Small, colorful, fragrant, heart-shaped or round with streaks, also similar to the very good macarons, often accompanied by “inviting” packages. Watch out, though, because they don’t eat them. They are not filled with sweetness but with toxicity. The bath bombs become a case of study and pronouncement, ending up “at the stand.” The European Court of Justice finds itself having to rule on one of the increasingly popular personal hygiene products that deserve attention. Not only of the legal case in question, but also legislative and personal.
The nature of bath bombs is chemical. They add color and a pleasant smell to the bath water that fills the tub, often a play environment for the little ones. And it is precisely to them that the judges of Luxembourg focus on the very particular pronouncement. Adults can tell the difference between what is edible or not, but the little ones may not know how to discern. Bath bombs are neither a game nor a food, so be careful. Conclusion: States can “limit their distribution”, as they are potentially “confused with food products, due to their similarity with the latter, and involve health risks”.
The High Court of the European Union finds itself having to clarify how to interpret a directive, the one on products with a different aspect from what they actually are, which presents some regulatory vacuum. In particular, the legislation in force does not introduce a presumption of dangerousness of products that can be confused with food products. It means that there is no burden of proof, and that States are not required to demonstrate the potential or real danger, even in the name of the single European market and free movement, in this case of goods.
But human health and consumer safety still tend to prevail. This is why the Luxembourg judges are convinced that in any case, even for bath bombs, “the national authorities must take into consideration the vulnerability of individuals and specific groups of consumers, including, in particular, children”. It means that in certain cases and under certain conditions, it is possible to intervene on the market.
In order to intervene and procedures for prohibiting the marketing, import, manufacture or export of certain products, four conditions are required, which are cumulative. All four must be present at the same time. First, the product must be a non-food product having the shape, smell, color, appearance, packaging, labeling, volume or size of a food product. And too often this is also the case with bathroom accessories at the center of the pronouncement. Furthermore, the non-food product must be such as to make it possible for consumers, especially children, to confuse the product with a food product. Thirdly, “it must be foreseeable” that, for this reason, consumers bring this product to the mouth, suck it or swallow it, and, finally, the fact of bringing this product to the mouth, sucking it or swallowing it can involve risks such as suffocation, intoxication, perforation or obstruction of the digestive tract.
All conditions that in the cases of bath bombs seem to make the product potentially risky. Just the “keep out of reach of children” warning may not be enough. Meanwhile, mothers and fathers from all over Europe continue to be careful, and the national authorities know that from now on they can also intervene on the marketing of fragrant and colorful balls and hearts that are not pastries. Luxembourg’s invitation is clear.