August 2017
Long-term, continuous and repetitive illegal advertising acts should be assessed as one act in general. Its continuity is disrupted upon sanction by an administrative agency when another act begins.(Taiwan)
2016.11.25
Oli Wong
The Supreme Administrative Court rendered the 105-Pan-623 Decision of November 25, 2016 (hereinafter, the "Decision"), holding that long-term, continuous and repetitive illegal advertising acts should be assessed as one act in general. Its continuity is disrupted upon sanction by an administrative agency when another act begins.
According to the facts underlying this Decision, the Appellee had broadcast pharmaceutical commercials in its television channel before it was found in the original disposition to have broadcast unapproved medicine in violation of Article 66, Paragraph 3 of the Pharmaceutical Affairs Law, fined in accordance with Article 95, Paragraph 1 of the same law, and ordered to stop the broadcast of the illegal commercial immediately upon delivery of the disposition. Dissatisfied, the Appellee filed administrative appeal pursuant to applicable procedures and obtained a decision that set aside the original disposition and reconsideration disposition and required another disposition. However, the Appellant imposed, after its re-examination, multiple fines totaling NT$ 30.6 million by counting the occurrence of the advertising act. Dissatisfied, the Appellee brought this administrative action and obtained a decision that set aside the original disposition. Therefore, the Appellant dissatisfied with the revoked decision and appealed.
According to the Decision, "advertising" is a collective concept where advertising is engaged through communication at one or multiple times. For a pharmaceutical company that engages in acts to solicit sales by promoting treatment efficacy through multiple communicative means, if the acts are engaged out of a single intent in violation of the obligation not to act under Article 66, Paragraph 3 of the Pharmaceutical Affairs Law, they are successive offenses in violation of the same administrative law obligation. Hence, multiple violations should be legally regarded as the same act. The singularity of the offense is not disrupted until a sanction is imposed by the competent authority. In this case, the Appellee's long-term, continuous and repetitive broadcast of the unauthorized pharmaceutical commercial at issue should be legally regarded as one act. The singularity of the offense was not disrupted until a sanction was imposed by the competent authority. Therefore, when the Food and Drug Administration issued a circular to count the occurrence of advertising acts based on the "days of broadcast" and "broadcast channels," this violated "one offense is not subject to repetitive punishment" principle, a principle adopted in countries under the rule of law. In addition, when advertisements are continuously broadcast for a long time, the penalty amount may be potentially expanded without limit. This also violates the principle of proportionality under the Constitution.
Therefore, it was held in the Decision that the original disposition, which imposed penalties totaling NT$30.6 million for a total of 51 broadcasts with a penalty of NT$600,000 for each broadcast, was erroneous. In addition, since the determination of a penalty falls within the discretion of an administrative agency, the original decision was tantamount to rendering a disposition and exercising the discretion on behalf of the Appellant when it elected to set aside the portion of the penalty in access of NT$240,000 in the decision on administrative appeal and the original disposition (including the decision on reconsideration). Since this was legally inappropriate, the original decision was reversed and remanded.
Oli Wong
The Supreme Administrative Court rendered the 105-Pan-623 Decision of November 25, 2016 (hereinafter, the "Decision"), holding that long-term, continuous and repetitive illegal advertising acts should be assessed as one act in general. Its continuity is disrupted upon sanction by an administrative agency when another act begins.
According to the facts underlying this Decision, the Appellee had broadcast pharmaceutical commercials in its television channel before it was found in the original disposition to have broadcast unapproved medicine in violation of Article 66, Paragraph 3 of the Pharmaceutical Affairs Law, fined in accordance with Article 95, Paragraph 1 of the same law, and ordered to stop the broadcast of the illegal commercial immediately upon delivery of the disposition. Dissatisfied, the Appellee filed administrative appeal pursuant to applicable procedures and obtained a decision that set aside the original disposition and reconsideration disposition and required another disposition. However, the Appellant imposed, after its re-examination, multiple fines totaling NT$ 30.6 million by counting the occurrence of the advertising act. Dissatisfied, the Appellee brought this administrative action and obtained a decision that set aside the original disposition. Therefore, the Appellant dissatisfied with the revoked decision and appealed.
According to the Decision, "advertising" is a collective concept where advertising is engaged through communication at one or multiple times. For a pharmaceutical company that engages in acts to solicit sales by promoting treatment efficacy through multiple communicative means, if the acts are engaged out of a single intent in violation of the obligation not to act under Article 66, Paragraph 3 of the Pharmaceutical Affairs Law, they are successive offenses in violation of the same administrative law obligation. Hence, multiple violations should be legally regarded as the same act. The singularity of the offense is not disrupted until a sanction is imposed by the competent authority. In this case, the Appellee's long-term, continuous and repetitive broadcast of the unauthorized pharmaceutical commercial at issue should be legally regarded as one act. The singularity of the offense was not disrupted until a sanction was imposed by the competent authority. Therefore, when the Food and Drug Administration issued a circular to count the occurrence of advertising acts based on the "days of broadcast" and "broadcast channels," this violated "one offense is not subject to repetitive punishment" principle, a principle adopted in countries under the rule of law. In addition, when advertisements are continuously broadcast for a long time, the penalty amount may be potentially expanded without limit. This also violates the principle of proportionality under the Constitution.
Therefore, it was held in the Decision that the original disposition, which imposed penalties totaling NT$30.6 million for a total of 51 broadcasts with a penalty of NT$600,000 for each broadcast, was erroneous. In addition, since the determination of a penalty falls within the discretion of an administrative agency, the original decision was tantamount to rendering a disposition and exercising the discretion on behalf of the Appellant when it elected to set aside the portion of the penalty in access of NT$240,000 in the decision on administrative appeal and the original disposition (including the decision on reconsideration). Since this was legally inappropriate, the original decision was reversed and remanded.
