A Critical Review of the Constitutional Court Decisions on Non Face-To-Face Sales Restrictions : Focusing on the Case of Pharmaceuticals and Prescription Glasses & Contact Lenses
Authors:   Korean Constitutional Law Asscciation, Jin Ho Sung 
Published: October 2024

This paper aims to examine the constitutional limits on the laws of non face-to-face sales(this concept includes not only online sales but also all other sales methods that do not involve ‘real’ face-to-face interaction), focusing on the jurisprudence of the Constitutional Court. In case of pharmaceuticals, with a excessively limited exception, sales are only permitted in pharmacies(the place itself). Since a temporary allowance during the COVID-19 period, non face-to-face sales have been permitted only under very exceptional conditions. In contrast, many foreign countries generally allow the non face-to-face sales of pharmaceuticals. For instance, Japan, which has a legal system similar to ours, has actively permitted non face-to-face sales to maximize Consumer’s Right to Self-determination, especially after the Supreme Court's ruling that declared the ban on non face-to-face sales unconstitutional.
On the other hand, the Constitutional Court of Korea has ruled that the relevant regulations do not infringe basic rights, citing reasons such as the need for thorough medication guidance, prevention of pharmaceutical contamination, clarification of accountability, enough exceptional allowance for sales outside pharmacies, enough medical services by public health centers, difficulties in assuming the necessity of non face-to-face sales, various problems associated with allowing sales outside pharmacies, and the insignificance of the business disadvantages to pharmacists and other sellers. In the case of prescription eyeglasses and contact lenses, non face-to-face sales are completely restricted. The Constitutional Court has justified the restriction using logic similar to that applied to pharmaceuticals.
However, considering that the constitutional freedom of occupation for sellers is intended to protect the freedom of economic activity rather than the occupation itself, and that it is necessary to recognize the distinct interests of consumer self-determination in guaranteeing it practically—distinguishing it from the freedom of occupation and including it within the protection scope of the Constitution while assessing the degree of restriction in actual judgment—the series of Constitutional Court rulings may not necessarily be based on sound jurisprudence. Specifically, regarding general pharmaceuticals, the primary issue is that access to relatively low-risk medications that require minimal knowledge is not allowed through more accessible means. For prescription drugs, remote methods such as video consultations could be equivalent to face-to-face guidance based on a doctor's prescription, and the complete lack of exceptions for individuals, such as those with chronic diseases, and the elderly, the physically disabled and residents of remote areas who need improved medical accessibility, is problematic. In case of prescription eyeglasses and contact lenses, considering the several distinctions from pharmaceuticals, a critical review of the Constitutional Court's stance of not recognizing the unconstitutionality of such regulations is inevitable.