Manufacturers of cosmetics which resemble foodstuffs may be impeded from placing such products on the market, the Court of Justice of the European Union (CJEU) has recently affirmed.
However, though authorities are not obliged to demonstrate with certainty the risks arising from such products, they must nonetheless assess objectively, in each individual case, the characteristics of the products in order to determine whether the health and safety of consumers is at risk, prior to imposing such a prohibition.
EU law obliges member states to ban the sale, import, export and manufacture of products, such as cosmetics and liquid household products, which are not edible, but which because of their shape, smell, colour, appearance, wrapping, labelling or size, might appear to be so, and hence, endanger the health and safety of consumers.
The facts of this case were briefly as follows. A cosmetics manufacturer markets a number of cosmetic products via a website. An inspection was conducted by the authorities and the manufacturer was ordered to withdraw from the market various types of bath bombs which resembled foodstuffs and which posed a risk of poisoning to consumers, particularly children.
During proceedings filed before the national courts, the manufacturer claimed that in terms of the law, the authorities could not merely claim that the products at issue could be confused with food products but were obliged to demonstrate the danger posed by such confusion. It maintained that the relevant authority was, therefore, obliged to carry out laboratory analyses and tests in order to determine whether the products at issue could be broken and whether they pose a danger of poisoning when placed in the mouth, sucked or swallowed.
The counterargument of the authority was to the effect that, since cosmetic products are not intended for consumption, the resemblance between such a non-food product and a food product is sufficient for it to be presumed that that product poses risks to consumer health.
This judgment highlights the delicate balance which often must be kept between the free movement of goods and consumer protection
The national court seized of the case filed a preliminary reference before the CJEU requesting guidance as to whether, in terms of the relevant EU law, the authorities were obliged to show, via objective and substantiated data, that the placing in the mouth of products as the ones at issue, may entail risks to health or safety.
The CJEU explained that the relevant EU directive provides for a prohibition on the marketing, import, manufacture or export of certain products where four cumulative conditions are met.
Primarily, the product must be a non-food product possessing the form, odour, colour, appearance, packaging, labelling, volume or size of a foodstuff, and such characteristics must make it likely for consumers, especially children, to confuse the product for a foodstuff.
Furthermore, it must be likely that, as a consequence, consumers will place that product in their mouths, suck or ingest it, and by doing so, there could be risks relating to suffocation, poisoning or the perforation or obstruction of the digestive tract.
However, the CJEU affirmed that the said directive does not make provision for a presumption that products, appearing to be other than they are, are dangerous, or that placing such products in the mouth, sucking or ingesting them entails health risks. It emphasised that such risks must be assessed on a case-by-case basis.
The court went on to explain that the national authorities must assess, in each individual case, the objective characteristics of the products concerned in order to determine whether the four conditions alluded to above are met, in order to justify the adoption of a decision prohibiting their marketing. When making such an assessment, the authorities are obliged to take into cognisance the vulnerability of individuals and specific groups of consumers, particularly children.
However, EU law does not go so far as to impose the requirement for national authorities to demonstrate, by means of objective and substantiated data, that products which have the appearance of foodstuffs may indeed be confused with foodstuffs or that risks to health and safety have indeed been established. Hence, there is no obligation on the part of the authorities to demonstrate with certainty that there are such risks, the CJEU concluded.
This judgment highlights the delicate balance which often must be kept between the free movement of goods and consumer protection.
While consumers’ health must be safeguarded at all times, it is also of the utmost importance that traders are not impeded unduly from exercising their right to trade and to avail themselves of one of the cornerstones of the EU’s internal market, that is the free movement of goods.