Henkel Italia SpA Obtains a Remarkable Victory in Product Safety Litigation

Cleary Gottlieb successfully defended Henkel Italia SpA in two interim proceedings brought separately before the Administrative Tribunal of Lazio. Cleary Gottlieb obtained a stay of execution of two decisions, issued by the Italian Ministry of Health in November 2009, which banned the sale of two Henkel products (a manual dishwashing detergent, Nelsenino and a liquid WC cleaning agent, Bref) during the administrative proceedings to assess the safety of the products under Directive 2001/95/EC on general product safety. Henkel Italia is the Italian subsidiary of the Henkel group, which operates on a worldwide scale in the laundry care and household cleaner segments.

The case was commenced in Portugal when the Portuguese Consumer Authority found that the two Henkel products constituted a serious risk to consumers because their appearance, shape, color and packaging could potentially lead children (especially young children) to misperceive them as toys. The Portuguese Consumer Authority ordered the withdrawal of the two products from the Portuguese market, and notified its decision to the European Commission, which in turn forwarded the notification to all consumer agencies throughout the EU. This was pursuant to a system for the rapid exchange of information between the Member States and the Commission on measures in relation to consumer products posing risks for the health and safety of consumers (the so-called Rapex system).

Before the Administrative Tribunal of Lazio, Cleary Gottlieb argued – on the basis of copious scientific documentation – that the two products couldn’t be considered “dangerous” under Directive 2001/95/EC on general product safety. Moreover, Cleary Gottlieb sustained that the interim measures were inappropriate as no urgency or serious risk existed, as the products have been marketed since 2005 in most European countries and approximately 15 million units have been sold without incident or suspicion that they might raise any concerns. Cleary Gottlieb finally argued that the Ministry’s decisions were illegal to the extent that the challenged measures did not set out any time limit on the suspensions, clearly in contrast with their interim nature.

Agreeing with Cleary Gottlieb’s arguments, the Court granted Henkel Italia’s appeals, and suspended the Ministry’s orders by way of interim measures. As a consequence of the interim measures granted by the Court, Henkel Italia is authorized to market the two products in Italy, and the Ministry is obligated not to activate the Rapex system. Moreover, after the Court decisions, the Italian Ministry of Health permanently revoked its temporary ban on the sale of Nelsenino, agreeing that it is not a dangerous product. It also stated that no legal provision under current Italian and European law prevents or prohibits the marketing of toy-like products exclusively addressed to adults. The Ministry’s final decision regarding Bref WC is still pending.