식품 등의 표시·광고에서 부당한 표시 또는 광고 행위의 금지 - 서울행정법원 2024. 8. 23. 선고 2023구합90392 판결 (소위 ‘버터맥주’ 사건)을 중심으로 -

Consumers purchase products after checking various information through the labeling or advertising of products, and therefore, the system concerning product labeling and advertising performs the function of providing objective information about the products to consumers and helping them make rational purchasing choices. The ACT on Labeling and Advertising of Foods aims to ensure proper labeling and advertising for food, food additives, utensils, or containers·packaging so as to guarantee consumers’ right to know and establish a sound order in transactions, thereby contributing to consumer protection (Article 1 ACT on Labeling and Advertising of Foods). With regard to matters prescribed by Presidential Decree, such as the name, manufacturing method, and ingredients of food, etc., it prohibits 1) labeling or advertising that is likely to be perceived as having efficacy in preventing or treating diseases, 2) labeling or advertising that is likely to be perceived as a pharmaceutical, 3) labeling or advertising that is likely to be perceived as a health functional food even though it is not, 4) false or exaggerated labeling or advertising, 5) labeling or advertising that deceives consumers, 6) labeling or advertising that defames other businesses or other businesses’ products, 7) labeling or advertising that unfairly compares one’s own or one’s own food, etc. with another operator or another operator’s food, etc. without objective grounds, 8) labeling or advertising that significantly violates public morals or social ethics by encouraging gambling or using obscene expressions, and 9) labeling or advertising that uses a name, trademark, or container·packaging, etc. identical or similar to that of goods not falling under the category of food, etc. prescribed by Prime Ministerial Decree, which could lead to confusion or misidentification (Article 8 Paragraph 1 ACT on Labeling and Advertising of Foods). In this study, among the false(unfair) labeling or advertising prohibited by the ACT on Labeling and Advertising of Foods, false or exaggerated labeling or advertising is examined with a focus on the Seoul Administrative Court’s decision of August 23, 2024, 2023Guhap 90392(the so-called ‘Butter Beer’ case: subject case), and in particular, directions for improving the ACT on Labeling and Advertising of Foods in this regard are also reviewed. In other words, the ACT on Labeling and Advertising of Foods, which has a special-law status under the ACT on Fair Labeling and Advertising, prohibits false or exaggerated labeling or advertising of food, and when unfair labeling or advertising occurs in the area of food, the ACT on Labeling and Advertising of Foods takes precedence over other laws (Article 3 ACT on Labeling and Advertising of Foods). On the other hand, for matters not prescribed by the ACT on Labeling and Advertising of Foods, the general law regarding labeling and advertising, namely the ACT on Fair Labeling and Advertising, applies. Through the (Korea) Fair Trade Commission, 「Notification of Types and Standards of Unfair Labeling and Advertising(Fair Trade Commission Notice No. 2019-11, effective December 12, 2019)」, the ACT on Fair Labeling and Advertising stipulates in detail the judgment criteria and general guidelines for false or exaggerated labeling or advertising that may deceive consumers or cause them to misunderstand and that may hinder fair trade. However, the ACT on Labeling and Advertising of Foods has very insufficient provisions in this regard. Therefore, considering the role of the ACT on Labeling and Advertising of Foods as a special, integrated, and fundamental law governing the labeling and advertising of food, there is a need to legislate concrete and detailed judgment criteria and general guidelines concerning “false or exaggerated labeling and advertising” of food that is prohibited by the ACT on Labeling and Advertising of Foods. In addition, the ACT on Labeling and Advertising of Foods does not define the concept of “consumer”, and thus, even in determining “consumer misunderstanding” regarding whether certain “false or exaggerated labeling” may deceive consumers or cause them to misunderstandsuch as in the subject case-there are no concrete and detailed provisions, which fails to align with the legislative purpose or intent of the ACT on Labeling and Advertising of Foods. In the case of food, there can be situations in which certain groups of consumers are targeted, as with specialized foods for medical use, and as shown in the subject case, marketing often targets specific consumer segments. Accordingly, it is necessary for the ACT on Labeling and Advertising of Foods and its subordinate laws to provide a concrete and detailed definition of “consumer” for the purpose of determining whether labeling or advertising is unfair under the ACT on Labeling and Advertising of Foods. Furthermore, in the subject case, labeling and advertising are strictly distinguished in determining what constitutes unfair labeling and advertising. However, in the case of “labeling,” there are often situations where it is indirectly affected by “advertising or promotional activities.” Thus, when deciding whether something constitutes unfair “labeling” (false or exaggerated “labeling”), it is necessary to take advertising, marketing, promotional activities, etc. into account in a holistic and comprehensive manner. It would be worth considering legislation (revision) in the ACT on Labeling and Advertising of Foods or its subordinate laws that clearly stipulates this. Meanwhile, the ACT on Labeling and Advertising of Foods holds a special-law status in relation to the ACT on Fair Labeling and Advertising. Therefore, it would be appropriate for the penalty provisions in the ACT on Labeling and Advertising of Foods for the same act to be stricter than or at least the same as those under the general law, the ACT on Fair Labeling and Advertising. However, the current provisions are actually weaker for “False or Exaggerated Labeling or Advertising” among false(unfair) labeling or advertising (ACT on Labeling and Advertising of Foods: imprisonment of not more than five years or a fine of not more than 50 million won, ACT on Fair Labeling and Advertising.: imprisonment of not more than two years or a fine of not more than 150 million won). Hence, there is a need to reconcile these provisions for consistency in penalty regulations between the laws.