{

Facts

{ "title": \"Restoration of suspensive effect in case of withdrawal and recall of CBD oils classified as hazardous foodstuffs", \"facts": \"

Parties and procedural stages:

• The appellant ([A. AG] ), based in [U.] , is a company that, among other things, distributes cannabidiol oils (CBD oils). Between 2018 and 2023, several proceedings were initiated against it for violations of food law, including a penal order of 19 February 2021 for unauthorised medicinal claims, unauthorised novel foods and breaches of notification obligations (cf. para. 1.2).
• The Consumer Protection Office of the Canton of SocRA (AVS) issued several orders between 2019 and 2022 concerning the sale of the CBD oils by the appellant, including measures against unauthorised medicinal claims (25 September 2019 and 9 December 2020) as well as the classification of the CBD oils as non-marketable foodstuffs by the Consumer Protection Office of the Canton of Thun with a sales ban of 2 May 2022. On 22 September 2022, the AVS ordered the seizure of CBD oils at the appellant’s premises (cf. para. 1.2).
• Based on a risk assessment of the THC and CBD contents in the seized oils, the AVS ordered on 18 November 2022 the withdrawal and recall of the products it considered hazardous. The appellant filed an objection against this decision, which the AVS dismissed with a ruling of 7 June 2023 and denied the suspensive effect of any administrative court appeal (cf. para. 1.2).
• On 10 July 2023, the appellant filed an administrative court appeal with the Administrative Court of the Canton of SocRA and, among other things, requested the restoration of the suspensive effect. With an interlocutory decision of 15 September 2023, the Administrative Court dismissed the request for restoration of the suspensive effect (cf. para. 1.2).
• On 17 October 2023, the appellant filed an appeal with the Federal Supreme Court against this interlocutory decision of the Administrative Court of 15 September 2023 and requested the quashing of the decision and the restoration of the suspensive effect (cf. para. 1.2).

Subject matter and dispute:

• The subject matter of the dispute is the dismissal of the request for restoration of the suspensive effect by the cantonal Administrative Court with an interlocutory decision of 15 September 2023 concerning the withdrawal and recall ordered on 18 November 2022 of the products considered hazardous by the appellant (cf. para. 4).
• The AVS classified the appellant’s CBD oils as foodstuffs within the meaning of Art. 4 FoodA based on an overall assessment of its website (including medicinal claims, application areas “skin, hair”, lack of clear cosmetic purpose, mention of “ingestion”) and the submitted documents (cf. para. 7.3.2).
• The appellant argues that its products should be classified as cosmetic products and that the withdrawal and recall of the products classified as hazardous is arbitrary (cf. para. 7).
• The appellant also complains of a violation of its right to be heard and an arbitrary application of cantonal procedural law (§ 11 ContO/CustA) by the lower court (cf. paras. 5 and 6).

", \"reasoning": \"

Admissibility of the appeal and entry requirements:

The Federal Supreme Court examines its jurisdiction and the further entry requirements ex officio (Art. 29 para. 1 FSCA) and with free cognition. In the present case, the appeal in public-law matters against a cantonal final interlocutory decision of a superior court on the ordering of provisional measures is admissible, as the appellant claims that it faces irreparable harm due to the denial of the suspensive effect, in particular the loss of its customer base to competing companies (Art. 93 para. 1 lit. a FSCA). Such economic harm may be of a legal nature if it could not be fully remedied even in the event of a favourable final decision (cf. FSCA 147 III 159 para. 4.1; 2C_876/2021 of 2 November 2022 para. 1.2).

Violation of constitutional rights and limitation of review:

The present appeal concerns a decision on provisional measures. In such cases, the grounds for appeal are limited to the violation of constitutional rights (Art. 98 FSCA). The Federal Supreme Court only examines a violation of constitutional rights if such a complaint has been raised in the appeal and sufficiently substantiated (Art. 106 para. 2 FSCA). The Federal Supreme Court bases its judgment on the facts established by the lower court (Art. 105 para. 1 FSCA). In proceedings against decisions on provisional measures, it may only correct or supplement the lower court’s findings of fact if they are obviously incorrect or insofar as the incorrectness is based on a violation of law within the meaning of Art. 98 FSCA (Art. 105 para. 2 FSCA). Obviously incorrect means arbitrary.

The appellant claims that the lower court’s finding of fact was incorrect in that it assumed in its interlocutory decision that, with regard to the classification of the appellant’s products as foodstuffs, it was more likely to agree with the authority involved in the proceedings. However, this is not a question of fact but of law. The appellant also does not specifically demonstrate in what way the access to the files granted to it was incomplete or the interlocutory decision was based on files that had not been disclosed to it beforehand. The appellant’s right to be heard was not violated – at least with regard to the present interlocutory decision – in particular because the quotations were taken from its own website and the essential elements of the reasoning were already contained in the objection decision of the lower court of 7 June 2023 (cf. Art. 29 para. 2 Cst.; FSCA 139 I 189 paras. 3.3 and 3.5).

Arbitrary application of cantonal procedural law:

The appellant alleges that the lower court arbitrarily applied § 11 ContO/CustA by granting the authority involved in the proceedings a “short deadline” for submitting comments and filing the files. This is not arbitrary, however, as the lower court explained that the previous files and the comments of the Consumer Protection Office were indispensable for assessing the request for restoration of the suspensive effect in view of the importance for the appellant and the public interests at stake – namely public health. Moreover, the lower court acted immediately when it became apparent that no comments would be submitted and limited the “short deadline” to a few days (cf. FSCA 141 III 564 para. 4.1; § 11 para. 3 ContO/CustA).

Substantive review: Classification as foodstuffs and health hazard:

The appellant argues that the lower court wrongly dismissed its request for (re-)granting the suspensive effect by classifying the CBD oils as foodstuffs and classifying them as hazardous. The lower court decides on provisional measures based on a summary examination and weighing of the interests at stake without delving deeply into the factual and legal issues; it has considerable discretion in this regard (cf. FSCA 2C_876/2021 of 2 November 2022 para. 2.1). The Federal Supreme Court only quashes a decision on provisional measures if the contested weighing of interests lacks a reasonable basis and is not comprehensible, i.e. ultimately untenable or arbitrary (cf. FSCA 141 III 564 para. 4.1; 2C_876/2021 of 2 November 2022 para. 2.1).

The lower court classified the appellant’s CBD oils as foodstuffs within the meaning of Art. 4 FoodA based on an overall assessment of its website (including medicinal claims, application areas “skin, hair”, lack of clear cosmetic purpose, mention of “ingestion”) and the submitted documents. This classification cannot be criticised in the context of the summary examination to be carried out and in particular from the perspective of arbitrariness. The lower court did not conclusively answer the legal question regarding the product classification, but merely concluded that it was more likely to agree with the authority involved in the proceedings, according to which the disputed products should be classified as foodstuffs (cf. para. 7.3.3).

The lower court also classified the appellant’s CBD oils as hazardous to health, based on the relevant legal provisions on the safety of foodstuffs (Art. 7 FoodA) and the provisions on permissible maximum levels of contaminants in foodstuffs (including THC under Art. 5 in conjunction with Annex 9 Part B ContO). The risk assessment of the THC and CBD contents carried out by the AVS resp. the Cantonal Laboratory of St. Gallen on 12 October 2022 showed an exceedance of the maximum values for oral ingestion. The appellant did not present anything to the Federal Supreme Court that would cast doubt on the lower court’s risk assessment as arbitrary or overturn the assessment of the health hazard in the context of a provisional assessment (cf. para. 7.4.2).

Final decision:

The appeal is…