[1] The meaning of and criteria for determining "an indication or advertisement that has efficacy or effect in preventing and treating diseases, or that is likely to mislead or confuse as medicine," which is prohibited from the interpretation of Article 18 (1) of the former Health Functional Foods Act

[2] The case holding that the court below erred in the misapprehension of legal principles and incomplete hearing in holding that there is no evidence to prove the charge of violating the former Health Functional Foods Act against the defendant, in case where the defendant, while selling health functional foods in the Internet shopping mall and posted advertisements and indications on the main efficacy, ingredients, and product characteristics of the relevant product on the website by installing a ploser mentioned specific efficacy for each product on the website

[1] In interpreting the meaning of Articles 3 subparag. 1 and 18(1) and (2) of the former Health Functional Foods Act and Article 21 of the former Enforcement Rule of the Health Functional Foods Act (amended by Ordinance of the Ministry of Health and Welfare No. 19, Mar. 19, 2010), it shall not be deemed that all the labeling and advertising of the pharmacological efficacy of the health functional foods are prohibited. Even if such labeling and advertising are the same as indicated and advertising that the effect is incidental to the health functional foods within the essential limit of the efficacy of the health functional foods or appears in nutrition, it shall be deemed that the above provision is permitted in cases where it is the same as indicated and advertised that the effect of taking health functional foods is the result of preventing and treating a specific disease. Accordingly, the above provision should be interpreted as restricting the effect of the health functional foods to mislead consumers or confuse the effect of the health functional foods by labeling and advertising that it is directly and mainly intended to prevent and treat a specific disease, and it should be interpreted as an average regulation and confusion of the health functional foods.

[2] The case holding that the contents of the Defendant’s advertisement are included in the contents of the advertisement, which are included in the contents of the advertisement in the Internet shopping mall, and are effective in the prevention or treatment of a specific disease in excess of the intrinsic limit of the efficacy of the above functional food, and it is difficult to easily find out that the name of the above functional food is not a medicine based on the average awareness of the general public, and thus, it is difficult to find out that the name of the above functional food is not a medicine based on the contents of the advertisement, and thus, it is hard to find out that the Defendant’s act constitutes a violation of the law, such as health assistance, nutrition, and the expression of health functional food, which is part of the advertisement, and advertisement of the product, and it is hard to find that there is no possibility that the Defendant’s act constitutes a violation of the law, such as diagnosis and treatment effect, prevention and confusion with the purpose of preventing and preventing the disease, etc.

[1] Articles 3 subparag. 1, 18(1) and (2), and 44 subparag. 4 of the former Health Functional Foods Act (Amended by Act No. 9932, Jan. 18, 2010); Article 21 [Attachment 5] subparag. 1 of the former Enforcement Rule of the Health Functional Foods Act (Amended by Ordinance of the Ministry of Health and Welfare No. 1, Mar. 19, 2010); Article 21 subparag. 1 of the former Enforcement Rule of the Health Functional Foods Act / [2] Articles 18(1) and 44 subparag. 4 of the former Health Functional Foods Act (Amended by Act No. 9932, Jan. 18, 2010)

[1] Supreme Court Decision 2005Do844 Decided November 24, 2006, Supreme Court Decision 2007Do3831 Decided September 6, 2007, Supreme Court Decision 2007Do7415 Decided August 11, 2008

Defendant

Prosecutor

Busan District Court Decision 2009No3900 Decided February 18, 2010

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. Article 3 subparag. 1 of the former Health Functional Foods Act (amended by Act No. 932, Jan. 18, 2010) defines “health functional foods” as foods manufactured (including processed) using materials or ingredients that have functionality useful to the human body. Article 18(1) of the same Act provides that business entities shall not indicate or advertise the name of health functional foods, raw materials, manufacturing methods, nutrients, ingredients, methods of use, quality and traceability of health functional foods, which are likely to have efficacy or efficacy in the prevention and treatment of diseases, or to mislead or confuse them as medicine. Furthermore, Article 3 subparag. 2 of the same Act provides that “the scope of labeling or advertising of health functional foods shall be determined by Ordinance of the Ministry of Health, Welfare and Family Affairs,” and Article 18(1) of the former Enforcement Rule of the Health Functional Foods Act (amended by Act No. 1020, Mar. 19, 201) provides that the scope of labeling or advertising falling under the same shall be determined by Ordinance of the Ministry of Health and Welfare.

