Whether Article 13(1) of the former Food Sanitation Act only regulates labeling and advertising as if it is directly and mainly for the treatment, prevention, etc. of a specific disease with respect to the food, etc. as if it is intended to directly and mainly for the purpose of medical treatment, prevention, etc. of the specific disease (affirmative), and the standard for determining whether labeling and advertising exceeds the limit as food advertising and makes it confused and mispercible

Articles 13(1) and 97 subparag. 1 (see current Article 94(1)2-2, and Article 95 subparag. 1) of the former Food Sanitation Act (Amended by Act No. 11986, Jul. 30, 2013)

Supreme Court Decision 2005Do844 Decided November 14, 2006, Supreme Court Decision 2007Do3831 Decided September 6, 2007, Supreme Court Decision 2007Do7415 Decided August 11, 2008

Defendant

Defendant

Seoul Western District Court Decision 2014No1718 decided April 10, 2015

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. The lower court found the Defendant guilty on the Internet homepage of the Nonindicted Co., Ltd. (hereinafter “Defendant”) of the following facts: (a) by advertising as if the light products sold by the Defendant had efficacy and effect on disease prevention and treatment; (b) selling light products worth KRW 1730,00,00,00, including “the core of water and treatment (FM)” by using the Internet shopping mall, etc.; (c) selling light products of KRW 1730,000,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,000,00,000,00,000,00,00,00,00,00,00.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. Article 13(1) of the Food Sanitation Act provides that “No person shall display or advertise foods, etc. with respect to the name, manufacturing method, quality and nutrition labelling, genetically modified foods, etc., and food traceability labelling, which fall under any of the following subparagraphs, and shall not display or advertise foods or food additives in an exaggerated package. The same shall also apply 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 efficacy or effect in the prevention and treatment of diseases, or which is likely to mislead or confuse them as medicine or health functional foods.”

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 food. Even if labeling and advertising are identical to labeling and advertising that it is incidental to food or that it appears as a result of nutrition within the intrinsic limit of the efficacy of food, it shall be deemed that such labeling and advertising is permitted. Thus, the above provision should be interpreted narrowly to regulate only the labeling and advertising that directly and mainly aims at treating and preventing a certain disease, and it should be interpreted that the above provision regulates only the labeling and advertising that causes consumers to confuse and mislead as medicine. Whether any labeling or advertising goes beyond the limit of food advertising should be specifically determined by the law-applicable agency based on the average perception of the general public (see, e.g., Supreme Court Decisions 2005Do844, Nov. 14, 2006; 2007Do3831, Sept. 6, 2007).

B. Examining the records in light of the above legal principles, the Internet homepage of the non-indicted corporation (hereinafter “the Internet homepage of this case”) where the defendant posted a letter constituting the facts charged of this case is a separate space from the Internet shopping mall website where the defendant sells light salt, and the title of this article posted an advertisement is not directly mentioning the validity of light salt sold by the defendant as “gold-related information,” but also indicating that the content is part of the daily efficacy of salt as it is by extracting the part of the unique efficacy of a foreign famous medical doctor’s degree. Although it includes the contents that it would assist the treatment or prevention of a specific disease, it is generally known that salt is an inferior ingredient for the maintenance of human body, and it is difficult to see that the act of the defendant by posting the above information is beyond the inherent meaning of the food nutrition and physiological function of the food product and its function, and thus, it is difficult to see that the act of the defendant's act of using the above advertising to promote the treatment and efficacy of the product of this case, rather than by directly displaying it.

C. Nevertheless, the court below found the Defendant’s act to constitute an exaggerated advertisement under Article 13(1) of the Food Sanitation Act and found the Defendant guilty of the facts charged. The court below erred by misapprehending the legal principles as to an exaggerated advertisement under Article 13(1) of the Food Sanitation Act, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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 Lee In-bok (Presiding Justice)