Facts

The sole proprietorship [B.] , represented by [A.] , markets the products "Swiss Soya-Drink Original" and "Swiss Soya-Drink Naturel/Naturale". These products are labelled with elements referring to Switzerland, including the term "Swiss", the Swiss flag and an image of the Matterhorn.

By order of 11 April 2022, the Zurich Cantonal Laboratory (KLZH) ruled that the products in question may no longer be placed on the market in their current form, as the labelling elements referring to Switzerland were deemed misleading. [A.] filed an objection against this decision, which the KLZH rejected in its decision of 17 May 2022. [A.] then appealed this objection decision to the Health Directorate of the Canton of Zurich, which dismissed the appeal in its decision of 6 April 2023. The Health Directorate also ordered [A.] to inform the KLZH within 30 days of the legal force of the decision of the measures taken to comply with the legal requirements and prohibited the products from being placed on the market in their current form five months after the legal force of the decision.

[A.] filed an appeal against the appeal decision of the Health Directorate with the Administrative Court of the Canton of Zurich, which dismissed the appeal by judgment of 13 June 2024. [A.] then filed an appeal in public law matters with the Federal Supreme Court and requested that the judgment of the Administrative Court be set aside. In the alternative, [A.] requested that the judgment be set aside and the matter referred back to the Administrative Court.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal. The appeal was filed in due time and form and concerns a matter of public law. The appellant is entitled to file the appeal and there are no grounds for exclusion under Art. 83 FSCA. The Federal Supreme Court therefore admitted the appeal.

The appellant argued that the lower court had not correctly assessed the manufacturing process of the products in dispute and thus violated the food law prohibition of deception as well as the requirements for a Swiss indication of origin. The Federal Supreme Court held that these objections concern legal issues that do not require new findings of fact. The lower court had sufficiently established the facts and correctly assessed the relevant legal issues.

The appellant also complained that the lower court had violated the right to a fair hearing (Art. 29 para. 2 Cst.) and Art. 6 para. 1 ECHR by not conducting an inspection of its premises or an oral hearing. The Federal Supreme Court stated that the right to a fair hearing is generally satisfied by the opportunity to submit written observations and that there is no entitlement to an oral hearing. Moreover, the lower court had been entitled to dispense with a public hearing as the dispute could be decided on the basis of the files and the written submissions of the parties without further ado. The lower court’s anticipated assessment of the evidence was not arbitrary and therefore not objectionable.

On the merits, the Federal Supreme Court examined whether the presentation of the products violates the food law prohibition of deception (Art. 18 FoodA). The lower court had found that the labelling elements are capable of giving average consumers the impression that the products are of Swiss origin. The Federal Supreme Court confirmed that the presentation of the products could create false impressions in the minds of average consumers regarding the origin of the raw materials. In addition, the products…