Federal Supreme Court, Decision 2C_733/2020 of 15 March 2021

6 May 2021 – In this decision, the Federal Supreme Court had to assess whether the lower court had lawfully confirmed the prohibition according to which the appellant was not allowed to distribute the brochure on its food supplement to the intermediaries (pharmacies and drugstores). The lower court justified the ban on distribution on the grounds that it violated the requirements of food law, namely the prohibition of deception. The appellant complained of a violation of the principle of legality, as the Federal Department of Home Affairs (FDHA) extended the group of persons covered by food legislation to intermediaries at the ordinance level - contrary to the requirements of the Foodstuffs Act (FSA).

The Federal Supreme Court disagreed and stated that in light of the protective purpose of food legislation, the regulatory content of the Ordinance on Foodstuffs and Utility Articles (ODA) must also extend to intermediaries – (at least) if they are in direct contact with consumers. The appeal was consequently dismissed.

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