The “effervescent bath bombs” are small balls, composed in particular of citric acid and baking soda, which begin to bubble on contact with water. They are used to color and perfume the bath.
But, before dissolving, they often look like large candies or colorful cupcakes that children might want to taste. Can they be banned, in the name of the safety of these young consumers?
This is the dispute on which the Court of Justice of the European Union has ruledThursday 2 June (C-122/21). She had been seized by the Supreme Administrative Court of Lithuania, regarding the following dispute: on August 29, 2018, the Consumer Protection Office of this country banned the marketing of bath bombs produced by the English company Get Fresh Limited.
The Lithuanian Office has, for this purpose, based itself on the European directive 87/357/EECrelating to “products which, not having the appearance of what they are, compromise the health or safety of consumers”. The first article of this text prohibits the marketing of products which, because they can be mistaken for foodstuffs, compromise the safety or health of consumers.
Four conditions
Get Fresh Limited challenged this decision, which it considered to constitute an obstacle to the free movement of goods within the European market. She assured that the Office must carry out laboratory tests to demonstrate that her bath bombs could be broken, and that they presented a danger of intoxication. Not knowing how to rule, the Lithuanian Supreme Court questioned the Court of Justice of the European Union on how the directive should be interpreted 87/357/EEC.
This Court, based in Luxembourg, replies that the directive does not make it possible to prohibit, from the outset, all products having the appearance of foodstuffs, but only those which meet the following four conditions:
1. They have the shape, smell, color, appearance, packaging, labelling, volume or size of a foodstuff;
2. It is foreseeable that consumers, especially children, confuse them with food products;
3. It is foreseeable that consumers put them in the mouth, suck them or ingest them;
4. Putting these products in the mouth, sucking them or ingesting them may involve risks such as choking, intoxication, perforation or obstruction of the digestive tract.
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