In a decision that has regrettably gotten buried in the flurry of recent public health news, on 4 March 2020, France’s High Court (Cour de cassation) issued an opinion restricting the right of companies to publish and share scientific studies that cast doubt on the safety of competitors’ products where those studies do not have a sufficient scientific basis.

In the case, a manufacturer of stone countertops shared via its website and on various social media platforms a study, carried out on the manufacturer’s behalf by a private laboratory, suggesting that countertops made of quartz agglomerate can be dangerous to consumers’ health. The manufacturer also contacted a consumer magazine making similar claims.

In response, an industry group representing producers of quartz agglomerate sought a preliminary injunction against the manufacturer, claiming that the manufacturer’s public statements constituted unfair competition (dénigrement commercial).

The industry group’s argument, which ultimately persuaded France’s High Court, was that the study cited by the manufacturer established, at most, that airborne particles from quartz agglomerate could be harmful to the health of people who inhale or ingest them. The study did not address whether, in the absence of particulate matter, merely placing food products on a countertop made of quartz agglomerate could cause adverse health effects. Given the lack of reliable evidence for the defendant’s claim, it constituted a form of unfair competition for the defendant to cite the study as evidence that consumers’ health could be placed at risk by using quartz agglomerate countertops.

This decision should remind companies to be careful before sharing information via social media if the information could be potentially adverse to competitors. Doing so can give rise to lawsuits seeking damages or an injunction, even if the information shared is true. To the extent that a company anticipates sharing or publishing information adverse to a competitor, careful attention should be paid to the factors French courts consider when determining whether an unfair competition claim can lie: first, whether the public has an interest in the information; second, whether there is a sufficient factual basis for the assertion; and third, whether the means by which the information is shared is measured and appropriate (in the High Court’s words, the message must be expressed “avec une certaine mesure”).

Cass. comm., 4 mars 2020, no 18-15.651.

Johanna SCHWARTZ MIRALLES

Attorney (US)
Johanna is an American attorney and a graduate of Harvard Law School. Her legal practice spans a broad range of fields, including international commercial contracts, anti-corruption laws, compliance programs, whistleblower protections (Sapin II), business litigation and arbitration.

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Benoît LAFOURCADE

Co-Founder, Partner & Solicitor -
International Corporate Law & Litigation

Benoît, Delcade’s co-founder, is a Paris Bar lawyer and UK Solicitor (London).

Advisor for various embassies, working closely with the firm's team, Benoît offers his services to French and foreign companies requiring cross-cutting strategic and legal support in business law.

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