[1] Whether Article 11 of the Food Sanitation Act is violated in a case where the contents of food display or advertisement contain an expression that there is an efficacy or effect of medical treatment or prevention of a specific disease (affirmative)

[2] The case holding that in the Internet shopping mall established and operated by the defendant, the defendant used an expression that could lead to confusion with medicine with larnish amount and larnish amount

[1] Article 2 subparag. 1 and Article 11(1) of the Food Sanitation Act, Article 6(1)2 of the Enforcement Rule of the Food Sanitation Act / [2] Article 2 subparag. 1 and Article 11(1) of the Food Sanitation Act, Article 6(1)2 of the Enforcement Rule of the Food Sanitation Act

[1] Supreme Court Decision 2002Do2998 decided Nov. 26, 2002 (Gong2003Sang, 276)

Defendant

Defendant

Chuncheon District Court Decision 2005No250 decided March 16, 2006

The appeal is dismissed.

The food subject to the regulation of the Food Sanitation Act is excluded from the medicine from the beginning pursuant to Article 2 subparagraph 1 of the same Act. Thus, even if a general food is recognized as food under the Food Sanitation Act, and is not recognized as a medicine, if an expression that may cause confusion with a medicine is used in labeling or advertising the food, it would go beyond the scope as an indication or advertisement concerning the quality of the food, thereby causing danger and injury to the consumer's sanitation. Thus, Article 11 of the Food Sanitation Act, Article 6 (1) 2 of the Enforcement Rule of the same Act, Article 6 (1) 2 of the same Act, and Article 6 (1) 2 of the same Act, are violated (see Supreme Court Decision 2002Do2998, Nov. 26, 2002; 2002). Meanwhile, if an indication or effect of food labeling or advertising is included in an advertisement, it is likely to be confused with an expression or effect.

In light of the records, the court below's finding that the defendant was guilty of using an expression that could lead to confusion with medicine in the Internet shopping mall opened and operated by the defendant is justified as it is in accordance with the above legal principles, and there is no error of misapprehending the legal principles as to Article 11 (1) of the Food Sanitation Act, or by misapprehending the legal principles as to Article 11 (1) of the Food Sanitation Act.

In addition, the defendant asserted the grounds for appeal only against the violation of the Food Sanitation Act and received the court's decision, and therefore, the part of the violation of the Pharmaceutical Affairs Act cannot be new arguments in the final appeal court. Moreover, the court below is justified in light of the records that the defendant advertised the efficacy and effect of Black, which is a medicine, and recognized the fact that the defendant sold it in an exaggerated manner and, thereby,

Therefore, the appeal is dismissed. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)