COVID-19: price controlling of single-use surgical masks in France

For several months now, the world has been facing an unprecedented epidemic and France has not been spared (it is currently the second largest source of infection in Europe). The SARS-COV-2 coronavirus is mainly transmitted by air via respiratory droplets.

It is in this context that the French Minister of Solidarity and Health (Ministre des Solidarités et de la Santé), Mr. Olivier Véran, has made various recommendations for the wearing of masks, in particular an obligation to wear a mask in public transport, in schools, nurseries and in professional environments where it is not possible to respect “barrier gestures”.

Masks have been the subject of much discussion since the beginning of the SARS-COV-2 epidemic. Indeed, initially, it was their shortage that was in the spotlight. There was a lack of stock in hospitals as well as in medical analysis laboratories, EHPADs and retail outlets.

In the context of a *"decontainment"* from 11 May 2020, the scientific council recommended, on 24 April 2020, that everyone wears masks in public areas.

Following the publication of the recommendations concerning the wearing of masks, the Ministry of Solidarity and Health submitted a report to the Prime Minister on the selling price of single-use surgical masks.

In this report, it states that the exit strategy from confinement includes, among other measures, for disposable masks to be made available to the general public in large and medium-sized stores.

As the announcement of this measure has led to a massive reaction in the purchase of masks, there has also been significant and sudden increase in the selling price of masks in certain points of sale (pharmacies) or online sales, as was the case a few weeks ago for hydroalcoholic gels.

It is in this context that the Ministry of Solidarity and Health, through the application of Article L 3131-15 of the French Public Health Code, was asked to take temporary measures to regulate the price of single-use surgical masks.

This is therefore a new exception to the principle of free pricing and free competition in France, permitted by Article L. 3131-15 of the French Public Health Code, which provides: "In territorial districts where a state of health emergency is declared, the Prime Minister may, by regulatory decree issued on the basis of a report from the Minister responsible for health, for the sole purpose of guaranteeing public health [...] 8° Take temporary measures to control the prices of certain products which are necessary to prevent or correct the tensions observed on the market for certain products; the National Consumer Council shall be informed of the measures taken to that end".

It is already under the visa of this article that Decree No. 2020-293 of 23 March 2020, prescribing the general measures necessary to deal with the covid-19 epidemic in the context of the state of health emergency, had set caps on the price of hydroalcoholic gels or solutions.

Decree No. 2020-506 of 2 May 2020, supplementing Decree No. 2020-293 of 23 March 2020 prescribing the general measures necessary to deal with the covid-19 epidemic in the context of the state of health emergency provided, in turn, for caps on retail and wholesale prices of surgical masks.

Thus, the retail price of surgical masks may not exceed 95 euro cents including all taxes per unit. The wholesale price is set at 80 euro cents exclusive of tax per unit.

The Directorate General for Competition, Consumer Affairs and Fraud Control (Direction générale de la concurrence, de la consommation et de la répression des fraudes - DGCCRF) specified in its question/answer on the price control of hydroalcoholic solutions and gels that "no professional will be prosecuted for reselling these products at a loss. On the other hand, a professional who has resold these products at a price higher than the purchase price may be sanctioned for non-compliance with the price control". Consequently, no one may be prosecuted for reselling a hydroalcoholic gel or solution "at a loss", given the price control framework for these products. By analogy, this solution adopted by the DGCCRF for hydroalcoholic gels and solutions seems transposable to masks.

What about "general public" masks, ie textile masks with guaranteed filtration and for the most part washable and reusable several times: these masks are not affected by the sales price control. However, the DGCCRF has indicated that their selling prices will be monitored to ensure that there are no unjustified increases that would penalize consumers. The DGCCRF specifies that this monitoring will be carried out "through price recording and by following up on reports from consumers or consumer associations associated with this process using the SignalConso platform”. This very recent platform was launched at national level in February 2020 by the DGCCRF. It is an alert system for reporting difficulties in the field of consumption and obtaining advice for action.

Read this article in French here.

See our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.