental directorate for population protection (DDPP) or the departmental directorate for social cohesion and population protection (DDCSPP))

What are the general rules of thumb for green claims?

• The use of the terms “biodegradable", "environmentally friendly" or any other equivalent terms is prohibited on products and packaging that are new and directed at consumers;
• Green claims shall not be misleading or unsubstantiated;
• Whether or not a claim is misleading is assessed based on the subjective perception of the public to which the act of communication is addressed.
• Claims should be true and accurate, without exaggerating;
• ARRP Guidelines:

- "2.1 Advertising must not mislead the public about the reality of the advertiser's actions or the sustainability attributes of its products”;
- “2.2 Advertisers' actions and product attributes in this area must be meaningful to make a claim";

• An advertiser who states that a product or service is "carbon neutral", "zero carbon", "with a zero-carbon footprint", "climate neutral", "fully offset", "100% offset" or uses any wording of equivalent meaning must provide specific evidence of carbon neutrality;
• While prohibiting the use of general green claims, AGEC law introduced an obligation to inform consumers about the environmental qualities and characteristics of the products (including the incorporation of recycled material, the use of renewable resources, sustainability, compostability, reparability, possibilities for re-use, recyclability, the presence of hazardous substances, precious metals or rare earth metals, traceability and the presence of plastic microfibers). Each environmental quality or characteristic has been defined by decree and targets specific categories of products.

Do green claims need to be substantiated by evidence?

• The Climate and Resilience law of 22 August 2021 introduced strict obligations in this respect: for example, advertisers claiming that their product or service is carbon neutral or has no negative impact on the climate must provide specific evidence of carbon neutrality (see new article L. 229-68 of the French Environment Code);
• If used in information documents supplied with the products (providing that it cannot be considered as packaging), marketing materials or advertising, the business operator should be able to evidence that the green claim is true. Such evidence is usually examined during a judicial or administrative proceeding.