Facts
In 1999, the Swiss Milk Producers' Association (SMP) advertised in print media with the slogan "Milk gives strong bones" and the reference that the calcium in milk helps prevent bone fragility in old age, the so-called osteoporosis. The Federal Office of Public Health (BAG) then instructed the Cantonal Laboratory of Bern to take measures against this advertising. The laboratory prohibited the SMP from using the contested reference, which was confirmed by the Health and Welfare Directorate of the Canton of Bern. The Federal Department of the Interior (EDI) appealed against this to the Federal Supreme Court.
Considerations
The Federal Supreme Court upholds the appeal and confirms the prohibition of the contested advertising. It states that Article 19 (1)(c) of the Food Ordinance (LMV) contains a prohibition on advertising that attributes to a food properties of prevention, treatment or cure of a human disease or creates the impression of such properties. This prohibition serves not only to protect against deception, but also to demarcate between foodstuffs and medicinal products. Milk is to be classified as a foodstuff and may therefore not be advertised with references to a preventive effect against diseases such as osteoporosis.
The Federal Supreme Court considers the advertising ban to be justified, as it is in the public interest and does not disproportionately restrict freedom of…