Supreme Court considers health claims for cosmetic products

The Swiss Supreme Court has held that health claims such as “suitable for people with neurodermatitis” on cosmetic products are unlawful (Case 2C_590/2008, January 27 2009).
In Switzerland, health claims (ie, references to a prophylactic or healing effect in connection with a human disease) are prohibited for food and cosmetic products. This prohibition aims to help consumers distinguish between food and cosmetic products on the one hand, and drugs on the other - although the differences between them are sometimes blurred, for example with regard to 'functional' food and food for special medical purposes. In addition, the European Union recently adopted Regulation 1924/2006 on nutrition and health claims made on foods.

In light of this regulatory framework, the Supreme Court had to assess whether the claim “suitable for people with (overly) sensitive skin, such as mild forms of atopy or neurodermatitis” for hair care products was admissible. The Supreme Court held that such claim was impermissible for cosmetic products, since references to human diseases – as well as suitability claims – are prohibited. However, the claim that the shampoo at issue was suitable for people with sensitive skin was held to be lawful.

In an interesting obiter dictum, the court referred to Regulation 1924/2006, but left open the question of whether the basic principles of the regulation could be applied to cosmetic products by analogy.

In the underlying administrative proceedings, the cantonal health authorities had taken an even more restrictive approach to the admissibility of health-related claims for cosmetic products. The health authorities had considered that the claim that the shampoo was suitable "against itchiness" was impermissible, since "itchiness" was found to be a human disease. However, the cantonal administrative court had held that such claim was permissible for shampoo.

The decision of the Supreme Court will be of interest for owners of trademarks that carry claims as to the nutrition or health benefits of food (for background information on this issue, please see "Second reading of nutritional and health claims regulation under way").

Markus R Frick, Walder Wyss & Partners, Zurich

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