Legal review of a product!
December 13, 2010 | 25,00 EUR | answered by Jan Wilking
Dear Sir or Madam,
The following situation: Let's say I have an online shop (in Germany) in which I sell a product that is marketed as a bath salt.
However, most customers use it as a means to get high. I also warn on my website against human consumption and alert to possible symptoms that may occur after consumption.
The manufacturer is based in Europe and confirms to me the legality of the product, stating that it does not contain any banned substances and does not violate the German Drug Law (AMG/ BtmG).
Nevertheless, I am somewhat uncertain and would like to have assurance that I can continue to legally sell this product.
I will also have an analysis done on the most common controlled substances. The product is called: Charge Bath Salt.
If you have any questions, please feel free to contact me.
Thank you in advance.
Kind regards,
Dear inquirer,
I am happy to answer your inquiry taking into account the facts you provided and your commitment as follows:
As long as the trade with the product is not prohibited or restricted, i.e. it does not fall under the BtMG or AMG in particular, you can generally sell it through your online shop.
However, since it is known that the product is also used for "intoxicating" purposes, as a seller, you have a special duty of inquiry and examination, which must meet strict requirements. Therefore, you cannot rely solely on the information provided by the producer of the bath salts. According to the case law, the producer is not a reliable source of information, see OLG Zweibrücken: judgment of 25.05.2010 - 1 Ss 13/10 (http://dejure.org/dienste/vernetzung/rechtsprechung?Text=1%20Ss%2013%2F10&Suche=1%20Ss%2013%2F10).
If, as planned, you conduct your own examination for prohibited ingredients, have a written assurance of legality from the manufacturer, and do not advertise the product as a narcotic, but rather clearly highlight the dangers of consumption, there are currently no legal obstacles to your trade in my opinion. However, you should always keep an eye on whether the ingredients may be included in the BtMG by a legal regulation at a later date (as was the case with "Spice"), as this would make further trade illegal.
I hope this provides you with a helpful initial orientation.
Please note that without knowledge of all circumstances, I cannot provide a definitive advice in this initial consultation. If you require a final assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Best regards,
Lawyer Jan Wilking
