I can say with high confidence they did think of the possibility but decided against closing the loophole because they didn’t want to be too overbearing with the regulation. You can see that process in action with the GDPR and cookie banners. Initially the regulation allowed for some freedom on the end of the website but after observation the EU determined that companies are happy to keep pushing the boundaries and have decided to tighten the wording of the cookie banner regulation.

Apple is likely shooting themselves in the foot right now because this behaviour will just result in the EU taking away what loopholes they left the companies to use in moderation.