Supreme Court Rules

The Federal Supreme Court had to deal recently with the marketability of a mouth rinsing solution, that contains a concentration of 0.12% chlorhexidine. A company sells this product as a cosmetic Center of competitors of the company sells a similar product as a medicinal and resulted in a competition dispute with the instances. According to the competitor involved in tackling controversial an unapproved drug, pharmacological effect and is due to their packaging and the product information for the average consumer also as medicines constitutes. Frankfurt am main regional court had rejected the claim of the competitor but also appeal to the Frankfurt stayed higher regional court without success. The Supreme Court overturned both decisions.

First the Supreme Court commented, on the question whether the product was a drug due to its outer appearance (so-called medicinal products presentation). The competitors argued that the Average consumer referring on the therapeutic purpose of the straight through the special emphasis of the fact, that the product of the defendants reduce bacterial plaque, whose reforming Hamid, protect the gums and contribute to the preservation of oral health. The BGH considers this fact but not enough, especially because the product with the purpose especially highlighted in bold “oral care” on the packaging is marked and this remind of the life experience that it was resolving only a nourishing product. Otherwise not follow also from the packaging leaflet, whereby the consumer application of the preparation with discoloration of the teeth and tongue have to expect. Such a notice could lead to a presentation medicines because only then, if the consumer would assume that he could use cosmetic mouth rinses free of side effects and permanently. By a corresponding set of experience can still view of the BGH not assumed be.