[1] The concept and standard of determining a drug subject to the Pharmaceutical Affairs Act

[2] In a case where an expression that could lead to confusion with a medicine is used in labeling or advertising food, whether it violates Article 11 of the Food Sanitation Act and Article 55 (2) of the Pharmaceutical Affairs Act (affirmative)

[3] The scope of permission for labeling and advertising about the efficacy of health-subsidized foods

[4] The case holding that it is in violation of Article 55 (2) of the Pharmaceutical Affairs Act to indicate or advertise the specific name of disease or medical efficacy in selling the two errors, name acids, mass extinguishments, etc. which are health-supporting food

[1] Medicines under the Pharmaceutical Affairs Act include all the concepts that are used for the purpose of the diagnosis, treatment, mitigation, treatment or prevention of diseases of human beings or animals, other than those listed in the Korean Pharmacopoeia under Article 2 (4) 1, or for the purpose of exerting pharmacological functions or functions in the structure or functions of human body or animals (excluding machinery, appliances, packages, designs, etc.). The name, form (container, packaging, design, etc.), name, and the purpose of use indicated therein, efficacy, effect, usage, volume, publicity or explanation at the time of sale, etc., regardless of the existence of any efficacy in the pharmacological action, except those recognized as food as being used for the above purpose or claimed as having efficacy, all of them shall be considered as medicine subject to regulation under the Pharmaceutical Affairs Act.

[2] Even though the food is the food of the item approved under the Food Sanitation Act, since the food subject to the regulation of the Food Sanitation Act is excluded from the drug from the beginning pursuant to Article 2 subparagraph 1, the food is subject to the regulation of the Food Sanitation Act. If an expression likely to confuse with the drug is used in labeling or advertising the food, it is likely to cause harm to the consumer's sanitation by itself, beyond the scope of the food as an indication or advertisement, and thereby, it is in violation of Article 11 of the Food Sanitation Act and Article 6 (1) 2 of the Enforcement Rule of the Food Sanitation Act, which regulates the indication and advertisement of the food from the point of view of preventing sanitary harm caused by the food, and on the other hand, if it is evident that the food is recognized as food only when it is viewed by the general public, such indication or advertisement contains any expression that is likely to mislead the medical efficacy and effect of the food, and thereby, it also constitutes a violation of Article 5 (2) of the Pharmaceutical Affairs Act from the point of view of view of its appropriate improvement.

[3] The regulation of food that is not a medicine should be based on the provisions of the Food Sanitation Act within the scope related to the prevention of sanitary harm. Thus, Article 6 (2) [Attachment Table 3] of the Enforcement Rule of the Food Sanitation Act provides that food assistance shall not be deemed a false label or an exaggerated advertisement for health assistance food, etc. In other words, (1) the expression aiming at promoting the general function of the physical organization within the scope of not including the matters concerning the prevention and treatment of diseases, (2) the expression of food nutrition such as the dissemination of pregnant and abandoned nutrition, the dissemination of the elderly and the elderly, etc., (3) the expression of the food nutrition function and action of the major nutrition ingredients contained in the product, (4) the expression of the recommended contents that are not referred to as a specific disease, etc., shall be interpreted as not to fall under the medical efficacy and effect of the medicine as provided in Article 55 (2) [Attachment Table 3] of the Pharmaceutical Affairs Act.

[4] The case holding that it is in violation of Article 55 (2) of the Pharmaceutical Affairs Act to indicate or advertise the specific name of disease or medical efficacy in selling the two errors, name acids, mass extinguishments, etc. which are health-supporting food

[1] Article 2 (4) of the Pharmaceutical Affairs Act / [2] Article 55 (2) of the Pharmaceutical Affairs Act, Article 2 subparagraph 1 of the Food Sanitation Act, Article 11 of the Food Sanitation Act, Article 6 (1) 2 of the Enforcement Rule of the Food Sanitation Act / [3] Article 5 (2) of the Pharmaceutical Affairs Act, Article 2 subparagraph 1 and Article 11 of the Food Sanitation Act, Article 6 (2) [Attachment 3] of the Enforcement Rule of the Food Sanitation Act / [4] Article 5 (2) of the Pharmaceutical Affairs Act

[1] Supreme Court Decision 84Do2892 delivered on March 12, 1985 (Gong1985, 582), Supreme Court Decision 90Do1236 delivered on October 16, 1990 (Gong1990, 2346) Supreme Court Decision 95Do717 delivered on August 25, 1995 (Gong1995Ha, 3310) / [2] Supreme Court Decision 82Do3054 delivered on February 22, 1983 (Gong1983, 626), Supreme Court Decision 91Do1925 delivered on November 10, 192 (Gong193, 159) / [3] Supreme Court Decision 93Do38139 delivered on April 10, 1984 (Gong3]

Defendant

Defendant

Seoul District Court Decision 97No5234 delivered on September 24, 1997

The appeal is dismissed.

We examine the grounds of appeal.

In light of the legislative purpose and purport of the Pharmaceutical Affairs Act and the purport of Article 2(4) of the same Act, drugs referred to in the Pharmaceutical Affairs Act are deemed to include all those aimed at diagnosing, treating, reducing, treating or preventing diseases of people or animals or at exerting pharmacological functions (excluding machinery, appliances, cosmetics) other than those stated in Article 2(4)1 of the same Act. It is reasonable to interpret that foods are not subject to regulation of the Food Sanitation Act as advertisements, even if they are not subject to regulation of the Food Sanitation Act because they are not subject to regulation of the Food Sanitation Act because they are not subject to regulation of the same sanitary content as indicated in Article 2(4)1 of the same Act (see, e.g., Supreme Court Decision 2007Da144444, supra, if they are deemed to have an obvious effect on the food product, and thus, they are not subject to regulation of the Food Sanitation Act, from the point of view of view of regulating the food product's quality and efficacy as advertisements of the Food Sanitation Act (see, e.g., Supreme Court Decision 2007Do15).

According to the reasoning of the judgment of the court below, the defendant's two errors are recognized as having efficacys in issuing attached documents or publishing advertisements in daily newspapers, such as chronic rain, livestock farming, spawnitis, spawnitis, etc., and spawn spawn spawn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn swn.

In addition, in this case where the defendant was sentenced to a minor punishment more than 10 years of imprisonment, the reason that the amount of punishment is unreasonable is not a legitimate ground for appeal.

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

Justices Lee Yong-hun (Presiding Justice)