Deceptive marketing practices: the practical guide for SME managers and CEO in France

Les deceptive marketing practices have become a priority area of control for the DGCCRF and a recurring reason for disputes between companies.
For an SME, a “simple” poorly calibrated marketing slogan or an ambiguous contractual clause can turn into a criminal offense, a heavy administrative penalty and expensive litigation with customers or partners.

What is a deceptive marketing practice?

Deceptive marketing practices are part of the larger category of unfair commercial practices, resulting from Directive 2005/29/EC transposed into French law in the Consumer Code.
Concretely, a practice is misleading when it alters, or is likely to alter, the economic behavior of the customer by giving him a false, exaggerated or incomplete image of your offer.

The applicable legal framework (Consumer Code and Criminal Code)

• The Consumer Code regulates unfair commercial practices and specifically prohibits deceptive practices (by action or by omission) in its articles relating to prohibited commercial practices.
• These practices constitute a Criminal offense, punishable by imprisonment and significant fines, supplemented by administrative sanctions that may be imposed by the administrative authority (DGCCRF).

Unfair commercial practices: the “parent” category

Directive 2005/29/EC establishes a general ban on unfair commercial practices with respect to consumers, by targeting two main categories: deceptive practices and aggressive practices.
A practice is unfair when it is contrary to the requirements of professional diligence and when it alters or is likely to substantially alter the economic behavior of the average consumer.

For an in-depth look at unfair commercial practices in their entirety, see This comprehensive guide for SME managers.

What is a deceptive marketing practice by action?

One deceptive marketing practice per action is based on positive information that is inaccurate, exaggerated or likely to create confusion (advertising, commercial arguments, presentation on a website, brochure, etc.).
It can also result from a staging or an overall presentation (highlighting a label, price, origin) that gives a false impression to the customer.

Concrete examples of deceptive practices by action

Some typical situations encountered in SMEs:

• On the substantial qualities of the product or service : advertise a product as “organic” or “made in France” when the raw material or manufacturing is in fact delocalized.
• On the expected results : promise that software “increases your sales by 30% in three months” without a serious basis, study, or clearly stated conditions.
• On the price : display a “crossed out price” or an exceptional discount calculated on a reference rate that was never really used by the company.
• On the identity or qualities of the professional : present yourself as a “certified expert”, “member of a professional order” or “approved by a public body” when this is not the case.

In case law, decisions penalize, for example, retailers who pretended to charge more competitive prices than the official network without specifying that this difference was due to a lower level of equipment of the product.

Jurisprudence and judgment of the judge

Jurisdictions are looking into whether the practice is likely to mislead the average customer, taking into account the overall presentation of the offer, advertising and contractual documents.
For example, the promise of “commercial participation”, which was supposed to greatly reduce the cost of renting photocopiers, was considered misleading, while the contract was drafted ambiguously to allow the lessor to never pay this participation.

What is a deceptive marketing practice by omission?

La deceptive marketing practice by omission results from the silence or lack of information on essential elements of the offer.
It is characterized when the company omits, conceals, or presents substantial information in an ambiguous or unintelligible manner, or when it communicates it too late.

Concrete examples of deceptive practices by omission

• Do not clearly inform about a duration of firm commitment or a tacit renewal, while it has a significant impact on the overall cost of the contract.
• Skip the silence warranty limitations or conditions for the implementation of services (paid installation not mentioned, mandatory additional costs, performance condition depending on a specific technical configuration, etc.).
• Failing to indicate that a “satisfied or refunded” offer is subject to restrictive conditions that are not included anywhere in the commercial message.

Information considered “substantial” includes in particular the main characteristics of the good or service, the identity and address of the professional, the price including all taxes, the terms of payment and delivery, as well as the possible existence of a right of withdrawal for the consumer.

Focus: digital communication and deceptive practices

Digital media (website, social networks, marketplace, e-mailing) are particularly scrutinized, and the legislator has provided for reinforced penalty ceilings when the crime is committed online.
The coherence between marketing discourse, legal notices, CGV/CGU and quotes then becomes a central issue in reducing the risk of reclassification into a misleading practice.

Deceptive commercial practices between professionals: what are the B2B specificities?

