Whether the use of expression that is likely to cause confusion or misunderstanding with the medicine constitutes a false indication and an exaggerated advertisement under Article 11(1) of the former Food Sanitation Act, in cases where food is manufactured and sold as food under the Food Sanitation Act, not a medicine under the Pharmaceutical Affairs Act, even if the efficacy of medical treatment is the general food (affirmative)

It is not prohibited by Article 11(1) of the former Food Sanitation Act (amended by Act No. 6724 of Aug. 26, 2002) and Article 6(1)2 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Health and Welfare No. 254 of Aug. 18, 2003), and labeling and advertising the contents of which are indicated and advertised directly and mainly for the treatment, prevention, etc. of specific diseases with respect to foods, and thus, based on the average perception of the general public, it is prohibited as false and exaggerated advertisements. Even if the general food actually has the pharmacological effect of treating diseases, such labeling and advertising constitutes a false and exaggerated advertisement, and thus, it is prohibited as if it is not manufactured and sold after obtaining permission for items pursuant to the Pharmaceutical Affairs Act, and if it is manufactured and sold as foods according to the Food Sanitation Act, it constitutes a false and exaggerated advertisement under Article 11(1)1 of the same Act.

[1] Article 11(1) of the former Food Sanitation Act (amended by Act No. 6724 of Aug. 26, 2002); Article 6(1)2 of the former Enforcement Rule of the Food Sanitation Act (amended by Ordinance of the Ministry of Health and Welfare No. 254 of Aug. 18, 2003)

Supreme Court Decision 82Do3054 Decided February 22, 1983 (Gong1983, 626), Supreme Court Decision 91Do1925 Decided November 10, 1992 (Gong1993Sang, 159), Supreme Court Decision 97Do2925 Decided February 13, 1998 (Gong198Sang, 830), Constitutional Court en banc Decision 97Hun-Ma108 Decided March 30, 200 (Hun-Ga4, 331), Supreme Court Decision 2001Do4634 Decided June 14, 2002 (Gong202Ha, 1734)

Jinjin Co., Ltd. (Law Firm Gyeong & Yang, Attorneys Inducement-in-law et al., Counsel for the defendant-appellant)

The head of Mapo-gu Seoul Metropolitan Government

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The imposition of penalty surcharge of KRW 11,100,000 against the Plaintiff on November 14, 2002 by the Defendant shall be revoked.

1. Details of the disposition;

(a)The plaintiff is a corporation engaged in the distribution-specialized sales business under subparagraph 5 (b) (6) of Article 7 of the Enforcement Decree of the Food Sanitation Act, which sells beverages (the name of the product is a call system, a carpet, a call system, and a call system) with the content as shown in the Internet homepage (htp:/chlozer.com).

B. The Defendant issued the instant disposition on Nov. 14, 2002, on the ground that the Plaintiff’s above advertising was effective in controlling the call roll, which is the principal offender of an adult disease, and on the effect of pre-donation treatment, scapping prevention, and ging diseases, etc., on which the Plaintiff’s above advertising was conducted, on the ground that: (a) Article 11(1) of the former Food Sanitation Act (amended by Act No. 6724, Feb. 28, 2003; hereinafter “Act”); (b) Article 6 subparag. 2 of the Enforcement Rule of the Act, and Article 6 subparag. 1, Article 65(1), and Article 58(1)1 of the Act, which imposes a penalty surcharge of KRW 11,100,00 in lieu of the business suspension for 15 days by applying the Act to the instant disposition.

[Related Acts and subordinate statutes]

[o] Facts without dispute, Gap evidence 5, Eul evidence 8-1 to 4, Eul evidence 1, Eul evidence 2, Eul evidence 3-1, 2, Eul evidence 6-1 to 4

2. The plaintiff's assertion

The fact that the call contained in a beverage as a call system has the function of lowering the call tech, is medically recognized by the product patent and the Korea Development Institute’s quality certification, and that the call techs affect all kinds of adult diseases constitutes a medical formula of ordinary people. As such, the above advertisements should be allowed as an expression of usefulness for the authorized contents or physical organization function in the field of food, nutrition, etc., and it does not constitute a false or exaggerated advertisement that is likely to cause confusion as medicine by exceeding the medical awareness of ordinary people.

