INSIGHTS: Nurofen Specific Pain claims: Federal Court finds misleading conduct

In December last year the Federal Court ruled that Reckitt Benckiser (Australia) Pty Ltd (RB) engaged in misleading conduct in contravention of the Australian Consumer Law by representing that its Nurofen Specific Pain products were formulated to treat a specific type of pain, when in reality the products are identical.

The Australian Competition and Consumer Commission (ACCC) commenced legal proceedings against RB earlier in 2015 in relation to the Nurofen Specific Pain range including Nurofen Back Pain, Nurofen Period Pain, Nurofen Migraine Pain and Nurofen Tension Headache products (the ‘products’).

The Federal Court found that RB made misleading representations on the packaging of each of the products and also on its website at www.nurofen.com.au that each product was formulated to treat a particular type of pain and solely or specifically treated that particular type of pain.

The ACCC had conducted price sampling, which indicated the products were being sold at retail prices materially higher than other comparable pain relievers (sometimes almost double), and the ACCC was concerned consumers may have purchased the higher priced products in the mistaken belief that they targeted the specific type of pain mentioned on the packaging and the website.

It was found that each of the products contained the same active ingredient, ibuprofen lysine 342mg, and is no more effective at treating the type of pain mentioned on the packaging than any of the other Nurofen Specific Pain products, and the formulation of each product was the same.

RB ultimately consented to Court orders, including orders that RB ceased any further shipment, distribution and sale of the products packaged in the Nurofen Specific Pain range packaging, removed the products from sale and display in all retail outlets within three months, and published notice of its corrective action on its website and in newspapers.

RB was also ordered to pay the ACCC’s costs. Penalties are yet to be decided. The ACCC Chairman issued a media release saying: ‘Truth in advertising and consumer issues in the health and medical sectors are priority areas for the ACCC, to ensure that consumers are given accurate information when making their purchasing decisions’.

TIPS:

• The ACCC is likely to pay close attention to product claims that are difficult for consumers themselves
  to test.
• Ensure that claims regarding the therapeutic nature and effects of products can be proven to be correct.

For more information about your business obligations under Australian Consumer Law, please contact Principal Douglas Raftesath.

This article was published in the Autumn edition of Pharmacy insights.