While the system has historically focused on consumer protection, case law recognizes the application of rules on deceptive commercial practices in certain relationships. between professionals.
The deceived professional can then act on the basis of commercial deception, in addition to the classical foundations (nullity of the contract, contractual or delictual liability).

Examples in B2B: rental, software, services

• A photocopier rental company promising a substantial reduction in rent through a “commercial participation” that it actually never intended to pay.
• Contracts for the supply of digital solutions promising unrealistic performances or savings compared to the real technical capabilities of the solution.

In these cases, the client SME can seek compensation for its damage and, sometimes, the nullity of the contract, if the consent has been vitiated by the deceptive practice.

Articulation with other commercial law mechanisms

Deceptive practices between professionals can be combined with:

• The rules on the Unfair competition (interference, imitation, confusion).
• The provisions on restrictive competition practices of the Commercial Code (significant imbalance, unrequited advantage, etc.).

The same commercial strategy can therefore be attacked from several angles, which increases the legal exposure of SMEs both to its customers and to its competitors.

Deceptive marketing practices: building blocks

To characterize a deceptive commercial practice, several elements must be combined.

The material element: a message or behavior likely to deceive

The material element lies in the content of the message (advertising, e-mailing, site, site, quotation, brochure, commercial speech) or in the behavior (staging a false liquidation, use of a non-existent label, etc.).
The texts expressly refer to information relating to the characteristics of the product, its price, the conditions of sale, the identity or qualities of the professional, as well as the existence of after-sales service or a guarantee.

The intentional element: is the intention to deceive necessary?

The crime of deceptive commercial practice is generally referred to as Formal offense, which does not necessarily require the demonstration of a demonstrated fraudulent intent on the part of the manager.
In practice, however, the repeated, organized or particularly advantageous nature of the practice for the company can be interpreted as an indication of a desire to deceive.

The impact on the economic behavior of the customer

It is enough for practice to be likely to alter the economic behavior of the average consumer or the reasonably prudent professional, without the need to prove that each customer was actually deceived.
It is this global approach that explains the severity of decisions with respect to advertisements that may create confusion with another property, another brand or another distribution network.

What are the 4 so-called abusive commercial practices?

In everyday speech, the expression “abusive business practices” often refers to the same set as unfair commercial practices.
At the legal level, EU law mainly distinguishes between two main families: deceptive practices and aggressive practices, each divided into several hypotheses.

The two main families: deceitful and aggressive

• Deceptive practices by action : false claims or presentation that gives an overall misleading impression.
• Deceptive practices by omission : silence or insufficient presentation on substantial information.
• Aggressive practices through harassment, coercion or unwarranted influence, for example insistent canvassing, threats of disproportionate consequences if the offer is not accepted, etc.
• Practices listed on a “black list” in the annex to the directive (e.g. false declarations about the nature of a product, advertising sales at a fictional loss, etc.), which are deemed to be unfair in all circumstances.

DGCCRF focus: control priorities

The DGCCRF particularly targets:

• The “barred prices” campaigns, promotions and sales,
• E-commerce, renewable subscriptions and “free trial” offers,
• The health, wellness, food, energy, and digital services sectors.

For an SME manager, this means that visible and massive commercial transactions must be subject to reinforced legal control before launch.

Deceptive marketing practices: concrete examples for SMEs

Common sectoral examples

• Retail/e‑commerce : display available stock when the product can only be delivered in the long term; announce a “free shipping cost” while discreetly increasing the unit price of the product.
• B2B services : promise quantified cost savings without a serious basis or mention of conditions; present a software solution as “compatible with all your systems” when certain integrations are in reality impossible.
• Real estate/construction : highlight compliance with specific standards (RT, energy labels) that are not actually achieved.

Example of a litigation scenario

An SME sells a subscription to a SaaS tool by putting forward a “non-binding” offer.
The CGV and the order form actually provide for a firm commitment of 24 months, with a penalty corresponding to all the monthly payments remaining due.
The customer, discovering these conditions during the first cancellation invoice, invokes a misleading commercial practice by omission and by action, requesting nullity and damages.