3. Determination

A. The purport of Article 11(1) of the Act, Article 6(1)2 of the Enforcement Rule of the Act, and Article 6(1)2 of the Enforcement Rule of the Act, which prohibits the act by stipulating "an indication or advertisement that has efficacy in treating diseases or that may cause confusion as medicine" as to the quality, etc. of food as an exaggerated advertisement, is to improve the physical quality and maintain health by properly taking in certain kinds of food in a certain manner, and to contribute to the improvement of public health and health by promoting a new ambassador and promoting general resistance against diseases. However, if a business operator promotes food by excessively emphasizing this point only for the sale of food, it would cause harm to public health and sanitation by treating the food as if the business operator had the effect of directly treating diseases, and by recognizing it as a substitute for food, it would prevent such harm and harm and contribute to the improvement of public health and health.

Therefore, all labeling and advertising about the pharmacological efficacy of food is not prohibited by Article 11(1) of the Act and Article 6(1)2 of the Enforcement Rule of the Act, but by labeling and advertising that it is incidental to food or that it appears as a result of nutrition within the essential limit of the efficacy that it is a food. However, if labeling and advertising is based on the average perception of the general public in society by indicating and advertising that it is directly and mainly for the treatment, prevention, etc. of a specific disease, it is prohibited as false or exaggerated advertising because it constitutes the above provision (see Constitutional Court Order 97Hun-Ma108, Mar. 30, 200).

Furthermore, even if the general food actually has the pharmacological effect of treatment of disease, it shall not be manufactured and sold after obtaining permission for items as a medicine after undergoing an examination of safety and effectiveness pursuant to the Pharmaceutical Affairs Act, and if it is manufactured and sold as a food pursuant to the Food Sanitation Act, using an expression that is likely to cause confusion or misunderstanding as a medicine, the main purpose of which is to treat and prevent a specific disease, in labeling or advertising the product, is prohibited (see Supreme Court Decision 2001Do4633, Jun. 14, 2002).

(b)A evidence Nos. 8-1 to 4, Gap evidence Nos. 9 and 10 can be found as follows: according to the plaintiff's assertion, the plaintiff has obtained a patent under each patent law as to the "oil content" and the manufacturing method, which is a functional misleading product which has the functionality effect of roller degradation, and the effect of the beverage on the concentration of the blood hexin test by call and call agents from the Korea Development Institute, and the fact that the beverage has been certified as quality after confirmation of the clinical test result; however, considering the whole arguments stated in Eul evidence Nos. 6-2 to 4, it can be acknowledged that the manufacture report of the beverage as the products of tea (Da) and beverage under the provisions of the Food Sanitation Act for the beverage, and that it has not been obtained a product license under the provisions of the Pharmaceutical Affairs Act for the manufacture of medicines.

(c)If it is recognized that the call system has the effect of lowering the ingredients of beverages, it would be prohibited that the labeling and advertising of consumers would cause them to be confused with medicine when it is sold as food under the Food Sanitation Act, as long as it is based on the average perception of the general public, it constitutes Article 11 of the Act, and that it is no longer possible for the Plaintiff to use the product as an advertising product, as stated in [Attachment 1], to use it as a call system, such as 'culcination, high blood pressure, stroke, and stroke, which are the core disease, and to use it as an advertising product, such as 'the effect of treatment and advertising', 'the average side effects of the product as an advertising product', 'the effect of treatment and advertising of which is the main product of an adult disease, as it is no more specific side effect than the average side effects of the food product as an advertising product, and it is more specific to use it as an advertising product for treatment and treatment.'

Meanwhile, according to the provisions of Article 6 (2) and 3 of the Enforcement Rule of the Act and Article 6 (2) [Attachment Table 3] of the Health Functional Foods Act, the term "health assistance food, special nutrition food, and ginseng product varieties" mainly for the maintenance of health, health promotion, physical quality improvement, food transplant, and general enhancement of physical organization function in relation to their usefulness, expressions of facts officially recognized on food nutrition, expressions of facts contained in products, non-stasty, calcium, steel, Amino acid, etc., and the expression of nutritional and physiological functions and effects on the function of physical organization of major ingredients such as health functional foods, health functional foods, special nutrition food, and ginseng products, etc., are allowed. In light of the above provision and the Health Functional Foods Act enacted from August 26, 203, 199, it is also problematic whether the above advertisement can be permitted as an expression of usefulness in the above provision in accordance with the above provision, but the above provision can not be specified in the Enforcement Rule of the Health Functional Foods Act [Article 1].

(d)Therefore, an Internet advertisement of a beverage with a call as shown in [Attachment 1] constitutes "an indication or advertisement that is capable of being confused with a content that is capable of treating a disease or that is likely to be confused with a medicine" under Article 11(1) of the Act and Article 6(1)(2) of the Enforcement Rule of the Act, so the Defendant's disposition imposing the penalty surcharge in this case on that ground shall be lawful.

4. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Young-tae (Presiding Judge)