식품 이물 혼입의 규제와 소비자보호에 대한 한국과 미국의 비교법적 연구

This article examines the regulatory and liability framework governing the contamination of food products with foreign materials in Korea and the United States, from the perspective of consumer protection. On the public law side, Korea relies primarily on the Food Sanitation Act, its subordinate regulations, and administrative guidelines such as the “Guidelines for Preventing Foreign Matter Contamination,” as well as the Ministry of Food and Drug Safety’s notification on the scope of “reportable foreign matter” and related investigation procedures. These instruments define the concept and categories of foreign matter, establish reporting and investigative mechanisms, and provide the basis for administrative measures such as recalls and business suspensions. In the United States, by contrast, the Federal Food, Drug, and Cosmetic Act (FDCA) and the enforcement powers of the Food and Drug Administration (FDA) form a preventive, public health–oriented regulatory system, where the concept of “adulterated food” plays a central role in addressing the risks associated with foreign matter in food. On the private law side, Korean law addresses foreign matter incidents through a combination of the Product Liability Act, tort law, contractual warranty for defects, and consumer protection legislation. The 2021 amendments to the Product Liability Act introduced a presumption of defect under certain conditions and expanded punitive damages, thereby seeking to alleviate the evidentiary burden on consumers and to strengthen deterrence against manufacturers’ safety failures. However, the actual application of these mechanisms in food contamination cases remains limited, and the overall structure is criticized for insufficiently realizing the “consumer expectation” standard and for lacking effective collective redress mechanisms. In the United States, civil liability is primarily governed by state law, drawing on implied warranties under the Uniform Commercial Code and product liability doctrines such as the foreign–natural doctrine, the reasonable expectation test, and blended approaches that combine the two. The recent decision of the Ohio Supreme Court in Berkheimer v. REKM, L.L.C., which emphasized the naturalness of chicken bones in “boneless” products and relied on whether the consumer could have anticipated and guarded against the risk, has been criticized as a de facto return to the foreign–natural doctrine and a retreat from a genuinely consumer-focused standard. The subsequent introduction of Ohio Senate Bill 38, which seeks to codify the reasonable expectation test and to reaffirm the role of the jury, illustrates the unsettled state of U.S. law in this area. Through a comparative analysis of these administrative and civil regimes, this article argues that Korea should move toward a more coherent consumer-protection–oriented framework by: (i) explicitly codifying a consumer expectation standard for defect in food contamination cases; (ii) legally linking administrative standards—such as the notification on reportable foreign matter and the contamination-prevention guidelines—to presumptions of defect and negligence in civil proceedings; and (iii) enhancing collective redress mechanisms and punitive damages as functional substitutes for the jury system, which does not exist in ordinary civil cases in Korea. By situating Korean law within the broader comparative context of U.S. regulatory and liability developments, including the controversy surrounding Berkheimer and SB 38, the article seeks to present a normative blueprint for a more balanced allocation of risks between consumers and suppliers and for a more effective realization of consumer protection in cases involving foreign matter contamination in food.