Facts

Parties:

  • Appellant: [A. AG] , represented by Dr. Thomas Eichenberger and/or Claudio Helmle, attorneys
  • Respondent: Swissmedic, Swiss Agency for Therapeutic Products, Hallerstrasse 7, 3012 Bern

Facts:

  • [A. AG] is the holder of the medicines [B.] Cough Drops and [B.] Cough Syrup, which were originally classified in category C.
  • With the revision of the Therapeutic Products Act as of January 1, 2019, category C was abolished, making a reclassification necessary.
  • Swissmedic reclassified the medicines from category C to category B without prior issuance of a second preliminary decision.
  • The Federal Administrative Court dismissed an appeal by [A. AG] against this decision.
  • [A. AG] files a public law appeal to the Federal Supreme Court and requests the annulment of the judgment of the Federal Administrative Court as well as the classification of the medicines in category D.

Considerations

The Federal Supreme Court first examines the admissibility of the appeal and finds that it was filed in due form and time and that the appellant is entitled to appeal. It bases the facts on those of the lower court, unless there are obvious inaccuracies.

The classification of the medicines [B.] Cough Drops and [B.] Cough Syrup in category B or D is disputed. The Federal Supreme Court refers to the relevant provisions of the Therapeutic Products Act (TPA) and the Therapeutic Products Ordinance (TPO), as well as the Narcotics Act (NarcA).

The Federal Supreme Court states that the active ingredients codeine and dihydrocodeine are subject to the Narcotics Act and represent controlled substances. The medicines in question meet the requirements for a partial exception…