Deceptive marketing practices: sanctions

Les sanctions for deceptive marketing practices combine criminal penalties, administrative sanctions and civil consequences.

Criminal sanctions (Consumer Code and Criminal Code)

In general, the crime of deceptive commercial practice is punishable by:

• Up to 2 years of imprisonment.
• Up to 300,000 euros fine for natural persons ; the ceiling for legal entities can reach 1.5 million euros, with the possibility of a proportional increase up to a percentage of turnover or advertising expenses incurred.

When the practice is carried out via an online public communication service, some texts provide for higher ceilings, up to 5 years of imprisonment and 750,000 euros fine for natural persons, and 3.75 million euros for legal entities in the most serious cases.

Administrative sanctions and additional measures

In addition to or in place of criminal proceedings, the administrative authority may impose:

• Of administrative fines,
• THEProhibition to exercise or to manage a commercial or industrial company for a period of up to 5 years,
• Measures to publicize the decision (posting, publication on the internet).

For SME managers, the risk is therefore both financial, criminal and reputational.

Deceptive commercial practices: what are the civil consequences?

Beyond public sanctions, deceptive practices pave the way for civil actions from customers, competitors or business partners.

Nullity of the contract and return

If the deceptive practice has vitiated consent, the victim can request the Nullity of the contract and the return of the amounts paid.
This nullity can call into question the overall profitability of a commercial transaction, especially when it is reproduced on a large number of customers.

Liability and damages

Regardless of or in addition to the nullity, the victim can request compensation for all of his damage (losses, additional expenses, loss of opportunity, damage to the image, etc.).
Competitors can also act in the area of unfair competition by invoking the misleading nature of advertising or price positioning.

How to prevent deceptive commercial practices in your SME?

1. Audit your commercial materials and your website

An effective approach consists in having:

• Your site (product pages, FAQ, landing pages, landing pages, legal notices, terms and conditions, promotional banners),
• Your brochures, product sheets, emailing campaigns and commercial scripts.

The objective is to verify that all substantial information are correct, complete, updated and presented in a clear and visible manner, without any contradiction between marketing and contracts.

2. Legally frame your promotional operations

Each campaign (sales, Black Friday, launch offer, sponsorship, free trial) must be documented:

• Precise definition of reference price in case of reduction,
• Deadlines, conditions and limits (quantities, duration, target audience),
• Consistency with the CGV and the conditions appearing on the quotes.

Prior validation by a lawyer makes it possible to secure these transactions, especially when the volumes or the financial challenges are significant.

3. Train your sales and marketing teams

The risks of deceptive practices often lie at the interface between marketing and legal discourse.
Training your teams on what they can promise, on the mandatory information and on the formulations to avoid is an essential lever to reduce the risk of drift.

Example of a clause to frame commercial communication

Of course, to be adapted to each activity, but for illustrative purposes, a clause inserted in your CGV or in a B2B contract can take the following form (structure inspired by current practices in commercial contracts):

“The Customer acknowledges that the information communicated by the Company, whether it appears on the Site, in commercial documents or in any other communication, has the sole purpose of presenting in a general manner the Products and Services offered. They do not constitute specific contractual guarantees, except when they are explicitly included in the Contract or in an accepted quotation. The Customer is invited to request any additional useful information before the conclusion of the Contract.”

This type of clause is not enough to neutralize a misleading practice, but it makes it possible to clarify the scope of contractual commitments and to reduce certain abusive interpretations.

Focus: the role of the DGCCRF in the fight against deceptive commercial practices

Control and investigation missions

The DGCCRF is the administration in charge of the Repression of fraud and the control of unfair commercial practices.
It can carry out checks on documents and on site, request the communication of documents, make test purchases, or analyze advertising campaigns and websites.

Possible consequences of a DGCCRF check

At the end of an audit, the DGCCRF can:

• Addressing a warning or a compliance injunction,
• Imposing an administrative fine,
• Send the file to the public prosecutor's office for criminal proceedings to be initiated.

A compliance strategy (audit, correction of materials, updating of CGV/CGU, team training) is an important argument for mitigating the consequences of an audit.

FAQ: everything you need to know about deceptive marketing practices

What is a deceptive marketing practice?

