Can an EU consumer return a sealed hygiene product after opening it?

Short answer

Often yes. The hygiene exception is far narrower than most return policies assume.

"Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance and off-premises contracts as regards the following: ... (e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery" — Consumer Rights Directive 2011/83/EU, Article 16(e)

Three cumulative conditions must be met: the goods were sealed, they are not suitable for return on health or hygiene grounds, and the consumer unsealed them after delivery.

The middle condition does the work, and the Court of Justice has read it strictly. In slewo (C-681/17) the Court held that a mattress whose protective film the consumer had removed does not fall within the exception.

The real test is not whether the product touched the body. It is whether the product is definitively unsuitable for resale — whether cleaning or disinfection can restore it to marketable condition.

The slewo reasoning

The Court's analysis is worth following, because it supplies the framework for every other product.

First, it asked whether unsealing made the goods permanently unsaleable:

"such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned." — slewo, C-681/17, paragraph 42

Second, it drew an analogy with clothing:

"as is clear from recitals 37 and 47 of Directive 2011/83, the intention of the EU legislature was to allow the purchaser of a garment, in the context of a distance sale, to try it on in order to 'establish the nature, characteristics and the functioning' and, where necessary, after trying the garment on, exercise his right of withdrawal" — slewo, C-681/17, paragraph 44

Third, it accepted that contact with the body is not itself decisive, provided treatment can restore the product:

"it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene." — slewo, C-681/17, paragraph 46

The operative ruling is unambiguous: goods such as a mattress from which the protective film has been removed do not come within the Article 16(e) concept.

The test to apply

After slewo, the question for any product is: can this be restored to a saleable condition by cleaning or disinfection, or is it definitively spoiled once opened?

Likely still returnable (exception does not apply):

• Mattresses and bedding — decided in slewo.
• Clothing and underwear tried on, where the trader's own practice and hygiene strips permit resale.
• Devices with washable or replaceable contact parts.
• Sealed goods where the seal is packaging rather than a hygiene barrier.

More likely within the exception:

• Cosmetics and skincare applied from the container.
• Consumables where a quantity has been used.
• Products where a used unit cannot lawfully be resold under product-safety or medicines rules.
• Items where sterility is the product's essential characteristic and cannot be restored.

The frequent objection — "we cannot resell it, so we lose money" — is not the test. slewo asks whether the goods are definitively unsuitable for return on health protection or hygiene grounds, not whether the trader would prefer not to handle them. Commercial inconvenience is addressed by a different provision.

The correct remedy: diminished value

slewo points to it directly:

"The fact remains that, in accordance with Article 14(2) of Directive 2011/83, read in the light of recital 47 thereof, the consumer is liable for any diminished value of goods resulting from handling other than that necessary in order to establish the nature, characteristics and functioning of the goods, without the consumer thereby being deprived of his right of withdrawal" — slewo, C-681/17, paragraph 47

That is the structure the Directive intends. The consumer keeps the right to withdraw; the trader is compensated through a reduction reflecting the item's reduced value.

Two constraints on using it. The deduction must reflect diminished value, not restocking or handling costs. And under the second sentence of Article 14(2), the consumer is not liable for diminished value at all where the trader failed to give proper withdrawal notice under Article 6(1)(h).

Sealing is the trader's responsibility

The exception applies only to goods that were sealed. If the trader did not seal them, there is nothing to unseal and Article 16(e) cannot bite.

For a trader relying on the exception, that means:

• Use a genuine hygiene seal, distinguishable from ordinary shipping packaging.
• Make its purpose evident — a visible indication that breaking it removes the right of withdrawal.
• Disclose the position under Article 6(1)(k), which requires information that the consumer will not benefit from a right of withdrawal or the circumstances in which they lose it.

Failing to disclose under Article 6(1)(k) does not extend the withdrawal period under Article 10 — that sanction attaches to Article 6(1)(h) — but it is an infringement subject to national penalties under Article 24, and it undermines any attempt to rely on the exception in a dispute with a consumer who was never told.

Related exceptions often confused with this one

Article 16 contains several neighbouring exceptions. They are distinct, and each has its own conditions.

• (c) Goods made to the consumer's specifications or clearly personalised. Genuine customisation, not a choice from standard options.
• (d) Goods liable to deteriorate or expire rapidly. Perishables.
• (f) Goods inseparably mixed with other items after delivery.
• (i) Sealed audio or video recordings or sealed computer software unsealed after delivery. A separate seal-based exception with its own subject matter — this is the one for media and boxed software, not (e).
• (m) Digital content not on a tangible medium, subject to consent, acknowledgement and confirmation.

Using (e) as a catch-all for anything opened is the error slewo corrects.

Member State variation

Article 16, as amended by Directive (EU) 2019/2161, allows Member States to derogate from the exceptions in points (a), (b), (c) and (e) for contracts concluded in the context of unsolicited visits to a consumer's home or organised excursions, where justified on consumer-protection grounds.

So in those specific channels, a Member State may disapply the hygiene exception entirely. Traders selling through home visits or excursions should check each market rather than assume the exception is available.

Operational checklist

• Apply the slewo test: is the product definitively unsuitable for resale, or can cleaning or disinfection restore it?
• Do not treat body contact as decisive.
• Use a genuine, visibly identified hygiene seal if you intend to rely on Article 16(e).
• Disclose the exception under Article 6(1)(k) before the order.
• Use the Article 14(2) diminished-value deduction rather than refusing returns.
• Confirm your Article 6(1)(h) withdrawal notice is compliant, or you lose the deduction too.
• Keep Article 16(e) separate from (c), (d), (f), (i) and (m).
• Check Member State derogations for home-visit and excursion sales.

Conclusion

Article 16(e) is a narrow exception for goods that opening genuinely spoils, not a general licence to refuse opened returns. slewo settles the approach: a mattress with its film removed stays returnable, because it can be cleaned and resold, and because the withdrawal right exists precisely so consumers can examine what they bought.

For traders the practical answer is to stop arguing about the exception and use the tool the Directive actually provides — a diminished-value deduction under Article 14(2) — while making sure the withdrawal notice is correct, since a defective notice removes that deduction as well.

Sources

• Consumer Rights Directive 2011/83/EU, consolidated to 28 May 2022
• Court of Justice judgment in slewo, C-681/17
• Court of Justice judgment in Messner, C-489/07
• Directive (EU) 2019/2161 on better enforcement and modernisation of Union consumer protection rules