Australia: Federal Court finds Nurofen specific pain claims were misleading

On 11 December 2015 the Federal Court ruled that Reckitt Benckiser (Australia) Pty Ltd (Reckitt Benckiser) engaged in misleading conduct by representing to Australian consumers that its Nurofen Specific Pain products were each formulated to treat a specific type of pain, when in actual fact, the products were identical.

Background

The Australian Competition and Consumer Commission (ACCC) commenced legal proceedings in March this year against Reckitt Benckiser in relation to its Nurofen Back Pain, Nurofen Period Pain, Nurofen Migraine Pain and Nurofen Tension Headache products (together, the Nurofen Specific Pain products). The ACCC was concerned that:

• the Nurofen Specific Pain products were priced significantly higher than other comparable analgesic products which also act as pain relievers – in particular, the ACCC conducted price sampling which indicated that the Nurofen Specific Pain products were being sold at retail prices almost double that of Nurofen's standard ibuprofen products and the general pain relief products of its competitors, and
• consumers may have purchased these higher-priced products on the mistaken belief that they specifically targeted a certain type of pain, based on representations contained on the Nurofen Specific Product range packaging.

After an adjournment at the commencement of the trial, Reckitt Benckiser admitted various contraventions of the Australian Consumer Law (ACL) (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) and in further cooperation with the ACCC, agreed to the terms of proposed orders.

What did the Federal Court find?

Having regard to the parties' agreed terms, the Federal Court ruled that Reckitt Benckiser made misleading representations on the packaging of each Nurofen Specific Pain product, and on its website at http://www.nurofen.com.au/, that each product was specifically formulated to treat a particular type of pain. These representations were made despite the reality that:

• each product in the Nurofen Specific Pain range contains the same active ingredient, namely ibuprofen lysine 342mg
• the indications approved by the Australian Register of Therapeutic Goods (ARTG) for each product in the Nurofen Specific Pain range are the same
• each product in the Nurofen Specific Pain range is of the same formulation, and
• no product in the Nurofen Specific Pain range is any more or less effective than the others in treating any of the symptoms shown on the packaging of the products in the Nurofen Specific Pain range.

The Federal Court was satisfied on the evidence that Reckitt Benckiser:

• engaged in conduct that is misleading or deceptive or likely to mislead or deceive in contravention of section 18 of the ACL, and
• engaged in conduct that is liable to mislead the public as to the nature, characteristics or suitability for their purpose of the products comprising the Nurofen Specific Pain range within the meaning of section 33 of the ACL.

As a result, Reckitt Benckiser was ordered to:

• cease any further shipment, distribution and sale of all Nurofen Specific Pain products packaged in the Nurofen Specific Pain range packaging
• remove all Nurofen Specific Pain range products packaged in the Nurofen Specific Pain range packaging from display and sale in all retail outlets
• publish notice of the corrective action on its website and in newspapers
• implement a consumer protection compliance program
• pay the ACCC's costs, and
• pay penalties which are to be determined by the Court at a later date.

Reckitt Benckiser consented to the orders made by the Federal Court.

Since the decision was handed down, Reckitt Benckiser has indicated that it did not intend to deceive customers with its product packaging or other marketing activities, and took a cooperative approach in the proceedings with the ACCC.

Under sections 18 and 33 of the ACL, intention is not relevant to whether or not there has been misleading or deceptive conduct. So long as a misleading representation has been made, a company can be liable for breach.

The ACCC has agreed to an interim packaging arrangement with Reckitt Benckiser following the removal of the relevant products from stores. The interim packaging will clearly disclose to consumers that the products are equally effective for other forms of pain.

Key takeaway

The decision serves as a reminder to all manufacturers and retailers that product claims must be considered very carefully before they are made. This is particularly pertinent for those in the healthcare and pharmaceutical industries, where any representations in relation to medicinal or therapeutic characteristics of products must be accurate and capable of being verified.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.