ACCC Launches Legal Action Over Nurofen Claims

Friday 6 March 2015 @ 9.28 a.m. | Legal Research | Trade & Commerce

The Australian Competition and Consumer Commission (the ACCC) has launched legal action against pharmaceutical company Reckitt Benckiser Australia over its Nurofen Specific Pain Products, alleging the packaging of its four “identical” pain products is misleading.

Background

The ACCC alleges claims made on the packaging of Nurofen products that each product targets a specific type of pain are misleading (contravening Sch 2, s 29 of the Competition and Consumer Act 2010 (Cth)), because each pain reliever actually contains the same active ingredient, ibuprofen lysine 342mg.

The ACCC alleges Nurofen Specific Pain Product packaging appears to claim each product:

  • is designed and formulated to treat a particular type of pain;
  • has specific efficacy in treating a particular type of pain; and
  • solely treats a particular type of pain.

The four products in question – Nurofen Back Pain, Nurofen Period Pain, Nurofen Migraine Pain and Nurofen Tension Headache – have all been approved by the Australian Register of Therapeutic Goods as being suitable for treating a wide variety of pain types.

The retail price of the Nurofen Specific Pain Products is significantly more than comparable pain relieving products, including Nurofen’s standard pain relievers, according to the ACCC.

Comments from the ACCC

ACCC chairman Rod Sims said in a statement:

“Recent price sampling conducted by the ACCC revealed that these products are being sold at retail prices around double that of Nurofen’s standard ibuprofen products and standard products of its competitors.”

The ACCC is seeking declarations, injunctions, an order for the publication of corrective notices, penalties and costs from Reckitt Benckiser. The international conglomerate, based in the UK, also owns brands including Durex condoms, Dettol and Strepsils.

Rohan Harris, principal at Russell Kennedy Lawyers said any company that makes a claim on its packaging needs to be able to substantiate it, even if it is comparing the products against other products in its own portfolio:

“Generally speaking, if you are going to make claim that your product is more superior and specialised, you have to be able to substantiate it … If you make a health or scientific claim about a product, you need some sort of medical or scientific evidence.”

Harris says the ACCC has new powers to issue substantiation notices to compel a business to provide evidence for any claims they make about their products:

“If you make a claim, you have to be prepared to produce evidence and be ready to back up that claim.”

Statement from Nurofen

Nurofen released a statement disputing any allegation of a contravention of the Australian Consumer Law:

"All Nurofen packs are approved by the Therapeutic Goods Administration (TGA) and comply with TGA’s regulatory guidelines. Nurofen pain-specific products provide easier navigation of pain-relief options in the grocery environment for consumers who are experiencing a particular type of pain.

As part of this commitment and responsibility, Nurofen works closely with all regulatory bodies to ensure high standards compliance to guidelines. Nurofen will continue to work with regulators to ensure its packaging continues to be fully aligned with all guidelines and requirements and still offer consumers with clear pain relief options for their pain type.”

The company also confirmed that all products were still for sale. Nurofen said it was committed to the quality use of medicines and promoting and protecting the health of Australians.

This matter is listed for a case management conference on 31 March 2015 in the Federal Court of Australia in Sydney.

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