商業性言論之管制與保護──從營養保健食品管制的思考【本期企劃】 試閱
Constitutional Protection over Commercial Speech
國人對食品營養攝取之重視，帶動了我國營養保健食品市場及產業的快速發展，但伴隨著營養保健食品競爭而出現的各類廣告、標示及行銷手段，也因其可能涉及內容不實、誇大效果甚或是消費者詐欺而有管制之必要。本文檢析我國及美國對商業性言論管制之保護，特別是其在憲法言論自由保護脈絡下所受之保護，以及對商業性言論管制對應適用之審查標準，進而審視對營養保健食品之廣告、標示或行銷管制之違憲審查操作，以及法治發展之方向。
Freedom of expression is one of the fundamental rights widely recognized and protected by almost all countries. Nevertheless, not all expressions enjoy the same level of protection. Following the two-tier theory adopted in both the U.S. and Taiwan, expressions were further categorized based on the value of their content. In contrast with the high-value expressions like political speech that were provided complete constitutional protection, commercial speech was often considered less important and was only afforded a lower degree of protection. Noticing that the dietary supplement markets in Taiwan are developing rapidly, and there is a growing need to regulate the commercial speech deployed by business operators in this market. This paper will center on the constitutional protections afforded to commercial speech in Taiwan, including the content of commercial speech and the applicable standard of review. Furthermore, this paper shall also examine the constitutionality of the regulatory measures deployed to prevent consumer fraud and maintain market competition order.
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