What Article 35 CLP requires when hazardous products resemble food packaging
On 5 November 2026, the Court of Justice of the European Union handed down its judgment in Case C‑395/25, Orkla Care. The case concerned nine liquid laundry detergents sold in coloured cardboard cartons. The Swedish Chemicals Agency had prohibited their sale on the grounds that the packaging could be mistaken for food packaging.
Assessing the package as a whole
Article 35(2) of the CLP Regulation prohibits packaging for hazardous substances and mixtures supplied to the general public where its shape or design may mislead consumers or create confusion with packaging used for food, feed, medicines or cosmetics.
The Court has now clarified how that assessment should be made. Authorities must consider the overall impression created by the packaging. This includes not only its shape and labelling, but also features such as size, colour, material, texture and even smell.
The assessment must also take account of the packaging throughout its use. A seal or warning that disappears once the product is opened will not necessarily be sufficient if the remaining packaging can still be confused with food packaging.
Protection beyond the average consumer
The Court also rejected an assessment based solely on the reasonably well-informed and observant average consumer. Article 35 is intended to protect anyone who may use or come into contact with the product, including children and other vulnerable persons.
Authorities do not need evidence that consumers have actually mistaken the product for food. A non-negligible risk of confusion is sufficient.
The assessment may also take account of food packaging commonly used in the relevant national market. For products marketed across the EU, the same packaging design may therefore require different assessments depending on local consumer perception.
What the clarification means for businesses
The judgement provides a clearer framework for applying the prohibition under Article 35. Importantly, the assessment does not depend on the particular hazard category once the product falls within the CLP rules. Nor does the judgment amount to a general prohibition on cardboard cartons or other packaging formats chosen for sustainability reasons. Whether Orkla’s packaging actually infringes Article 35 remains for the Swedish court to decide.
Companies placing hazardous consumer products on the market should assess packaging before launch and whenever the design changes.
The review should cover:
- the overall visual and sensory impression;
- packaging conventions in the relevant markets;
- how the packaging appears after opening;
- the perception of children and other vulnerable users; and
- whether warnings and other distinguishing features remain effective throughout use.
Packaging should support a design that is clearly distinguishable from food packaging rather than compensate for a design that is inherently ambiguous, even if warnings and labels adress the risks.
Conclusion
The judgement gives businesses a clearer Article 35 test: packaging must be assessed as a whole, throughout its use and from the perspective of those actually exposed to it.
back