Misleading claim as to the effect of a product improving cardiac output

Supreme Court decision of 30/03/2020 in case 4 Ob 200/19v

"Coenzyme Q10 Capsules", "L-Carnitine Tartrate (Lonza)" and "L-Carnosine Capsules", all three of which are designated as food supplements, shall not be attributed and advertised with the disease-related claim that the product in question or its contents may boost cardiac output from 8 % to 33 %.

Such an assertion is a factual claim and not a subjective value judgment because it gives the impression of being based on certain facts the accuracy of which can be verified objectively. As there is no public interest in perpetuating false factual claims, such claims cannot be justified by invoking the freedom of expression (Article 10 ECHR).

In the present case, the Supreme Court ruled that it was a breach of the general principle prohibiting misleading claims (Section 2 of the Unfair Competition Act) as well as a violation of the special provision applicable to medicinal products (Section 6 para. 3 no. 1 of the Medicinal Products Act) prohibiting companies from attributing an effect to medicinal products or a certain property to an active ingredient for which there is insufficient evidence  based on current scientific knowledge or practical experience. The Supreme Court is likely to have based its ruling on the existence of a product that presents itself as being of a medicinal nature (Section 1 para. 1 no. 1 of the Medicinal Products Act). Pharmacologically ineffective products fall under the definition of a medicinal product if the product is presented as such.

The prohibition of disease-related claims for food supplements is laid down in Section 5 para. 3 of the Food Safety and Consumer Protection Act and in Article 7 para. 3 of the FIR.