The Lithuanian authorities carried out an inspection and found that some bath bombs, which had the appearance of foodstuffs, posed a risk of poisoning to consumers, in particular children, and compromised consumer safety. The Lithuanian authorities ordered these bath bombs to withdraw from the market.

Subsequently, the Supreme Administrative Court of Lithuania, 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 products which, although not foodstuffs, have the appearance of foodstuffs, may entail risks to health or safety.

In its judgment, the Court recalls, first of all, that Directive 87/357 applies to products appearing to be other than they are, and endanger the health or safety of consumers.

The Court observes that Directive 87/357 provides for a prohibition on the marketing, import, manufacture or export of certain products where four cumulative conditions, imposed by Article 1 thereof, are met:

1. the product must be a non-food product possessing the form, odour, colour, appearance, packaging, labelling, volume, or size of a foodstuff;
2. the characteristics referred to in the preceding point must be such that it is likely that consumers, especially children, will confuse the product for a foodstuff;
3. it must be likely that, in consequence, consumers will place that product in their mouths, suck or ingest it, and;
4. placing the product in the mouth, sucking it, or ingesting it may entail risks such as suffocation, poisoning, or the perforation or obstruction of the digestive tract.

However, the Court finds that Directive 87/357 does not contain a provision establishing a presumption that products, appearing to be other than they are, are dangerous, nor does it contain, in particular, a presumption that placing such products in the mouth, sucking or ingesting them entails such risks, but that, on the contrary, the EU legislature requires, in respect of the latter condition, that such risks be assessed on a case-by-case basis.

Also, the Court considers that such a presumption is contrary to the fact that Directive 87/357 does not impose a prohibition on the marketing of products likely to be confused with foodstuffs, but is intended to eliminate obstacles to free movement resulting from national provisions relating to such products while ensuring the protection of the health and safety of consumers.

Lastly, the Court states that the national authorities must assess, in each individual case, the objective characteristics of the products concerned in order to determine whether the four conditions imposed by Article 1 of Directive 87/357/EEC are met, which would justify the adoption of a decision prohibiting their marketing.