However, in interpreting the meaning of the above provision, it cannot be deemed that the above provision prohibits all labeling and advertising about the pharmacological efficacy of functional health foods, and even if such labeling or advertising is an indication or advertising, if it is the same as displaying and advertising that it is incidental to functional health foods or appears as a result of nutrition within the intrinsic limit of the efficacy of functional health foods, it shall be deemed permitted. Accordingly, the above provision should be narrowly interpreted to regulate only the labeling and advertising that directly and mainly aims to prevent and treat a specific disease, and that it regulates only the labeling and advertising that causes consumers to misunderstand or confuse as medicine by labeling and advertising that it is intended to directly and mainly for the prevention and treatment of a specific disease. Whether any labeling or advertising exceeds the limit of functional health foods as advertisements, and is likely to mislead or confuse as medicine, the legal application institution should be determined specifically based on the average perception of the general public (see, e.g., Supreme Court Decisions 2005Do8444, Nov. 24, 2006; 2008Do417, Jul. 17, 2001).

2. According to the reasoning of the judgment below, the court below found that the health functional food of this case is hard to be seen as having expressed the following facts: it is hard to see that the health functional food of this case is directly and mainly for treatment and prevention of disease; it used the expression such as health assistance, nutrition supplement, etc.; it stated that it was not for diagnosis, treatment, and prevention of disease; it was not for users to easily obtain information on the health functional food of this case; it was hard to see that it was a mere device to make use of the Internet shopping mall of this case; considering the following as a whole, it is hard to see that the defendant's advertisement of this case has a certain food nutrition or physiological function; and it is difficult to see that the health functional food of this case used the expression such as health assistance, nutrition supplement, etc.; it was not for diagnosis, treatment, and prevention of disease; and that the width installed in the Internet shopping mall of this case was merely for the purpose of obtaining information on the health functional food of this case.

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

A. According to the reasoning of the judgment below and the records, ① the Defendant, through its website in selling the instant health functional food in the Internet shopping mall operated by himself, set up a boomer referring to the specific efficacy by the health functional food of this case; ② the users of the Internet shopping mall of this case access to the relevant distribution of the health functional food of this case, the Defendant’s major efficacy and main ingredients of the pertinent product, advertisement and labelling of product characteristics, and ③ according to the major efficacy, product characteristics, etc. of the contents of the instant health functional food of this case posted by the Defendant, according to the following factors: (i) the Defendant indicated that the “col halogckium” was effective in psying; (ii) the Defendant stated that the Defendant’s 2ndromatic function of the heart; (iii) strengthening the heart function of the heart; (iv) strengthening the heart function of the relevant product; and (v) preventing 1stmathic cirrosis infection; and (iv) preventing liver infection and 4thral cirropic meology.

B. According to the above circumstances, the contents of the advertisement by Defendant’s selling the health functional food of this case include the contents that it is effective for the prevention or treatment of a specific disease by mentioning name in excess of the specific name added to or taken in, beyond the expression showing the effect of the efficacy of the health functional food of this case, within the inherent limit of the efficacy of the health functional food of this case. Furthermore, in light of the above legal principles, it is sufficient to find out that the content of the advertisement of this case, which is the name of the health functional food of this case, is difficult to easily recognize that the health functional food of this case is not a medicine based on the average perception of the general public. In light of the above legal principles, even though the Defendant stated that the content of the advertisement of this case, not only the health assistance food of this case but also some health functional food of this case, is not a diagnosis, treatment, or disease prevention, it is sufficient to see that the contents of the advertisement of this case directly indicate and advertise that it directly aims at preventing and treating a specific disease of this case, etc., and thus, it is likely to mislead or confuse the efficacy and effect of medicine.

C. Nevertheless, the court below affirmed the judgment of the court of first instance that there is no evidence to acknowledge the facts charged of this case against the defendant on the ground of the circumstances stated in its holding. Thus, the court below erred in the misapprehension of the legal principles as to false and exaggerated labeling and advertisement as stipulated in the former Health Functional Foods Act, which did not exhaust all necessary deliberations, and it has affected the conclusion of its judgment. The ground of appeal pointing this out has merit.

4. 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 Min Il-young (Presiding Justice)