Facts

Parties:

  • Appellant: [A. GmbH] , represented by Advocate Moritz Gall
  • Respondent: Cantonal Laboratory, Control Authority for Chemistry and Biosafety, Department of Health of the Canton of Basel-Stadt

Facts:

The Cantonal Laboratory of Basel-Stadt prohibited the [B.] operated by [A. GmbH] from commercially supplying balloons filled with helium or nitrous oxide with a decision dated 26 August 2021. [A. GmbH] filed an appeal with the Department of Health of Basel-Stadt and requested the revocation of the decision. On 19 November 2021, the Cantonal Laboratory conducted an inspection and ordered that the [B.] continue to be prohibited from supplying nitrous oxide for inhalation purposes. [A. GmbH] also filed an appeal against this decision. The Department of Health combined the appeal proceedings and dismissed them with an interim decision dated 17 March 2022. The appeal filed with the Government Council of the Canton of Basel-Stadt was also unsuccessful (judgment of the Appellate Court as Administrative Court dated 13 November 2023).

[A. GmbH] applied to the Federal Supreme Court with a public law complaint dated 12 January 2024 and requested the annulment of the contested judgment and the referral of the case back to the lower court.

Considerations

The Federal Supreme Court examines its jurisdiction and the further conditions for entering into the case ex officio and with free cognition. The complaint, which was filed in time, concerns a matter of public law and is directed against the final and conclusive judgment of an upper court of the canton. The appellant is entitled to bring the legal remedy.

The lower court considered that nitrous oxide falls under chemical law and that its commercial supply to consumers for inhalation purposes violates Art. 8 of the Chemicals Act (ChemA) in conjunction with Art. 55 of the Chemicals Ordinance (ChemO). According to Art. 1 para. 5 lit. c ChemO, nitrous oxide is only excluded from the scope of the Chemicals Ordinance if it is intended as a finished product in the form of a foodstuff, medicinal product, or feed for private or professional use. In an overall assessment, nitrous oxide in bottles is objectively not intended and reasonably not provided for to be taken directly or indirectly by humans for inhalation purposes; it therefore does not constitute a finished product within the meaning of Art. 4 of the Food Act (FoodA).

The lower court also protected the alternative reasoning of the Department of Health, according to which nitrous oxide filled in balloons for inhalation purposes - even if it were a finished product falling under Art. 4 FoodA - would not constitute a safe foodstuff within the meaning of Art. 7 FoodA and therefore could not be placed on the market under food law either. In this context, the Department of Health stated in the appeal decision of 31 August 2022 that nitrous oxide, if inhaled as a finished product, could seriously impair the health of consumers and therefore in no way fulfills the legally relevant requirements of the Food Act and its ordinances.

The…