In a recent Judgment, the CJEU (Court of Justice of the European Union) ruled in favour of the Lithuanian national authorities, who had ordered the withdrawal from the market of bath bombs that looked like foodstuffs. According to the Court, the provisions of Directive 87/357 (on products which, appearing to be other than they are, endanger the health or safety of consumers) do not oblige the authorities to demonstrate that the risks are proven.
This Jjudgment states that Member States may, under certain conditions, restrict the distribution of cosmetic products which, because they have the appearance of foodstuffs, may be mistaken for foodstuffs and cause health risks. The interest in protecting the health and safety of consumers thus may, in certain cases, prevail over the right to market certain cosmetic products.
The dispute
Get Fresh Cosmetics Limited markets certain cosmetic products in Lithuania via a website.
The Lithuanian authorities carried out an inspection and found that some of those products, namely several types of bath bombs, had the appearance of foodstuffs, posed a risk of poisoning to consumers, in particular children, and compromised consumer safety. The Lithuanian authorities ordered Get Fresh Cosmetics to withdraw them from the market.
The Supreme Administrative Court of Lithuania, hearing the case between Get Fresh Cosmetics and the Lithuanian authorities in this matter at last instance, has asked the Court of Justice for clarification on the interpretation of Directive 87/357/EEC in order to determine whether it must be shown by objective and substantiated data that the placing in the mouth of products which, although not foodstuffs, have the appearance of foodstuffs, may entail risks to health or safety.
