Retouched Commercial Photographs Of Models: How Will France Impose Transparency To Try & Fight Food Disorders?

Author:Ms Caroline Bouvier (Bernard - Hertz - Béjot) and Michel Béjot (Bernard - Hertz - Béjot)
Profession:Global Advertising Lawyers Alliance (GALA)

By October 1, 2017, the mention "retouched photograph" will have to be presented with commercial photographs of models whose body appearance has been refined or thickened ; this requirement aims at fighting anorexia and bulimia.

Description of the requirement The obligation to have a wording "photographie retouchée" or "photo retouchée" (i.e., "retouched photograph" or "retouched photo" - the "Message") presented with photographs featuring models whose body appearance has been retouched has been inserted in the French Health Code by an Ordonnance dated April 14, 2016.

A decree dated May 4, 2017 (the "Decree") provides that, starting on October 1, 2017, the Message must be presented in an accessible and visible way and must be clearly distinguished from the remaining part of the advertising message.

The presentation of the Message must comply with self-regulatory rules, in particular with the Recommendation "Notes and Overlays" issued by the French self-regulatory advertising organization1.

As a general guidance under this Recommendation, the message must appear :

in a horizontal position, in a sufficient size (in light of the size of the whole ad), in fonts which permit an easy reading. The font does not have to be the same in all the advertisement, in a color which contrasts with the one used for the background, with fonts normally spaced. The media/ad concerned by the requirement 2.1 A broad list of media

The requirement applies to photographs destined to be used for commercial purposes and inserted in advertising messages broadcast, in particular, in billboards, online public communications2, press, in advertising/commercial correspondences destined to consumers and in ad fliers destined to the public.

The advertiser must ensure the compliance of the obligations set forth in the Decree. The advertiser must, in particular, check whether or not the images/photos that it purchases (directly or through intermediaries) have been modified to refine or thicken the silhouette of the model.

The obligation covers in-store images, prints (catalogs, leaflets...etc.), billboards and online public communications (websites, social network platforms containing social posts...etc.).

2.2 The exclusion of editorial images

The editorial images in magazines or newspaper are not explicitly excluded by the Decree, but the reference to "advertising messages" in the Decree, as well as the reference to "ads", by the ARPP's press release, dated May 23...

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