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A case that recently took place in Lithuania, in which a cosmetic company has been ordered to remove some of its products due to similarity with foodstuff, has opened a relevant discussion on the interpretation of Article 1 of Council Directive 87/357/EEC of 25 June 1987 on the approximation of the laws of the Member States concerning products which, appearing to be other than they are, endanger the health or safety of consumers.
It is considered that products similar to foodstuff create a risk of intoxication (in particular to children),compromising consumer safety, there being no need to demonstrate by objective and substantiated data said products may be confusing even when properly labelled.
Additionally, the fact that children are a vulnerable group susceptible not to differentiate products similar to foodstuff from actual food, thus placing said products in their mouths or even ingesting them due to form, colour, appearance, volume or size, with the associated risks of suffocation, poisoning or obstruction, represents enough grounds for the removal of these products from the market.
Therefore, Member States have enough legitimacy to control and forbid the marketing, importation, manufacturing or exportation of products similar to foodstuff, however the necessary assessment must be handled on a case-by-case basis, in order to identify whether the product meets the conditions listed in the Directive provisions or not.