VG Trier: Legality of the prohibition of the marketing of CBD-containing products as medicinal by presentation

Co-Author: Cao, My Anh

A recent decision of the Administrative Court of Trier dated August 1, 2022 (Ref.: 6 K 581/22) confirms the prohibition of the marketing of CBD-containing products as medicinal by presentation.

The plaintiff distributed products containing the active ingredient cannabidiol (CBD), which are not approved as a medicinal products. The products were a "skin care product" designated by the plaintiff and a "supplementary feed" for dogs. In a decision dated December 9, 2021, the State Office for Social Affairs, Youth, and Supply (LSJV) determined that the CBD-containing products it marketed were medicinal by presentation and prohibited it from marketing them. The State Office argued that the products gave the impression that they were intended as a means to cure or prevent human or animal diseases or pathological complaints. The plaintiff took legal action against this prohibition order, arguing in her complaint that the products had been incorrectly classified as medicinal products by presentation and that the assessment had not been made objectively on the basis of all the circumstances to be considered.

The Trier Administrative Court ruled on August 8, 2022 (Case No.: 6 K 581/22) that the LSJV had correctly classified the disputed products as medicinal products by presentation. The concept of a presentation drug must be interpreted broadly and includes not only products that have an actual or therapeutic effect, but also products that do not have a sufficient effect or do not have the efficacy that the consumer would, however, expect after the presentation. For the average consumer, the overall impression is created that the product has a healing, soothing or preventive effect in the treatment of skin diseases and other skin problems. Therefore, from the consumer's point of view, the product is not to be understood as care accompanying therapy, but as a therapeutic measure. The applicant conveys the impression to consumers that the active ingredient CBD has a pharmacological effect. Accordingly, contrary to the plaintiff's view, the product cannot be classified as a cosmetic product pursuant to Section 2 (3) No. 3 AMG, since the product does not serve exclusively or predominantly to care for and maintain the health of the skin, but must be classified as a product with healing-promoting properties.
From the point of view of the dog owners, the impression was created that the product could be used in the treatment of joint diseases and prophylactic purposes so the product was a veterinary medicinal product according to § 3 Para. 1 No. 1 TAMG and not a conventional feed.