French Product Liability Law: Towards a Pro-Plaintiff System

By Rouhette, Thomas; Gallage-Alwis, Sylvie | Defense Counsel Journal, July 2014 | Go to article overview

French Product Liability Law: Towards a Pro-Plaintiff System


Rouhette, Thomas, Gallage-Alwis, Sylvie, Defense Counsel Journal


EUROPE is generally regarded as a place where exposure to damages is relatively low and "seen as place where cases are decided on their legal merits, without a lot of theater".1 Unfortunately, some European jurisdictions tend to singularize themselves by drifting away from traditional principles of civil liability. Among those, France has become more and more challenging for manufacturers, its civil liability system becoming as unwelcoming for corporations as its tax and employment regimes.

In addition, the past three years in France have been characterized by an increase in the number of warnings against potentially hazardous substances to human health and the environment in consumer products or the workplace. The French public has been targeted by a significant number of headlines that draw attention to scientific reports condemning substances. Media reports have linked alleged dangers to pesticides, diesel particles, GMO, asphalt, phthalates or Bisphenol A, among others.

Industry has been slow to react, while plaintiffs' associations, on the other hand, have been quick to emerge and are very active in seeking to obtain bans or limitations from the French government, which in turn is keen on granting them on the "precautionary principle". Over the past couple of years, French authorities have been under attack as a result of several health "scandals," accused of not taking measures quickly enough. The result is that these same authorities are now (too) proactive in banning substances and imposing new rules on manufacturers.

For instance on June 14, 2012, the French National Agency for the Safety of Medicines and Health Products ("ANSM")2 issued a decision requesting the recall and sudden prohibition of cosmetic products containing chloroacetamide.3 The ANSM explained that this prohibition was a precaution until the European Union ("EU") Commission had made a decision on this substance. Less than a year before, the French National Assembly voted against the use of parabens, alkylphenols and phthalates.4 In the same line, France is one of the first Member States of the EU to ban the use of Bisphenol A in certain children's products, and as of January 1, 2015, in all food packaging.5 Another exception in France is the vote by the French National Assembly to prohibit a corn GMO manufactured by Monsanto on and after April 15, 2015.

Besides the increasing regulatory burden, which can sometimes be fairly unpredictable, the legal regime around potentially hazardous substances has suffered from a change in civil liability and product liability rules. Indeed, the control of the use of potentially hazardous substances seems to be governed by the will of the French authorities and courts to reassure the public no matter what.

Historically, product liability arose by case law based on the general law of obligations, in particular, civil tort liability. Liability implied a fault of the manufacturer in the design or manufacture of a product, a loss, usually bodily injury, and a causal link between the fault and the alleged loss. The purpose of liability was to compensate the user for the loss sustained due to the latter's exposure by the manufacturer to an established danger.

French case law, as described in this article, has progressively led to a regime of purely objective (strict) liability, through (i) the disappearance of the concept of fault, (ii) the dilution of the causal link, and (iii) an overly favorable regime for plaintiffs concerning the demonstration of their alleged damage.

As discussed in Section I with respect to the concept of fault, the disputes relating to the use of asbestos, which involve both liability law and employment law, are particularly topical. Companies are currently required to compensate all sorts of losses relating to asbestos, including for plaintiffs who are perfectly healthy, based on anxiety (which in the United States may be styled "emotional distress") that one day they will develop an illness, even though the majority of these companies lawfully used asbestos in their manufacturing sites in full compliance with the rules that were applicable at the time. …

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