Pharmaceuticals The Federal Supreme Court confirms the previous case law in the Denner-Colgate/Dentagard decision The discounter Denner sells Colgate Dentagard toothpaste with natural herbs in Switzerland. As Denner does not obtain the toothpaste from Colgate's branch in Switzerland, but as a parallel import directly from Germany, the tube does not bear the labeling adapted for Switzerland, but the version for Germany. In particular, the tube is labeled "dentally preventive", supplemented by the symbol of medicine, the Aesculapian snake. Victory against the Zurich cantonal laboratoryThe Zurich cantonal laboratory wanted to prohibit Denner from selling the toothpaste with the above-mentioned reference and image. Denner appealed to the Federal Supreme Court against a corresponding injunction and an identical ruling by the Health Directorate and the Administrative Court of the Canton of Zurich, with success.
"Cassis de Dijon principle" not confirmedWith his appeal to Switzerland's highest court, Denner actually wanted to enforce the so-called "Cassis de Dijon principle", which applies within the EU, in the relationship between Switzerland and the EU. Among other things, the principle states that products that are declared in accordance with the regulations of the country of origin can be approved in the country of destination without further ado. The re-declaration of products for the Swiss market is one of the biggest barriers to trade and leads to an increase in the price of imported goods.
However, in the specific case of Denner-Colgate/Dentagard, the Federal Supreme Court has now determined that the labeling of the toothpaste also complies with the provisions of Swiss law and has therefore not assessed and thus not confirmed the application of the "Cassis de Dijon principle" between Switzerland and the EU.
Advertising with "medicinal effect "In accordance with Art. 31 of the Foodstuffs and Utility Articles Ordinance (LGV, SR 817.02,
However, in the case of dental and oral care products, references to "caries-preventing properties" are permitted. However, references to "caries-preventing properties" are permitted for dental and oral care products. What is permitted and what is prohibited? The Federal Supreme Court has repeatedly ruled on the advertising of "healing effects" of food and consumer goods (including cosmetics) and has now confirmed these statements in the Denner-Colgate/Dentagard decision. It is clear from this supreme court ruling that the use of claims referring to a preventive or curative effect with regard to a human disease is prohibited. The concept of illness is not interpreted too restrictively in the case of claims and in connection with advertising messages. Illness is understood to mean health disorders that go beyond a state of merely limited well-being. However, the aforementioned regulations do not prohibit health-related advertising, provided it is based on reasonable facts and does not mislead the public.
This means that advertising may, for example, state that regular milk consumption is good for health because it provides the body with a natural supply of calcium, which appears to be beneficial for bone structure. On the other hand, it is inadmissible to state that the calcium in milk "helps to prevent bone fragility in old age, known as osteoporosis".
In particular, the Federal Court found the following advertising claims to be incompatible with the LGV and therefore inadmissible: "archenemy of the cold virus", "slimming cream", "tissue tightening balm", "cellulite system treatment", "stimulates microcirculation", "supports fat reduction as well as drainage and tightening of connective tissue", "Clinique Water Therapy" with regard to the use of the term "Therapy", "for itchy skin prone to allergies", "for the care of neurodermatitis, psoriasis, diabetes, psoriasis". Borderline cases are the indications "beneficial for colds" and "beneficial for sore muscles".
Decision in the Denner-Colgate/Dentagard caseIn the Denner-Colgate/Dentagard case, the Federal Supreme Court considers the reference to "dental prevention" to be compatible with the exception for dental and oral care products mentioned in Art. 31 LGV. According to this provision, references to "caries-preventing properties" are permitted. The reference "dentally preventive" goes somewhat further. However, there is a great public interest in dental prophylaxis. In addition, it is a generous application in the sense of the recent revision of the LGV, which is also based on the corresponding EU provisions.
Finally, in the Denner-Colgate/Dentagard case, the Federal Supreme Court does not consider consumers to have been misled by the image of the Aesculap snake. The illustration had a connection to medicine, which was not objected to in the present case. Moreover, in view of its placement alongside the other references and its dimensions, no further independent (unauthorized) significance could be attributed to the image.
Ueli Grüter
Ueli Grüter, LL.M., is an attorney at law in Zurich and Lucerne (
and lecturer in communications law at the University of Applied Sciences of Central Switzerland ().Federal Supreme Court decision 2A.213/2006 of 19.10.2006, to be found at
, heading "further judgments from 2000")
Further information on this topic can be found at
.