The Supreme Court ruled that it is a violation of the Pharmaceutical Affairs Act for a herbal medicine pharmacist to receive an order for diet herbal medicine over the phone and send it via courier. The Pharmaceutical Affairs Act stipulates that drug sellers must sell drugs only at pharmacies. Previously, the appellate court ruled not guilty, but the Supreme Court overturned this with a guilty finding.
The Supreme Court's First Division (Chief Justice Shin Sook-hee) announced on the 14th that it had overturned the appellate court's not guilty verdict for herbal medicine pharmacist Mr. Park, who was indicted for violations of the Pharmaceutical Affairs Act, and sent the case back to the Seoul Eastern District Court.
Mr. Park sold a 30-day supply of diet herbal medicine after conducting a patient interview at a herbal medicine clinic in Seongbuk District, Seoul, in September 2019. This product was reportedly sent via courier. It is said that Mr. Park sent an additional 30-day supply via courier after a phone consultation with the same person two months later.
The first trial found Mr. Park guilty of violating the Pharmaceutical Affairs Act and imposed a fine of 1 million won. The court stated, "Herbal medicine also falls under the category of pharmaceuticals regulated by the Pharmaceutical Affairs Act."
Mr. Park applied for a constitutional review regarding Article 50, Paragraph 1 of the Pharmaceutical Affairs Act at the first trial court, but it was rejected. He argued that applying the law prohibiting the dispatch sale of pharmaceuticals only to herbal medicine pharmacists violates the constitutional principle of excessive regulation. However, the court responded that "the intention of Article 50, Paragraph 1 of the Pharmaceutical Affairs Act is to prevent the misuse of unlicensed drug sales" and that it does not unfavorably discriminate only against specific professions like herbal medicine pharmacists.
However, the appellate court ruled Mr. Park not guilty. The appellate court stated, "Mr. Park resold herbal medicine with the same contents, composition, and price as the one he initially sold, so it seems there was no particular need for additional consultation." It added, "The act of selling herbal medicine and delivering it via courier can be considered the same as ordering, compounding, delivering, and providing medication guidance for pharmaceuticals within the herbal medicine clinic."
The Supreme Court stated that the appellate court misunderstood the legal principles of the Pharmaceutical Affairs Act. The Supreme Court remarked, "Mr. Park should have confirmed the patient's physical changes after taking the herbal medicine and provided guidance after compounding the herbal medicine." It further stated, "Just because the existing herbal medicine ordered has identical contents, ingredients, and price does not mean it should be viewed differently."