Defendant

Prosecutor

Maternal Exchange

Busan District Court Decision 2009 High Court Decision 3886 Decided October 15, 2009

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

In the Internet homepage operated by the defendant, the functional health foods, such as "propool lease, call halogic Pium, scarlogium, pacta acid, red station, proteper, etc., which are items whose function or effect is not widely known to the general public, are advertised by specifically linking the treatment efficacy and effect of the relevant products and each product. As such, such advertising methods are likely to cause the general public to have the efficacy in preventing and treating diseases, or to cause confusion with the medicine. However, the court below erred by misapprehending the legal principles that acquitted the facts charged in this case, which affected the conclusion of the judgment.

2. Summary of the facts charged in this case

From November 13, 2008, the Defendant made a business report from around November 13, 2008 to the trade name of ○○○ apartment located in Busan Dong-dong (number omitted), 104 Dong 1104, and sold functional health foods.

A health food dealer shall not indicate or advertise that the health functional foods have efficacy and effect in the prevention and treatment of diseases in the course of selling health functional foods, or are likely to mislead or confuse them as medicine. However, on November 2008, the Defendant advertised on the Internet homepage (http://www. △△△△△) by using the Defendant’s computer on the Internet homepage of the Defendant (http./www. /W.com) and on the advertisement of “sapsan, red, short-bred, probur, bruor, etc.” which are health functional foods sold by the Defendant, such as depression, local emuls, liver, myopic, myopic, myopic, myopic, myopic, myopic, myopic, myopic, myopic, myopic, myopic, myopic, myopic, myopic, myopic, hyrosis, hyrosis, and clilogic improvement.

3. The judgment of the court below

The court below found that the defendant, through the Internet shopping mall of this case's Internet shopping mall of this case, posted an advertisement phrase on the efficacy of each of the above functional health foods while selling propool lease, Alleylog halogium, Red Potium, Potium, protezine, proteine, lute acid, al. However, each of the above advertisement phrase is merely an explanation of the general effect incidental to each of the above functional health foods or appearing as a result of nutrition, and it is reasonable to view that the content of each of the above advertisement phrase was nothing more than an explanation of the general effect incidental to each of the above functional health foods or the general effect appearing as a result of nutrition, and that it did not reach the extent that consumers cause confusion and confusion as medicine, and on the ground that no other evidence exists to prove the above

4. Judgment of the court below

(1) Relevant statutes and legal principles

Article 18 (1) 1 of the Health Functional Foods Act (hereinafter referred to as the "Health Functional Foods Act") provides that "No business operator shall indicate or advertise that the name, raw materials, manufacturing methods, nutrients, ingredients, methods of use, quality, traceability, etc. of health functional foods have efficacy or effect on the prevention and treatment of diseases, or that they are likely to mislead or confuse as medicine." Article 21 [Attachment Table 5] of the Enforcement Rule of the Health Functional Foods Act, enacted by delegation under Article 21 (2) of the same Act, provides that "No business operator shall indicate or advertise that the health functional foods have efficacy or effect on the prevention and treatment of diseases, or that it is likely to mislead or confuse as medicine, (a) an indication or advertisement that prevents the outbreak of diseases or diseases, (b) an indication or advertisement that has effect on the structure and function of the human body, other than the disease, including (c) an indication or advertisement that has characteristics of the disease or the effect on the identification or symptoms of the disease, (f) an increase in the contents of the disease, advertisement, etc. of the product or drug. shall not be included.

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. Even if such labeling and advertising are the same as labeling 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. As such, the above provision should be interpreted narrowly to regulate only the labels and advertisements that directly and mainly aim at treating, preventing, and preventing certain diseases with respect to functional health foods, etc., and to regulate only the labels and advertisements that cause consumers to confuse and mislead as medicine. Whether any labeling or advertising exceeds the limit as food advertising, it shall be determined specifically by the legal application institution based on the average perception of the general public (see Supreme Court Decision 2007Do7415, Aug. 11, 2008, etc.).

(2) Determination

(5) According to evidence, the defendant introduced that he/she is unable to use the above-mentioned product as an advertisement for the purpose of improving the quality of health-related products, and introduced that he/she is unable to use the product with a certain amount of dynaculous and dynaculous dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynaculic dynac dynaculic dynac dynaculic dynac dynac dynac dynac dynac dy.

5. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park fixed-chul (Presiding Judge)