CJEU: Dangerous detergents in packaging resembling food products may be banned without proven cases of confusion

Authorities may intervene when the resemblance to food packaging creates a non-negligible risk of confusion, the CJEU states in a case concerning nine liquid laundry detergent products marketed in Sweden. The assessment must also take children, vulnerable persons, and the use of the product after purchase into account. A removable seal or a warning does not automatically eliminate the risk created by the appearance of the packaging.

National authorities may prohibit the marketing of detergents classified as hazardous if their packaging resembles food packaging and creates a non-negligible risk of confusion, without having to prove that a consumer has already been misled. In its judgment of 5 November, the Court of Justice of the European Union clarified this rule in the Orkla Care case, stating that protection must include children and vulnerable persons and continue throughout the use of the product.

In brief

1. Authorities may prohibit the marketing of hazardous chemical products if their resemblance to food packaging creates a non-negligible risk of confusion, without having to prove a previous case. The assessment is made on a case-by-case basis, based on the overall impression.

2. A seal that breaks upon first use cannot be regarded as decisive in eliminating confusion if it does not remain intact throughout the packaging’s lifetime. Nor does a warning not to swallow the contents necessarily neutralize the visual effect.

3. The assessment also concerns those who may use the product after purchase. For children or persons with perceptual difficulties, the ability to read the label or recognize the container must be taken into account.

4. The authority may relate the risk to habits and products known on the national market. It does not have to demonstrate that the same packaging would mislead consumers in all the other states where it is sold.

5. The rule applies to products classified as hazardous regardless of the hazard category; the risk need not concern swallowing exclusively. The Swedish court remains responsible for resolving the dispute concerning the nine products.

The judgment of 5 November 2026, delivered in Case C-395/25, interprets the European rules on the classification, labelling, and packaging of chemical substances and mixtures, known as the CLP Regulation. Article 35(2) prohibits packaging containing hazardous substances or mixtures supplied to the general public from having a presentation similar to that used for foodstuffs if that similarity may mislead consumers. The Swedish court that requested the interpretation of EU law is to resolve the specific dispute.

The case arose from liquid laundry detergents sold by the Swedish company Orkla Care in elongated, coloured cardboard boxes with a folded top and a screw cap on one side. Following complaints from consumers, the Swedish Chemicals Agency, Kemikalieinspektionen, decided to prohibit the placing on the market of nine products in this type of packaging. The authority considered that the shape and appearance of the boxes, together with the colours, label, and statement that the product was vegan, could cause the detergents to be mistaken for food.

The court in Nacka that examined the company’s appeal likewise considered that the packaging could be mistaken for packaging for milk, yoghurt, fruit juice, or other liquid foods and could arouse children’s curiosity. Orkla appealed the judgment to the Court of Appeal sitting in Stockholm, whose Land and Environment Court Division referred questions to the CJEU concerning the application of the regulation.

The company disputed the resemblance to food packaging. According to its arguments, as reported in the judgment, the boxes depicted textile products, carried a warning that the liquid must not be swallowed, and had a label sealing the opening before first use. Orkla also argued that the choice of cardboard had been motivated by environmental considerations. The dispute therefore also concerned the extent to which these elements could dispel the impression created by the shape and presentation of the container.

The Court’s response begins with the overall appearance of the packaging. The authority must analyse all characteristics that may be perceived by the consumer: shape, size, volume, design, colour, labelling, materials, texture, and smell. Sometimes the combination of several elements is significant. The assessment is made in each individual case, in relation to the possibility that the packaging of a hazardous product might mistakenly be recognized as food packaging.

To establish non-compliance with the requirements, it is not necessary for the risk of misleading consumers to be high. It is sufficient for it not to be negligible, as determined through an analysis of the objective characteristics of the packaging. A previous case of confusion may constitute an indication, but the authority is not required to present one. Similarly, the absence of proven cases of this kind does not mean that the risk does not exist.

The Court also explains why a removable seal does not automatically solve the problem. Detergents are used repeatedly and remain in homes after the packaging is opened. The protection pursued by the regulation concerns both purchasers and other potential users throughout the product’s lifetime. A label covering the cap and removed upon first use cannot be treated as a decisive distinguishing feature, because it does not remain intact throughout the packaging’s lifetime. The warning not to swallow the contents adds to the requirements concerning the appearance of the container and does not necessarily neutralize its immediate visual impact.

This protection is not limited to the average consumer, who is reasonably well informed and reasonably observant and circumspect. It includes children and vulnerable persons who may encounter difficulties in perceiving or assessing the packaging. The Court requires the limitations on access to information on the label and on identifying the product to be taken into account. For certain persons, the shape and texture perceived through touch or the smell may be more relevant; in the case of children, the authorities must examine whether the appearance of the container suggests that the product is edible, for example, a beverage.

The comparison is made with reference to the public actually exposed on the national market. The Swedish authority may take into account food packaging familiar to consumers in Sweden, without verifying whether the same presentation would also be misleading in the other states where the product is marketed. The Court considers that this approach is compatible with the common rules of the internal market: the legal assessment criteria are the same, even if the products with which consumers are familiar and their perception may differ between countries.

Another part of the judgment concerns the nature of the hazard. The detergents at issue were classified in the category of substances or mixtures that may cause reversible eye irritation. Orkla had argued that the products were not hazardous if swallowed. The Court notes, however, that the company acknowledged the presence of surfactants that may cause temporary nausea and vomiting; the judgment therefore does not establish that the products are harmless if swallowed.

In any event, once the product is classified as hazardous, the specific hazard category or mode of exposure is not decisive for applying the requirement concerning misleading packaging. According to the Court, the rule seeks to prevent any hazardous exposure that could result from confusion with food, including effects on the eyes. The criteria concerning resemblance and the risk of misleading consumers apply in the same way regardless of the nature of the hazard.

Applying these criteria to Orkla’s packaging is a matter for the authorities and the national court. The CJEU’s judgment does not establish the date from which the national prohibition on the nine products applies: the Nacka court had set the prohibition’s effects to begin three months after its own judgment became final, and the company had lodged an appeal. The Swedish dispute must now be resolved in the light of the European interpretation, which requires the risk of confusion to be assessed even after the product has reached the consumer’s home.

https://2eu.brussels/ro/news/detergentii-periculosi-ambalati-ca-alimentele-pot-fi-interzisi-fara-cazuri-dovedite-de-confuzie