Are bath balls allowed to be sold in an ice cream cone?

Preliminary ruling

ECJ 02.06.2022,

Member states may prohibit the sale of cosmetics if they are confusingly similar to foodstuffs and thus endanger the health of consumers. This was decided by the ECJ in connection with the complaint of a Lithuanian cosmetics manufacturer, which was accused of selling bath balls in the appearance of food ("ice cream scoops"). Caution is therefore required for companies that manufacture food-like products.

The background to the decision is the Directive 87/357/EEC. The aim is to enable companies to sell products resembling foodstuffs within the EU.

In this case, the Lithuanian authority prohibited Get Fresh Cosmetics Limited from selling bath balls on the grounds that they are capable of endangering the health of children and the elderly on the face of it. The company argued that the authority had to prove through objective and substantiated data that a health risk resulted from the bath balls. However, the ECJ rejected this: the authority does not have to collect such data. Conversely, there is also no presumption that products are dangerous simply because of their nature. Rather, a case-by-case assessment is required, and according to the ECJ, the following criteria must be fulfilled:

  1. It must be a non-food product (such as cosmetics) similar in shape, smell, appearance, labeling, etc. with a food product;
  2. Due to the specific presentation/shape etc., it must be foreseeable that consumers, in particular children, will confuse the product with a foodstuff and
  3. It must be foreseeable that the product will be brought to the mouth, sucked or swallowed, which could result in a risk of choking or poisoning.

If these conditions are given, bath balls - as in the specific case - and other products may not be distributed.