[2] The case holding that the defendant's act of publishing an article with the content that he/she has treatment effect on salt, trapsy, etc. on the Internet homepage of his/her representative does not constitute a false or exaggerated advertisement

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Article 11(1) of the former Food Sanitation Act (amended by Act No. 7735, Dec. 23, 2005; hereinafter the “Act”) provides that “in labels of food and food additives, no indication or advertisement which may cause confusion with medicine shall be made. The same shall apply to nutrition prices, raw materials, ingredients, and uses of food and food additives.” Article 6(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Health and Welfare No. 324, Jul. 28, 2005) provides that “an indication or advertisement that is likely to cause confusion with medicine that has the efficacy of treating diseases” under subparagraph 2 of the same Article is provided that “an indication or advertisement that is listed in a false indication or exaggerated advertisement under Article 11 of the Act and is likely to cause confusion with medicine.”

B. However, in interpreting the meaning of the above provision, the above provision does not mean that all the labeling and advertising of the pharmacological efficacy of food are prohibited. Thus, even if labeling and advertising of such contents are the same as labeling and advertising of the effects that are incidental to food or appear as a result of nutrition within the intrinsic limit of the efficacy of food, it should be permitted. Ultimately, the above provision should be interpreted narrowly as regulating only the labeling and advertising that directly and mainly aims at treating and preventing a specific disease, and that it regulates only the labeling and advertising that cause consumers to confuse and mislead a certain food with a medicine. Whether any labeling or advertising goes beyond the limit of food advertising should be determined specifically by the law-applicable agency based on the average perception of the general public (see Constitutional Court Order 97Hun-Ma108, Mar. 30, 200).

C. According to the records, the Defendant posted a notice on the company’s Internet homepage containing the following: “The Defendant’s emulative treatment of infected or decilating, or the emulative nature of which is 5-6 times or more per day and emulatives at least 5-6 times per day, even if the emulative nature of which is emulative.g., the emulative nature is effective).”

However, the content of the aforementioned posted materials is merely an explanation of various private health care laws using the pharmacological efficacy and mathy widely known, and in light of the fact that such efficacy is unique to or does not include all the contents that are related to the number of motor vehicles produced and sold by the Defendant, the Defendant seems to have posted the said content on its website at the intention of promoting the sale of the number of motor vehicles produced by the Defendant by simply publicizing that it is beneficial to health.

In light of such circumstances, the Defendant explains in detail the production process of the number of motor vehicles that the Defendant produces on its Internet homepage, and considering the fact that the general pharmacological efficacy of the foregoing number is merely a matter widely known to the general public in society, it is difficult to deem that there is a risk of confusion with the number of motor vehicles sold by the Defendant as medicine, not food, on the ground that such notice is viewed from the perspective of the general public of society.

D. Nevertheless, the court below found the defendant guilty of the facts charged in this case on the ground that since there was a false or exaggerated advertisement, as long as an article containing an article that today has a treatment effect such as salt and traps, etc., it constitutes a case of false or exaggerated advertisement. The court below's measure is erroneous in the misapprehension of legal principles as to false or exaggerated advertisement under Article 11 (1) of the Act, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)