France: Complaint by a consumer association against Back Market regarding the display of its prices

The price of renewed devices is displayed by comparing it with the price of the same new product.

However, since the entry into force on May 28, 2022 of new provisions in local consumer law reflecting the Omnibus Directive, online sellers can carry out online pricing comparisons of products, mainly in the context of promotions and in compliance with strict rules. In particular, when advertising a price reduction, the reference price must correspond to the lowest price charged by the seller over the last 30 days[1].

In the present case, the association considers that the comparison constitutes a misleading commercial practice. From its analysis, such comparison cannot fall within the legal framework imposed on promotions since Back Market is comparing two different products (renewed VS new). The consumer would be misled into thinking it was a promotion because of the crossed-out price display.

Back Market defended itself from making consumers believe that promotions were involved and relied on a joint recommendation from the Medef (an employer’s organisation) and the DGCCRF (the French authority notably in charge of the consumer protection), under the terms of which a comparison between the reference price of a new product and the price of a second-hand product would be authorised if the consumer was clearly informed.

Finally, Back Market is also accused of infringing (i) the French Consumer Code in respect with pre-contractual information on service fees and commercial guarantees, and (ii) the recommendations of the CNIL in the light of GDPR regarding the cookies on the website, which the French start-up firmly refutes.

[1] Article L112-1-1 of the Consumer Code