Plenty of Pain For Nurofen Over Misleading Claims
Tuesday 15 December 2015 @ 10.30 a.m. | Legal Research | Trade & Commerce
As reported in a recent ACCC Media Release, the Australian Competition and Consumer Commission (the ACCC) finalised proceedings against Reckitt Benckiser (Australia) Pty Ltd (Reckitt Benckiser), and the Federal Court has found that Reckitt Beckiser engaged in misleading conduct in contravention of the Australian Consumer Law (the ACL) [the ACL is contained in Sch 2 to the Competition and Consumer Act 2010 (Cth)] by representing that its Nurofen Specific Pain products were each formulated to treat a specific type of pain, when the products are identical.
The Court Findings
The Nurofen Specific Pain product range consists of:
- Nurofen Back Pain;
- Nurofen Period Pain;
- Nurofen Migraine Pain; and
- Nurofen Tension Headache.
The court found that Reckitt Benckiser made misleading representations on the packaging of each Nurofen Specific Pain product, and on its website www.nurofen.com.au, that each product:
- was formulated to treat a particular type of pain; and
- solely or specifically treated a particular type of pain.
In fact, each product contains the same active ingredient, ibuprofen lysine 342mg, and is no more effective at treating the type of pain described on its packaging than any of the other Nurofen Specific Pain products.
Reckitt Benckiser admitted that it had engaged in the contravening conduct and consented to the orders made by the Court.
Reaction from the ACCC
The ACCC Chairman Rod Sims said:
“The ACCC took these proceedings because it was concerned that consumers may have purchased these products in the belief that they specifically treated a certain type of pain, based on the representations on the packaging, when this was not the case. 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. Any representations which are difficult for a consumer to test will face greater scrutiny from the ACCC. The retail price of the Nurofen Specific Pain Products was significantly higher than that of other comparable analgesic products which also act as general pain relievers. Price sampling conducted by the ACCC before the proceedings were commenced 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.”
The company faces a fine of up to $1.1 million a breach and Mr Sims said the ACCC was examining the judgment to determine how many breaches took place and what penalty it would argue for.
Response from Nurofen
A spokeswoman for Nurofen said the company had not set out to mislead consumers:
"The Nurofen specific-pain range was launched with an intention to help consumers navigate their pain relief options, particularly within the grocery environment where there is no healthcare professional to assist decision making. Nurofen has co-operated with the ACCC in relation to these proceedings and will fully comply with the court order made today."
The Court Orders
The Court ordered that Reckitt Benckiser remove the Nurofen Specific Pain products from retail shelves within 3 months.
The court has also ordered that Reckitt Benckiser publish website and newspaper corrective notices, implement a consumer protection compliance program, and pay the ACCC’s costs.
The ACCC has agreed an interim packaging arrangement with Reckitt Benckiser for use following the removal of these products. This will clearly disclose to consumers that the products are equally effective for other forms of pain.
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Sources:
Court finds Nurofen made misleading Specific Pain claims – ACCC Release MR 253/15
Nurofen facing fines over misleading claims – smh.com.au
