Facts
The appellant, X., was convicted of violating art. 86 al. 1 let. b and 2 TPA and 87 TPA for importing and marketing in Switzerland, without authorization, food supplements presented as therapeutic products. The products in question did not contain any active principle intended to act medically on humans, but were presented as such on websites and in brochures.
The Correctional Court of the district of Le Locle sentenced him to 180 daily fines, at 100 fr. per day with a suspended sentence for three years, as well as a compensatory claim of 300,000 fr. The Neuchâtel Criminal Court of Cassation partially admitted the appeal lodged against this judgment by Swissmedic and referred the case back to the Correctional Court for a new judgment.
The Correctional Court convicted X. of violating art. 86 al. 1 let. b and 2 TPA and 87 TPA to a custodial sentence of 15 months with a suspended sentence for four years. The convicted person lodged an appeal against this judgment, which was rejected by the Neuchâtel Court of Cassation.
Considerations
The Court of Criminal Law examined whether the disputed food supplements were subject to the TPA or fell under food law. It considered that the products were presented as intended to act medically on the body, regardless of their composition, and thus fell within the scope of the TPA.
The Court also examined whether the appellant had violated art. 86 al. 1 let. b TPA, which sanctions the concrete endangerment of human health. It considered that the marketing of the products did not create a significant danger for customers, but that the advice provided by the appellant to substitute the products for classical treatments could constitute a concrete danger.
However, the Court considered that such advice…