Dismissal of the appeal regarding entitlement to dispense and supply medicinal products

Facts

The Bernese Cantonal Pharmacists' Association (Pharmacists' Association) applied to the Bernese Cantonal Pharmacy Office on July 18, 2006, to grant pharmacies in the canton of Bern entitlement to dispense and supply certain medicinal products. The applications were rejected, whereupon the Pharmacists' Association appealed to the Health and Social Services Directorate without success. The Administrative Court of the Canton of Bern overturned their appeal decision and referred the matter back to the lower court for examination in the sense of the considerations.

During the proceedings, some medicinal products were reclassified into category D. After resuming the proceedings, the Health and Social Services Directorate dismissed the appeal in the sense of the considerations, but found that for some products, the constitutional basis was lacking to impose a restriction on dispensing.

Swissmedic appealed this decision to the Administrative Court of the Canton of Bern, which, in granting the appeal, overturned the decision of the Health and Social Services Directorate. The Pharmacists' Association now requests the Federal Court to overturn the judgment of the Administrative Court of the Canton of Bern and grant pharmacies in the canton of Bern entitlement to dispense and supply certain medicinal products.

Considerations

The Federal Court applies the law ex officio and is therefore not bound by the arguments raised in the appeal or the considerations of the lower court. The appellant association participated in the lower court proceedings and, as the original applicant, is particularly affected by the contested decision, making it entitled to appeal.

The lower court correctly recognized that the classification of individual medicinal products into a dispensing category and the classification of active substances into the list of substances cannot be reviewed. The cantons have no competence to regulate dispensing entitlement, which prevents a healthcare professional with a specific education from dispensing a certain medicinal product in one canton but not in another.

The pharmacists in the canton of Bern are therefore not authorized to dispense all non-prescription medicinal products, as they do not count as medical professionals and are thus not authorized to dispense medicinal products in category C. The cantonal Health and Social Services Directorate was therefore not…