One deceptive commercial practice is a behavior or message from a company that provides false, ambiguous or incomplete information, or that omits essential information, in order to alter the economic behavior of the customer.
It may result from an advertisement, a commercial speech, a presentation on a website or from ambiguous contractual clauses.

What are the most common deceptive marketing practices?

Some of the most common practices include:

• False claims about the quality, origin or composition of products;
• artificial price cuts;
• “Non-binding” offers that hide a minimum duration or a tacit renewal;
• The promises of unrealistic performances.

What are the 4 so-called abusive commercial practices?

In current discourse, the aim is often to:

• deceptive practices by action;
• deceptive practices by omission;
• Aggressive practices through harassment or coercion;
• The practices included in the “black list” in the annex to the directive (false declarations, fictitious sales, misleading ads, etc.).

All fall under the category of unfair commercial practices and are forbidden.

Misleading commercial practices: what concrete examples?

Some typical examples:

• Announce a product as “100% natural” when it contains synthetic additives;
• Highlight a “-50%” discount calculated on a price that has never been used;
• Offer a “satisfied or refunded” offer without clearly presenting the conditions;
• Falsely affirm a certification, a label or a partnership with a known brand.

What are the penalties for deceptive marketing practices?

Deceptive marketing practices constitute a Criminal offense punishable by up to 2 years in prison and a fine of 300,000 euros for natural persons, with higher ceilings for legal persons.
Administrative sanctions (fines, prohibition to practice, publication of the decision) may also be imposed, as well as civil consequences (nullity, damages).

Misleading commercial practices and the Criminal Code: what is the link?

The rules for the suppression of deceptive commercial practices are mainly found in the Consumer code, but some additional sanctions refer to the general punishment mechanisms of the Criminal Code (in particular for prohibitions on the practice of and measures against legal persons).
However, the offence remains a specific economic offence, distinct from deception in the classical sense of the Criminal Code.

What is an unfair commercial practice?

One unfair commercial practice is a practice that is contrary to the requirements of professional diligence and is likely to substantially alter the economic behavior of the average consumer.
Misleading and aggressive practices are the two main categories of unfair practices covered by Directive 2005/29/EC and the Consumer Code.

Deceptive marketing practices and case law: why is it important?

La jurisprudence specifies very concretely the border between acceptable and illegal, taking into account the evolution of marketing practices and digital media.
It makes it possible to identify risky formulations, contested contractual arrangements and sectors that are particularly exposed (long-term rentals, software, e-commerce, financial services, etc.).

Do deceptive commercial practices apply between professionals?

Yes, deceptive marketing practices rules can be invoked in some relationships B2B, especially when a professional deceives another professional through commercial speech or ambiguous contractual documents.
Decisions have thus recognized the responsibility of a service provider who had organized a commercial mechanism that made it practically impossible to benefit from an advantage presented as a decisive factor in the professional client's decision.

What to do if your SME is accused of deceptive commercial practices?

In the event of a complaint (customer complaint, formal notice from a competitor, DGCCRF check):

• It is recommended to immediately gather all the documents (advertisements, quotes, terms and conditions, email exchanges, commercial scripts);
• To carry out a legal analysis to assess the criminal, administrative and civil risk, then to consider a strategy (compliance, transaction, negotiation, legal defense).

The support of a lawyer in commercial contracts and commercial litigation makes it possible to best calibrate the response and to secure the adjustments to be made.

Regulated matter: the importance of legal assistance

The regulation of deceptive marketing practices is part of a complex set (consumer law, commercial law, criminal law, European law, abundant case law) in constant evolution.
The challenges, for an SME manager, are financial, criminal and reputational: a marketing campaign or a poorly calibrated clause can trigger checks, sanctions and long and expensive litigation.

In this context, recourse to the advice of a solicitor is essential for:

• Anticipate risks in your contracts, CGV/CGU, advertising materials and promotional campaigns;
• Implement a compliance strategy adapted to your sector and your practices;
• Assisting you in the event of a DGCCRF check, formal notice or litigation, whether against a customer, a partner or a competitor.

Article written by Guillaume Leclerc, lawyer in commercial contracts and commercial litigation in Paris.

‍