May 2019
Although food labeling, promotions or advertisements are constitutionally protected for freedom of speech, still reasonable and appropriate restrictions may be imposed on food information for its material relevance to national health (Taiwan)
2019.3.14
Angela Wu
The Taipei High Administrative Court rendered the 107-Su-1416 Decision of March 14, 2019 (hereinafter, the "Decision"), although food labeling, promotions or advertisements are constitutionally protected for freedom of speech, still reasonable and appropriate restrictions can certainly be imposed on food information for its material relevance to national health.
According to the facts underlying this Decision, the Taiwan Food and Drug Administration (hereinafter, the "TFDA") found that the Plaintiff's shopping website had posted the product advertisement at issue, which contained the following wording: "...natural anti-inflammatory analgesic ... diabetic patients may consume with no worries...the fish scale collagen contained in this product has anti-oxidation effect, and it can also relieve the complications of diabetic patients with the anti-inflammatory effect of pineapple enzyme..." (hereinafter, the "Advertisement at Issue"). Since the Advertisement at Issue involves medical efficacy, the matter was referred to the Defendant, which was the local department of health with jurisdiction over the Plaintiff's business location. After the Plaintiff stated its opinion, the Defendant issued the original disposition imposing a fine of NT$600,000. Dissatisfied, the Plaintiff filed an administrative appeal, which was subsequently rejected. As a result, the Plaintiff brought an administrative action.
According to this Decision, the labeling, promotions or advertisements of foods seek to provide objective information about such food product on the food product or by way of communication to achieve the objective of soliciting sales and are by nature expressions of commercial opinions. Although they should be protected for freedom of speech under the Constitution, still lawmakers can impose reasonable and appropriate restrictions on the conveyance of food information, which has material relevance to national health, through legislation out of the need to protect public interest. Therefore, Article 28, Paragraph 2 of the Law Governing Food Safety and Sanitation (hereinafter, the "Law"), the prohibition against any medical efficacy claim in food labeling, promotions or advertisements seeks to ensure that the consumers will receive objective, true and comprehensive information so as to safeguard national health and consumer rights and interests and to promote public interest. This does not violate the protection of the people's freedom of speech under Article 11 of the Constitution and the principle of proportionality under Article 23 of the Constitution.
It was further pointed out in this Decision, a summary of the overall promotional and advertising contents of the Advertisement at Issue and an objective observation based on general social concepts showed that the Advertisement at Issue had deliberately posted texts and pictures about joint pain, back pain, numbness in the legs, joint stiffness, and joint pain and swelling as well as the product at issue on the same webpage, resulting in association with relevant medical efficacy in the minds of the consumers. This shows that the Advertisement at Issue claimed that the product at issue could be used to improve certain physiological conditions and could effectively address certain symptoms. Since medical efficacy was involved, the Advertisement at Issue could be found to be labeling, promotions or advertisements claiming medical efficacy under Article 28, Paragraph 2 of the Law. Therefore, the Plaintiff's complaint was rejected on the ground that the original disposition was not unlawful. This case was still appealable.
Angela Wu
The Taipei High Administrative Court rendered the 107-Su-1416 Decision of March 14, 2019 (hereinafter, the "Decision"), although food labeling, promotions or advertisements are constitutionally protected for freedom of speech, still reasonable and appropriate restrictions can certainly be imposed on food information for its material relevance to national health.
According to the facts underlying this Decision, the Taiwan Food and Drug Administration (hereinafter, the "TFDA") found that the Plaintiff's shopping website had posted the product advertisement at issue, which contained the following wording: "...natural anti-inflammatory analgesic ... diabetic patients may consume with no worries...the fish scale collagen contained in this product has anti-oxidation effect, and it can also relieve the complications of diabetic patients with the anti-inflammatory effect of pineapple enzyme..." (hereinafter, the "Advertisement at Issue"). Since the Advertisement at Issue involves medical efficacy, the matter was referred to the Defendant, which was the local department of health with jurisdiction over the Plaintiff's business location. After the Plaintiff stated its opinion, the Defendant issued the original disposition imposing a fine of NT$600,000. Dissatisfied, the Plaintiff filed an administrative appeal, which was subsequently rejected. As a result, the Plaintiff brought an administrative action.
According to this Decision, the labeling, promotions or advertisements of foods seek to provide objective information about such food product on the food product or by way of communication to achieve the objective of soliciting sales and are by nature expressions of commercial opinions. Although they should be protected for freedom of speech under the Constitution, still lawmakers can impose reasonable and appropriate restrictions on the conveyance of food information, which has material relevance to national health, through legislation out of the need to protect public interest. Therefore, Article 28, Paragraph 2 of the Law Governing Food Safety and Sanitation (hereinafter, the "Law"), the prohibition against any medical efficacy claim in food labeling, promotions or advertisements seeks to ensure that the consumers will receive objective, true and comprehensive information so as to safeguard national health and consumer rights and interests and to promote public interest. This does not violate the protection of the people's freedom of speech under Article 11 of the Constitution and the principle of proportionality under Article 23 of the Constitution.
It was further pointed out in this Decision, a summary of the overall promotional and advertising contents of the Advertisement at Issue and an objective observation based on general social concepts showed that the Advertisement at Issue had deliberately posted texts and pictures about joint pain, back pain, numbness in the legs, joint stiffness, and joint pain and swelling as well as the product at issue on the same webpage, resulting in association with relevant medical efficacy in the minds of the consumers. This shows that the Advertisement at Issue claimed that the product at issue could be used to improve certain physiological conditions and could effectively address certain symptoms. Since medical efficacy was involved, the Advertisement at Issue could be found to be labeling, promotions or advertisements claiming medical efficacy under Article 28, Paragraph 2 of the Law. Therefore, the Plaintiff's complaint was rejected on the ground that the original disposition was not unlawful. This case was still appealable.
