[1] Whether Article 11 of the Food Sanitation Act is applicable in a case where an expression that may lead to confusion with a drug is used in displaying or advertising food that has the efficacy of medical treatment for a disease with an ordinary food but has not been recognized as a drug (affirmative)

[2] Whether Article 11 of the Food Sanitation Act is applicable to a case where an advertisement is made not for food but for raw materials but for food materials with the efficacy of treatment of disease (affirmative), and whether Article 11 of the Food Sanitation Act is applicable to a case where a product is indicated as food not for food (affirmative)

[3] The case holding that the use of an expression to the effect that it has the efficacy of treating diseases by indicating the usefulness of bank trees leaves, which are the raw materials of food, in advertising multiple products, the usefulness of which is not allowed, constitutes an exaggerated advertisement on the quality of food under Article 11 (1) of the Food Sanitation Act

[1] Even if the general food has the efficacy of treating a disease, insofar as the product was approved as food under the Food Sanitation Act and has not been approved as a medicine, the food subject to the Food Sanitation Act is excluded from the first medicine under Article 2 subparagraph 1 of the Food Sanitation Act. Thus, if an expression that may lead to 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 food, and thereby be likely to cause harm to the consumer's sanitation as a false indication or an exaggerated advertisement on the quality of the food. Thus, from the point of view of preventing the sanitary harm caused by the food, Article 11 of the Food Sanitation Act and Article 6 (1) 2 of the Enforcement Rule of the Food Sanitation Act regulate the indication and advertisement of the food.

[2] In light of the fact that Article 11 of the Food Sanitation Act and Article 6 (1) of the Enforcement Rule of the same Act regulate advertisements as if they have the efficacy of treating diseases with respect to the ingredients of the product and raw materials of the product as if they were capable of treating diseases, if the raw materials are advertised as having such efficacy, even though they did not advertise as to the product itself, they should be advertised as if they had such efficacy. Further, even if the product is indicated as food not medicine but food, if there are expressions that are likely to be mistaken as having medical efficacy and effect, the product cannot be deemed as having been advertised as if it had the efficacy of treating diseases, and it also constitutes an exaggerated advertisement.

[3] The case holding that the use of an expression to the effect that the effect of medical treatment is effective by indicating the usefulness of bank trees leaves, which are the raw materials of food, in advertising multi-food products for which food usefulness is not allowed, constitutes an exaggerated advertisement on the quality of food under Article 11 (1) of the Food Sanitation Act

[1] Article 2 subparag. 1 and Article 11(1) of the former Food Sanitation Act (amended by Act No. 6154 of Jan. 12, 200), Article 6(1)2 of the Enforcement Rule of the Food Sanitation Act / [2] Article 11(1) of the former Food Sanitation Act (amended by Act No. 6154 of Jan. 12, 200), Article 6(1) of the Enforcement Rule of the Food Sanitation Act / [3] Article 11(1) of the former Food Sanitation Act (amended by Act No. 6154 of Jan. 12, 200)

[1] Supreme Court Decision 97Do2925 delivered on February 13, 1998 (Gong1998Sang, 830)

A and one other

Defendants

Seoul District Court Decision 2001No2890 Delivered on August 7, 2001

All appeals are dismissed.

1. According to Article 11(1) of the former Food Sanitation Act (amended by Act No. 6154, Jan. 12, 200), if an advertisement contains no false label or exaggerated advertisement as to the name, manufacturing method, and quality of food, and as to the labels of food and additives, no exaggerated advertisement or advertisement which might lead to confusion with medicine shall be made. This provision shall also apply to the nutrition and ingredients of food and additives. According to Article 6(2) of the same Act, the scope of such false label or exaggerated advertisement is to be determined by the Ordinance of the Ministry of Health and Welfare as to food products, and as such, the scope of the advertisement is not likely to be confused with food products as indicated in Article 11(2) of the same Act, it is not possible to regard such products as the name, manufacturing method, quality, raw materials, labels, signboards, or other methods, and thus, it is difficult to regard such products as the name, manufacturing method, advertisement, or information about foods as indicated in the same Article 2 of the same Act.

2. On July 23, 1998, the court below acknowledged that Defendant A, a director of Defendant B Co., Ltd, posted an advertisement of the product of this case manufactured and sold by the above company Eul on July 23, 199, the phrase "I am to purify and purify the human body," which read "I am to purify and purify the crawls when human body taken in." On the other hand, C products such as the product of this case do not constitute health assistive food, special nutrition food, and ginseng products under [Attachment Table 3] of Article 6 (2) of the Enforcement Rule of the Food Sanitation Act, and therefore, it is not allowed to indicate the usefulness of the food. Further, even if the above advertising phrase expressed the usefulness of bank trees, which are the raw materials of the product of this case, it is hard to see that the consumer is able to confuse it with the remaining products or medicine, and there is no error in the misapprehension of legal principles as to the above article 1 of the Food Sanitation Act, and therefore, it cannot be viewed that it constitutes an exaggerated food advertisement.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)