Facts
The appellant engaged in commercial trade of prescription drugs, particularly the potency drug "Viagra", until October 2002. He obtained the "Viagra" tablets from German nationals and distributed them by individually pressing them out of the blisters and sending them by mail to his customers. Through this trade, he achieved monthly sales of approximately 150,000 Swiss francs and net profits of 20,000 to 30,000 Swiss francs. The appellant had already been convicted in 1999 for similar actions. The Cantonal Court of St. Gallen sentenced the appellant to a custodial sentence of 16 months for a commercial offense against the Therapeutic Products Act (Art. 86 para. 2 TPA). The appellant appealed this judgment.Considerations
The Federal Supreme Court holds that the objective elements of the offense under Art. 86 TPA are only fulfilled if the marketing of medicinal products has concretely endangered the health of people. A mere probability or possibility of endangerment is not sufficient. The lower court must re-examine in the new proceedings whether the appellant has delivered "Viagra" tablets to persons for whom the ingestion posed a concrete danger to health due to their belonging to a risk group.
Should the lower court find that there was no concrete endangerment of health, the appellant would only…