A non-food product that can be confused with a foodstuff because it resembles one may be subject to restrictions on its marketing in the EU if it endangers the health and safety of the consumer, the EU Court of Justice ruled on Thursday 2 June (Case C-122/21).
A reference for a preliminary ruling was made to the Court of Justice in a dispute between the Lithuanian authorities and Get Fresh Cosmetics Limited. The Lithuanian company had been forced by the authorities to withdraw from the national market several types of bath bombs that looked like foodstuffs and therefore posed a risk to the safety and health of consumers, especially children.
The Lithuanian judicial authority asked the Court of Justice of the EU for clarification on the interpretation of Directive 87/357/EEC (approximation of the laws of the Member States concerning products which, appearing to be other than they are, endanger the health or safety of consumers) in order to determine whether it must be shown that putting products in the mouth which look like foodstuffs but are not can entail risks to health or safety.
The Court of Justice of the EU confirms that the desire to protect the health and safety of consumers may, in certain cases, take precedence over the right to make certain cosmetic products available on the market.
It notes that the directive provides for a ban on the marketing, import, manufacture or export of certain products if four cumulative conditions are met, namely: the product must be a non-food product having the shape, smell, colour, appearance, packaging, labelling, volume or size of a foodstuff.
It stresses that this directive does not establish a presumption of dangerousness of products likely to be mistaken for foodstuffs. However, that legislation does not require the national authorities to demonstrate, by means of objective and substantiated data, that products having the appearance of foodstuffs may be confused with such foodstuffs or that the health and safety risks associated with that confusion are proven, according to the Court.
See the judgment: https://aeur.eu/f/1wz (Original version in French by Aminata Niang)