Recital 104

(104) Directive 87/357/EEC, which covers consumer products which, although not foodstuff, resemble foodstuff and are likely to be confused with foodstuff in such a way that consumers, especially children, may place them in their mouths, suck or ingest them and which might cause, for example, suffocation, poisoning, the perforation or obstruction of the digestive tract, has given rise to controversial interpretation. Furthermore, that Directive was adopted at a time where the legal framework for consumer product safety was very limited in scope. For those reasons, Directive 87/357/EEC should be repealed and replaced by this Regulation, in particular, the provisions of this Regulation which ensure that, following risk assessment, products which can be harmful when placed in mouth, sucked or ingested and which are likely to be confused with foodstuff due to their form, odour, colour, appearance, packaging, labelling, volume, size or other characteristics, should be considered dangerous. In performing their evaluation, market surveillance authorities should take into consideration, inter alia, that, as held by the Court of Justice of the European Union, it is not necessary to demonstrate by objective and substantiated data that placing in the mouth, sucking or ingesting food-imitating products may entail risks such as suffocation, poisoning, or the perforation or obstruction of the digestive tract. Nevertheless, the competent national authorities should assess on a case-by-case basis whether such products are dangerous and justify that assessment.

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Source: EUR-Lex CELLAR · retrieved 2026-08-26 · Text as adopted (Official Journal); later amendments are not incorporated in this text.