ACL AND THE CASE AGAINST NUROFEN – MISLEADING OR
The Australian Consumer Law ("ACL") protects consumers
from being a victim of misleading or deceptive conduct in trade or
commerce. No company is immune from legal action if they are
suspected of being in breach of the ACL.
ACCC case against Nurofen
The Australian Competition and Consumer Commission
("ACCC") investigates alleged breaches and has the
authority to commence legal proceedings against an offending
company. This was most recently the case in proceedings brought
against Reckitt Benckiser (Australia) Pty Ltd ("RB"), the
company behind Nurofen.
RB had released four Nurofen products, each targeted at
relieving a specific type of pain, ie back pain, migraines, tension
headache and period pain. The pain targeted by each product was
indicated not just on the packaging, but also on its website.
Federal Court Decision
In a Federal Court decision handed down on 11 December 2015, it
was held that RB:
Engaged in conduct that is misleading or deceptive or likely to
mislead or deceive and
Engaged in conduct that is liable to mislead the public about
the nature, characteristics and suitability of its products
by representing that each product was formulated to treat that
type of pain and the product would specifically/ solely treat that
type of pain, even though:
Each of the four products had the same active ingredient and
was of the same formulation;
The indications approved by the Australian Register of
Therapeutic Goods were the same for each product; and
No product was more or less effective than the others in
Orders made against Nurofen
RB was ordered to:
For a period of 3 years, refrain from selling, marketing or
promoting the four products in the current packaging or in
packaging that suggests the products were formulated to treat that
type of pain or specifically/solely treat that type of pain;
Within 4 weeks, stop further shipment and distribution of the
Within 3 months, remove the products from display in retail
Publish a corrective notice on its website and in The
Update and maintain its Consumer Protection Law Compliance
Program for 3 years;
Pay the ACCC costs.
RB is also likely to receive a significant pecuniary penalty,
which is yet to be determined. A penalty of up to $1.1 million is
available to the Court for each offence.
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.
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Businesses should ensure that any promotions do not cross a 'fine line' between acceptable and misleading or deceptive.
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