Masks against a loyalty card ... Is it legal?

• Since May 4, supermarkets have been allowed to sell masks, and some brands have chosen to make their sales conditional on holding the loyalty card or purchasing other products.
• In New Aquitaine, customers who left the cart full, but without a mask, denounced these practices on social networks or reported them to consumer associations.
• 20 Minutes investigated whether the law allows distributors to reserve the sale of masks as a priority to certain customers rather than others. According to 60 million consumers, the practice is illegal in France.

Evidence by shovel in New Aquitaine, from Lot to Charente-Maritime. Whether in La Rochelle or Villeneuve-sur-Lot, consumers scratch Carrefour, Leclerc and Intermarché, who have chosen to make the sale of masks conditional on holding a loyalty card, or even on the purchase of other products. Relayed by consumer associations who denounce “illegal practices”, these testimonies quickly reached the ears of the directions of the signs pointed out. First target, Intermarché quickly reacted by the voice of its president, Thierry Cotillard, and assured France Info that this operation had lasted "only three days". This before May 4, the date on which the brands were authorized to sell their stock of surgical masks.

However, the testimonies continue to rain. In Gironde, near Blaye, customers without loyalty cards assured last week that they could not get a mask when they arrived in their Intermarché. Others, regulars and holders of sesame seeds, were surprised not to have received the famous email indicating a schedule to withdraw the precious protection against the Covid-19 at the point of sale.

So I tried to book masks at # intermarché @mousquetairesfr, here is the result at 7am ... pic.twitter.com/aSZaz3QADY

At Intermarché 1 box from 50 to 29.54 €. Reserved in priority for loyalty card holders. 20% vat (Monday May 4). At Carrefour, lot of 5 packed in freezer bags (of their brand of course) with a blank label. 10 max per customer. pic.twitter.com/Nh1RNb95tv

Finally, in Villeneuve-sur-Lot, a client of a Leclerc who had just filled "a caddy at 250 euros" said she was "frightened", this Monday, not having been able to leave the store with a mask, fault loyalty card. In Bidart (Basque Country), Intermarché customers should still have presented their loyalty card at the end of last week.

Subject to article L121.11 of the Consumer Code

"We gather new testimonies every day," explains Lionel Maugain, colleague of 60 million consumers who quickly denounced these practices. These customers must absolutely continue to report these abuses on the Signal Conso platform, to consumer associations and even to the repression of fraud. "

The journalist evokes abuses because it turns out that these "two phenomena that are the refusal to sell a mask to non beneficiaries of a loyalty card or the obligation to buy other products to obtain protection" are two practices which, according to consumer protection associations, fall under article L121.11 of the Consumer Code. "We are clearly on a" refusal to sell "as specified in this article, details Lionel Maugain at 20 Minutes . It is effectively prohibited to refuse a consumer the sale of a product or the provision of a service, unless a legitimate reason is advanced. "

"Epiphenomena" according to Intermarché

"This operation did not last long and was launched with the sole aim of avoiding crowds in stores and respecting barrier gestures," said Intermarché on Wednesday, which, according to a press release published on May 2, has 50 million single-use masks delivered, sold in boxes of 50 [or one million boxes for its 2,100 Intermarché and Netto stores]. “Today, we still avoid putting masks on the shelves to avoid traffic jams, knowing that, since May 4, everyone can order masks via our platform and pick them up at the store. ", Indicates at 20 minutes the brand, which had sent an email booking masks to two million holders of a loyalty card. According to Thierry Cotillard, more than 300,000 people responded and 15 million protections were thus sold to loyal consumers.

According to Intermarché, if "there are still problems", they are only "epiphenomena" linked to "delays in deliveries" or to the management of certain points of sale "by independent business leaders". On the other hand, Carrefour assures 20 Minutes that the national instruction was not to "condition the sale of masks to the holding of a loyalty card or to the purchase of products in stores". Again, the cases reported on social networks or collected by 20 Minutes  would only be linked to local marketing initiatives. "We had a case in the Orne this weekend and we called the brand to remind it of our policy," says one at Carrefour.

"There is clearly unequal treatment"

Reached by phone, Me Pierre-François Divier, lawyer who has already rubbed shoulders with the defense of consumers, is more cautious about the illegality of these commercial practices. “Right now, the texts are changing at incalculable speed. It's a bit vague. The sale of masks in supermarkets was prohibited a few days ago, so discussing the legitimate reason for a refusal to sell seems to me to be still complicated, ”says the lawyer. Especially since the "privilege operations" to which loyalty cards give entitlement are not illegal.

At # Intermarché you need a loyalty card to reserve your masks. It's not pretty pretty all that. # COVID__19 pic.twitter.com/eWvf2Uv4w6

“It's excessive, in turn, Me Elsa Raitberger, specialist in consumer law. We are on a sanitary product whose sale cannot be conditioned or be subject to a promotional operation ”. “Evoking a lack of stock or a privilege offer is not a legitimate reason and to impose a sale linked to another product is illogical in the case of the mask which is self-sufficient. All this is illegal, we are clearly on fraud ”, continues the lawyer, who recalls that the obligation to subscribe to a loyalty card also raises the question of the protection of personal data.

Read our file on the Covid-19

Ten days after the arrival of masks in supermarkets, customers continue to denounce rationed sales and the reservation of sanitary protections which have become essential for loyal customers… or those who know how to place an order on the Internet. “There is clearly an unequal treatment. Everyone admits it, even the Federation of Commerce. It is regrettable in times of health crisis, "says Lionel Maugain, who recalls that" tied or even forced selling is prohibited in France ".

When asked, the Directorate General for Competition, Consumer Affairs and Fraud Prevention (DGCCRF) has still not answered the 20 Minutes questions .

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