The scope of "labels and advertisements that have efficacy or effect in the prevention and treatment of diseases or are likely to mislead or confuse them as medicine or health functional foods" prohibited under Article 13 (1) 1 of the former Food Sanitation Act.

Articles 13(1)1 and 94(1)2-2 of the former Food Sanitation Act (Amended by Act No. 14022, Feb. 3, 2016)

Supreme Court Decision 2008Do9200 Decided January 15, 2009 Supreme Court Decision 2015Do6207 Decided July 9, 2015

Defendant

Defendant

Attorney Jeong-chul

Seoul Central District Court Decision 2017No750 decided June 1, 2017

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 13(1) of the former Food Sanitation Act (amended by Act No. 14022, Feb. 3, 2016; hereinafter the same) provides that “No person shall make any false, exaggerated, or secret labelling or advertisement falling under any of the following subparagraphs with respect to the name, manufacturing method, quality and nutrition labelling of foods, genetically modified foods, etc., and the indication of food traceability, and no person shall do so in packages. This provision also applies to nutrition prices, raw materials, ingredients, and uses of foods or food additives.” Article 13(1)1 of the same Act provides that “an indication or advertisement that has the efficacy or effect in the prevention and treatment of diseases, or which is likely to mislead or confuse as medicine or health functional foods.” Accordingly, it may be indicated and advertised that the effect is incidental to foods or as a result of consumption within the essential limit of efficacy as food with respect to the pharmacological efficacy of food, but any act that exceeds such limit and directly makes it possible to see that it is not permitted by the Supreme Court as an average consumer, 2009.

The lower court affirmed the first instance judgment convicting consumers of the charges of this case on the ground that the advertisement of this case, based on the following facts: (a) the Defendant emphasizes that the principal ingredients in the title, etc. of the advertising of this case are “ Lesber”; (b) stated only the content on the product’s product’s ‘s commercial information column’ on the efficacy of preventing the disease of Lesbeasol, without information about the food’s flassing or identification; and (c) stated in the advertisement that the “ Lesberls” has the efficacy corresponding to the pharmaceutical products with respect to the cardiosbeol, cancer, etc., as stated in its reasoning, that the advertisement of this case had the efficacy corresponding to the pharmaceutical products, and made an appearance that the said efficacy is recognized and verified, on the basis that the food is displayed and advertised with a quantity that directly and mainly aimed at treating and preventing a specific disease, and caused consumers to confuse and confuse it as medicine.

The above determination by the court below is in accordance with the legal principles as seen earlier, and even after examining the record, it did not err by misapprehending the legal principles on false or exaggerated advertisements under Article 13(1) of the former Food Sanitation Act, contrary to what is alleged in the grounds of appeal

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

Justices Park Jung-hwa (Presiding Justice)