The Supreme Administrative Court rendered the 106-Pan-387 Decision of July 27, 2017 (hereinafter, the “Decision”), holding that communication involving a food operator’s use of media such as television, radio broadcast and films to conduct promotions containing specifics about its food products to familiarize a multitude of people with the contents of such promotions is deemed advertising.
According to the facts underlying this Decision, the Defendant audited the Plaintiff once again after the outbreak of the Gutter Oil Scandal. The Plaintiff’s employees stated during a press interview that “we did not us such oil at all,” and “we used Chuan Tung Palm Oil, which is made of palm oil and is not made of lard,” denying the use of Chuan Tung Hsiang Lard Oil. The Defendant subsequently held that the above statements were likely to cause misperception or misunderstanding among the people due to false advertising in violation of Article 28, Paragraph 1 of the Food Safety Law. Therefore, a fine of NT$500,000 was imposed pursuant to Article 45, Paragraph 1 of the same law. The Plaintiff dissatisfied and brought an administrative action. The original trial court rendered the 105-Su-343 Decision (hereinafter, the “Original Decision”), which “set aside the decision on administrative appeal and the original disposition.” Dissatisfied, the Defendant filed this appeal.
According to the Decision, it was held in the original decision that in reference to relevant provisions of the Food Safety Law and Article 23 of the Enforcement Rules of the Consumer Protection Law, it was held that the communication involving a food operator’s use of media such as television, radio broadcast and films to conduct promotions containing specifics about its food products to familiarize a multitude of people with the contents of such promotions is deemed advertising conducted by the food operator for its food products. However, it was pointed out in the Decision that the original decision was not appropriate and was erroneous for its application of inappropriate laws since it found that if employees of a company were not aware of the actual circumstances and were “passively” requested to speak without authorization during a press interview in the progression of a high profile food safety incident and without touching upon the motivations or objectives of sales, this would not constitute “advertising” pursuant to such provision of the Food Safety Law. Therefore, the original decision was set aside on such basis.
It was further held that according to the backgrounds of the statements made by the Plaintiff’s interviewees and the entire contents of the statements, there should be room for further exploration to determine if the false elements of the statements which “promoted to a multitude of people through television that the Plaintiff had not used Chuan Tung Hsing Lard Oil” constituted false food advertising. Therefore, the original decision was reversed and remanded to the original trial court for a more appropriate decision.