2019No1075 Violation of the Cosmetics Act

1. ① Doz. (1) (63 years old, surplus) Other projects.

Gwangju City of Residence

Seongbuk-gu Seoul basic domicile

2. A;

Manam-si, Sungnam-si

(1) representative director ①

Defendant

Park Jong-chul (Public Prosecution) and Shin Byung-il (Public Trial)

Suwon District Court Decision 2018 High Court Decision 643 decided February 12, 2019

June 5, 2019

All appeals by the Defendants are dismissed.

1. Summary of the grounds for appeal;

A. Legal principles

The court below erred in the misapprehension of legal principles on the grounds that Article 13(1)1 of the Cosmetics Act and Article 2 subparag. 10 of the Enforcement Rule of the Cosmetics Act were erroneous interpretation and thus, the defendants advertised likely to mislead consumers into thinking they were medicines.

B. Unreasonable sentencing

The punishment sentenced by the court below (the fine of 500,000 won) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

1) Relevant legal principles

Article 13(1)1 of the Cosmetics Act prohibits "an indication or advertisement that is likely to mislead people into thinking the person is a drug". Similarly, Article 13(1)1 of the former Food Sanitation Act (amended by Act No. 15484, Mar. 13, 2018; hereinafter the same) prohibits "an indication or advertisement that is likely to mislead people into thinking the person is a drug," which prohibits "an indication or advertisement that is likely to mislead people into thinking the person is efficacy, efficacy, or medicine."

As to the above provisions of the Food Sanitation Act, the Supreme Court cannot be deemed to prohibit all of the labeling and advertising about the pharmacological efficacy of food. Even if such labeling and advertising are the same as labeling and advertising about the effect incidental to food or appearing in the determination of nutrition within the essential limit of the efficacy of food as such food. Thus, the above provisions of the Act and subordinate statutes should be narrowly interpreted to regulate only the labeling and advertising that directly and mainly aims to treat and prevent specific diseases, etc., and to mislead consumers into confusion and confusion as medicine, and it should be determined specifically by the law-applicable institution based on the average perception of the general public (see, e.g., Supreme Court Decision 2005Do844, Nov. 24, 2006; Supreme Court Decision 2005Do8464, Jul. 26, 2007; Supreme Court Decision 2007Do1327, Nov. 24, 2006; Supreme Court Decision 200Do167, Jul. 1, 2007).

2) Determination

In light of the above legal principles, in full view of the following circumstances acknowledged by the court below as a result of the evidence duly adopted and investigated by the court below, the contents posted on the website concerning the mar-mar "mar" sold by the defendants constitute "an indication or advertisement likely to mislead the defendants into thinking it is a drug." Thus, the defendants' assertion of legal principles is without merit.

A) The Defendants posted a publicity letter on ‘m-based mar’ that read ‘m-based mar (i.e. ‘m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. m. are produced and sold for the main purpose of the direct treatment of Atotop, or the mitigation of Atop m. m.

B) Article 2 subparag. 10 of the Enforcement Rule of the Cosmetics Act includes “cosmetics that assist in relaxing the building, etc. due to an Atopy skin.” However, in the case where the defendants simply relaxs the building, etc. due to an Atopy skin, the promotional language made by the defendants is likely to misleads the fear of fear arising from an Atopy skin and mitigates the fear of fear arising from the Atopy skin, and enables the improvement of the surface disorder caused by the Atopy skin, which is based on the average perception of the general public, and thus misleads the efficacy and effect as a medicine.

C) The Defendants asserted to the effect that, as they advertised a mal-mar product as “mal-mar” under Article 2 subparag. 10 of the Enforcement Rule of the Cosmetics Act that belongs to functional cosmetics, they cannot be viewed as an “advertising that is likely to mislead consumers into thinking they are medicine” because they are advertisements that help alleviate the building of a product due to optopy skin, etc.

However, Article 4(1)1 of the Cosmetics Act provides that the manufacturer, etc. of cosmetics who intends to sell, etc. after being recognized as functional cosmetics shall undergo examination by the Minister of Food and Drug Safety or submit a report to the Minister of Food and Drug Safety on the safety and effectiveness of each item. The defendants are in accordance with the above Act regarding the 'm-based distance', and there is no evidence to recognize that the defendants under the above Act was examined by the Minister of Food and Drug Safety or submitted a report to the Minister of Food and Drug Safety. Thus, advertising the 'm-based distance in the above 'm-ray' cannot be deemed permitted.

B. Determination of unfair sentencing on the assertion of unfair sentencing

The lower court sentenced KRW 500,000 to each fine, taking into account the circumstances unfavorable to the Defendants, favorable to the circumstances, etc., and did not find any circumstances that the lower court’s sentencing judgment exceeded the reasonable bounds of discretion, or that it is deemed unfair to maintain the sentencing board of the lower court as it is, when comprehensively taking into account the matters, sentences, and sentencing guidelines, etc., which are the conditions for sentencing in the lower court. From that point of view, there is no reason to find out the circumstances that the lower court’s sentencing was deemed to have exceeded the reasonable bounds of discretion, or that it was unfair to maintain the sentencing board of the lower court. From that point of view, the circumstances and results of the instant crime after the commission of the crime, Defendant 1’s age, character and behavior, environment, etc., are considered appropriate

3. Conclusion

Since the appeal by the defendants is groundless, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

The presiding judge shall give the testimony of the judge.

Judges Park Jong-sung

Judges Park Bo-young