The Court of Justice of the European Union has clarified how national regulators should decide whether packaging for hazardous chemical products too closely resembles packaging used for food.
The ruling arose from a Swedish dispute involving Orkla Care’s laundry products, sold in coloured brick-shaped cartons with folded lids and screw caps. After consumer complaints, the Swedish Chemicals Agency prohibited nine products under EU rules governing the classification, labelling and packaging of hazardous substances. Swedish courts sought guidance on the legal test.
The Court held on 5 November that regulators must consider the package’s overall appearance and all perceptible features, including shape, size, colour, design, labelling, material, texture and smell. The assessment is case-specific and asks whether distinctive features normally associated with food could cause confusion.
A tamper or security label does not necessarily cure the problem where it does not permanently change the package’s overall impression. Nor must an authority show that consumers have already been misled. A non-negligible risk is enough; proof of a high risk is not required.
The relevant public includes the people actually exposed to the product in the national market. It is broader than the conventionally careful average consumer and includes anyone likely to use the product after purchase, particularly children and vulnerable people. Authorities need not determine whether consumers in every other member state would react in the same way.
The Court did not decide whether Orkla’s products must remain prohibited. That final determination belongs to the Swedish court, which must apply the binding interpretation to the national dispute.
Official Court of Justice release and judgment link
