The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal is that the Defendant used the expression “alleys” in the name of the product, and it stated that it is effective for the treatment of alleys based on the average perception of the general public.

The defendant mentioned the name of specific sick person and made an advertisement that may cause mistake and confusion with the effect of preventing or treating a specific disease.

Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby acquitted the instant facts charged.

2. Article 18(1) of the Health Functional Foods Act prohibits all labeling and advertising of the pharmacological efficacy of health functional foods.

shall not be deemed to exist.

Even if such contents are indicated or advertised, it shall be considered to be permitted if it is the same as labeling or advertising that it is incidental to functional health foods or appears as a result of taking nutrition within the essential limit of efficacy of functional health foods.

Therefore, the above provision should be interpreted to limit only labeling and advertising that directly and mainly aims to prevent and treat a specific disease with respect to functional health foods to regulate only the labels and advertisements that cause consumers to misunderstand or confuse as medicine.

Whether certain labeling or advertising exceeds the limits of functional health foods as advertisements, and is likely to have efficacy or effect, or to mislead or confuse as medicine, should be specifically determined by the applicable institution based on the average perception of the general public (see, e.g., Supreme Court Decision 2010Do3444, Dec. 23, 2010). Based on these legal principles, the lower court indicated the circumstances where the Defendant’s advertisement clarified the limitation of functional health foods in the description of the product, as well as the content thereof.