I try to keep an eye on Rapex reports as they are a good way of keeping abreast of how regulations are interpreted across Europe. In the last couple of weeks there has been a case of the Spanish equivalent of trading standards ordering a product to be taken off the market because of their resemblance to food. They are quoting an EU directive - this is the one from 1987.
It's a directive so it is up to individual countries to enact national legislation to address it, which are supposed to be consistent across the EU. The UK implemented this in 1989 with the Food Imitations (Safety) Regulations. The way it should work is that Spain should have enacted an equivalent act, so I think we can assume that the rules are the same in Spain.
What should you do when something like this happens? I don't have any connection with Bomb Cosmetics so I don't know what their approach would be, but I know what I would do in their place. Are I certainly wouldn't take it lying down. There are a number of arguments and you could bring to bear in this case.
The first one is plain and simple common sense. Nobody is going to eat a soap that looks like a piece of cake. Even if they did it would be unlikely to swallow it once as they realised the mistake. And in the doubly unlikely event of them actually swallowing it, no harm would come to them.
This argument can be backed up with statistics. Presumably there are data for the number of units already sold. This could be compared with the number of people who have actually eaten the product. I am pretty sure number of problems that would be zero. This could be backed up with publicly available information on the number of hospital admissions for consumption of cosmetics. This is going to be a very low number. In I think 2002 there was a conference held by the Society of Cosmetic Scientists. The speaker who was invited from the poison centre said that they only had one record of a fatality related to ingestion of a cosmetic product after that date. This was an intravenous drug user who had wrenched the ball from an under arm deodorant and drank it. He had presumably seen the word alcohol on the ingredient list. It was probably the aluminium content that did in the harm, but he already had many health issues in any case. So I don't think that soap poses much risk.
You could also argue custom and practice. Many many products are sold across Europe every day that have some kind of connection to food. For instance would a chocolate face mask count as a something that could be misinterpreted as a food? And novelty soaps come in all shapes and sizes, and many could be mistaken for food. It is easy to confirm that few if any such actions have been taken simply by referring to Rapex.
There have been 4 so far this year - of which three are from Spain suggesting to me that it might well be one individual officer who is particularly conscientious about this issue. This is confirmed by looking at last year when not a single action was taken against cosmetics citing this legislation. It is therefore easy to argue that the consensus across the continent is to regard this as a non-issue.
And there is also a related argument, in fact it sounds the same at first hearing. Given that so many products mimic food why has the Bomb Cosmetics one been singled out? This is a question of fair trading rather than one of safety. It is always good to have such an argument up your sleeve. If someone claims to be acting in the interests of public safety even if they are being overzealous it is easy for them to take the moral high ground. If they are acting in a discriminatory way that is a much trickier position for them defend.
That is how I would handle it anyway. Of course there is always an understandable temptation to avoid controversy and just knuckle down and accept this kind of thing. We all like a quiet life. But don't be surprised to see your competitors getting away with exactly what you have given up on.