National Competition Law Report – Q4 2006

Author:Mr Silvio Venturi
Profession:Tavernier Tschanz
 
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PARALLEL TRADE

Judgment of the Swiss Supreme Court concerning the sale of imported "preventative dental medicinal" toothpaste Colgate Dentagard

On October 19, 2006, the Swiss Supreme Court issued a judgment in the Colgate Dentagard case. This judgment indicates a concern to favour the levelling of barriers to the free movement of goods from the EU into Switzerland, and a receptiveness to EU law "soft" influence in appropriate areas of Swiss law. This judgment may also significantly effect the way toothpaste and other oral hygiene consumer products are marketed in Switzerland.

The Swiss discount retailer Denner AG had been sourcing Colgate Dentagard toothpaste in Germany at a significantly lower price than that available to it in Switzerland, and reselling it on the Swiss market. On March 2, 2005 the Zurich Cantonal Laboratory ordered Denner to discontinue selling that toothpaste as of June 30, 2005. It was of the view that the indication which the toothpaste tube bore, "preventative dental medicinal", with an Asclepius rod (snake and staff) design next to it, was in violation of Swiss consumer goods legislation and therefore could not be sold in Switzerland. Several appeal instances prior to the Supreme Court confirmed this position, which was consistent with prior Swiss case law in this area, albeit not on identical facts. The Swiss Supreme Court reversed.

By virtue of a 1972 convention between Switzerland and the EU, in principle all goods placed in circulation within the EU may also be sold in Switzerland. An exception to that principle is that such goods must be in conformity with the provisions of relevant Swiss law. It was undisputed that the toothpaste at issue fell to be classified as consumer goods and therefore the Swiss legislation on food and consumer goods was applicable, and not Swiss legislation on medicines. Swiss legislation on food and consumer goods prohibited references of all kinds to effects of healing, alleviating or prevention of sickness unless such references were based on verifiable facts and did not deceive the public. The legislation also provided a specific more permissive regime for oral care products: references exclusively to cavity prevention effects were permitted.

Clearly, the indication on the Colgate Dentagard was broader than a mere claim to cavity prevention, since it extended to all conditions affected by the surfaces brushed, namely, the palette, the teeth and the gums.

The Supreme...

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