Legal Update: Federal Court finds that Nurofen’s marketing of its “Specific Pain Relief” range constitutes misleading and deceptive conduct

Nurofen Specific Pain products_0

Background

Reckitt Benckiser markets and sells Nurofen products, including the “Specific Pain Range”. The Specific Pain Range, comprised of four colour-coded products named Nurofen Back Pain, Nurofen Period Pain, Nurofen Migraine Pain, and Nurofen Tension Headache.

Advertising for each product refers to a different pain condition, is coloured differently, and bears the statement that the product “…is fast and effective in the temporary relief of pain associated with…” the relevant pain condition.

From around December 2012 until May 2014, the product packaging was colour coded so that each pack referred to a different pain condition and the Nurofen website contained a product comparison page. This webpage consisted of a table comparing each pain relief product, with ticks indicating that a particular product targeted its corresponding pain. For example, Nurofen caplets were represented as being suitable for all types of pain, whereas ‘Nurofen Period Pain Caplets’ were represented as being specifically formulated to treat period pain and not other types of pain.

Proceedings

In May 2015, the Australian Competition and Consumer Commission “ACCC” instituted proceedings in the Federal Court of Australia against Reckitt Benckiser (Australia) Pty Ltd (“Reckitt Benckiser”), alleging that Reckitt Benckiser made false or misleading claims that its Nurofen Specific Pain Products were each formulated to treat a specific kind of pain, when in fact the products are identical.

The ACCC provided evidence that each product contained:

  • the same amount of active ingredient, being Ibuprofen Iysine 342mg;
  • the same formulation, equally effective in treating all types of pain described in the Specific Pain Range;
  • has the same approval indication from the Australian Register of Therapeutic Goods (“ARTG”);

The ACCC also argued that consumers paid a premium for the Specific Pain Range, where price sampling conducted by the ACCC revealed that these products were being sold at a retail price around double that of Nurofen’s standard ibuprofen products and standard products of its competitors.

Following an adjournment at the commencement of the trial, Reckitt Benckiser admitted to contravening sections 18 and 33 of the Australian Consumer Law (the “ACL”) – engaging in misleading or deceptive conduct and engaging in conduct that is liable to mislead the public as to the nature, characteristics or suitability of the Nurofen Specific Pain Range products for their purpose.

Justice Edelman held that the packing and website representations of the Specific Pain Range infringed sections 18 and 33 of the ACL because:

  • each product contained the same active ingredient;
  • the ARTG approved indications for each product is the same;
  • each product is of the same formulation; and
  • no product is any more or less effective than the others in treating any of the symptoms shown on the packaging.

Court Orders

The Court ordered that Reckitt Benckiser:

  • be fined up to $1.1 million per breach;
  • packets and products may only be used for a further twelve months with a disclosure. After this period, the products and packets may no longer be used;
  • publish corrections on its website and in a widespread national newspaper;
  • pay the ACCC’s court costs;
  • implement a consumer protection compliance program to reduce the prospect of future breaches – including appointing a compliance officer, issuing a compliance policy, and developing a complaints handling system.

Key Takeaway Points

  • Exercise care when marketing your products or services, particularly when making unproven claims that are likely to mislead or deceive consumers. It is important to look at how the behaviour of, and representations made or implied by your business affect the audience’s impression of your good or service.
  • You may need to disclose additional information to your customers if you think that you may be at risk of creating misleading impression, or where it is reasonable to expect that this information will be disclosed.
  • The ACCC has identified “truth in advertising” as a new priority area and has signalled its intention to seek maximum penalties.

If you have any questions or concerns about how you, or someone else, is advertising or marketing certain goods or services which you think may be at risk of misleading or deceiving consumers, please contact the team at Frankel Lawyers.

See: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 4) [2015] FCA 1408 (11 December 2015).

By Linda-Jane Vanhear

Solicitor, Frankel Lawyers