건강기능식품법상 기능성 표시·광고 사전심의제도의 위헌성 여부에 관한 연구

A Study on Unconstitutionality of the pre-deliberating system of Labelling and Advertisement in Health Functional Food Act

These days there is tendency to classify health functional foods under medical supplies. False or exaggerated advertisement of health functional foods could therefore endanger the consumer’s life, body and health. To guarantee freedom of the business activities, current Health Functional Food Act adopted the Negative system. At the same time, however, a pre-deliberating system has been put in place in order to protect consumers’ right to know through providing accurate information and thereby preventing false or exaggerated advertisement of health functional foods. However, this pre-deliberating system is similar to ‘pre-censorship on press and publication’ stated in Constitution article 21 ②, therefore it is possible to infringe on freedom of expression. Thus, this article examines the labelling and advertisements which are forbidden in current Health Functional Food Act and the effects of their violation; and this article also examines the possibility of this pre-deliberating system being unconstitutional with regards to the labelling and advertisements of health functional foods. The finding of this article shows that this pre-deliberating system can be categorized under items that should be censor-free as stated in the Constitution. In addition to this, under this system, it is illegal to advertise unless approval has been granted by the pre-deliberating board. Moreover, it is mandatory for the pre-deliberating board to conduct an administrative deliberation process. These conditions above all satisfy the components that calls for the pre-censorship prevention principles, as stated by the Constitutional Court: i) mandatory product presentation for approval, ii) an administrative-subjected pre-deliberating process, iii) compulsory process which facilitates the prevention of unapproved expression and pre-deliberating, which indicate the possibility of constitutional violation. Therefore, it is essential to modify the system by removing the possibility of direct/indirect influence from the administrative board’s pre-deliberating measures or processes. It is recommended that nongovernmental associations steer the process instead in order for the pre-deliberating system to be free from the accusations of possibly being unconstitutional.