Conviction for violation of the Federal Act against Unfair Competition overturned and remanded for supplementation of the facts

Facts

The appellant [B.] distributed flyers on the topic of "mad cow disease" directly in front of the butcher's shop X. in Winterthur on July 23, August 6, and October 15, 1994. The butcher's shop X. and the Association of Swiss Master Butchers subsequently filed a criminal complaint against [B.] for violation of the Federal Act against Unfair Competition (UWG).

The High Court of the Canton of Zurich convicted [B.] on January 25, 1996 of a violation of Art. 23 in conjunction with Art. 2 and 3(a) UWG and imposed a fine of 2,000 francs. [B.] then filed a federal nullity appeal against this judgment.

Considerations

The Federal Supreme Court overturned the judgment of the High Court and remanded the case to the lower court for supplementation of the facts and a new decision. The Federal Supreme Court reached the following conclusions:

a) The distribution of the flyers directly in front of the butcher's shop X. is objectively capable of influencing competition and thus falls within the scope of the UWG. However, the claim in the flyer of a great danger of transmission of mad cow disease to humans is scientifically controversial, so a reference to this would have been necessary. Since such a reference was missing, the statement was misleading within the meaning of Art. 3(a) UWG.

b) Nevertheless, the conviction of the appellant cannot be based solely on the lack of this reference. In the case of statements in flyers on scientifically controversial issues, unlawfulness can only be assumed with restraint in the required…