Ban on Clearing Hangover AdvertisementCase

(12-1 KCCR 404, 99Hun-Ma143, March 30, 2000)

In this case, the Constitutional Court invalidated the Food Label-ing Standard that banned the use of such phrases as "before or afterdrinking" or "clearing hangover" on food items or the containers orpackaging thereof.

A. Background of the Case

According to the Food Sanitation Act, the Minister of Health andWelfare is authorized to set and put on public notice a standard of marking food items for the purpose of sale if the Minister finds itnecessary for public health. Food items subject to the noticed stand-ard cannot be sold unless they comply with that labeling standard.

The public health authorities found that the recently popularhangover-fighting drinks are encouraging drinking, and thereby doesharm to the public health. Therefore, they added to the labeling standard a provision that 'bans such content as before-or-after-drinking, hangover-clearing, or other phrases inducing drinking.'

The complainants obtained a patent titled hangover-clearingorganic tea and its manufacturing method' but could not place onthe tea manufactured through the patented process a patent mark'hangover-clearing organic tea.' They filed this constitutional com-plaint, arguing that the promulgated standard violates their basicrights.

B. Summary of the Decision

The Constitutional Court decided on a unanimous vote that the instant public notice infringes on the complainants' basic rights asfollows:

The legislative purpose of the instant statutory provision is toban those markings that encourage drinking and protect public healthfrom drinking-related threats.

However, whether and how much to drink is determined by one'sliking of drinking, economic conditions, moods, and other circum-stances. People consume hangover-clearing food items when theyobtain an opportunity to drink, out of expectation that the items will dilute or clear hangover. The markings such as the instant cannotbe said to contribute to drinking. A ban on such markings, if ap-plied against effective anti-hangover agents, blocks consumers' ac-cess to accurate information and genuine goods, thereby deprivingthem of an opportunity to be cleared of hangover. Whether a prod-uct can be marked as hangover-clearing directly and profoundly af-fects the sales of the affected food items. Entrepreneurs and inven-tors, if they cannot mark their products as such, will lose any in-centive to invent or develop them.

Misplaced over-reliance on the hangover-clearing products maylead to such side-effects as over-drinking. Whether to rely on suchproducts

should be left to the sound judgment and responsibility ofconsumers, and not be intermeddled in by the State. The State mayenact a policy measure requiring all hangover-clearing products tohave a warning that exorbitant drinking in reliance on the productswill hurt health, but a flat ban on all the markings referring tohangover-clearing definitely constitutes excessive restriction.

Therefore, this regulation does not constitute the minimum re-striction, does not uphold the balance of interests, and therefore does not satisfy the elements of a legitimate legislation that restricts basicrights. It infringes the right to manufacture and sell hangover-clearing products and the right of expression through advertisementin violation of the rule against excessive restriction.

Furthermore, the constitutional mandate to protect inventors'rights through statutes and the legislative purpose of the Patent Actestablish a patent holder's right to sell his or her products as theessential content of a patent right. If one cannot mark his or herproduct using the name or content of the patented invention, thatproduct will not benefit from the explanatory power and the sellingand attraction point of that patent. The patented product will notfully realize its role and effects. Then, a right to exercise a patentas an occupation will be made hollow. Since such restriction violates the constitutional principle of excessive restriction, it also violates theconstitutional guarantee to the complainants of their property right:patent.