Addressing the National Consumer Congress earlier ths year, Chairman of the ACCC, Rod Sims made a strong commitment to championing “truth in advertising,” announcing to the forum, that:
“…Truth in advertising is fundamental to the proper functioning of a market economy. Our action in this area serves a dual purpose. When advertising is untruthful consumers are misled, and honest traders are put at a competitive disadvantage. There can then be a downward spiral.”
The Commission is making good on its 2015 Enforcement Priorities in addressing not only “truth in advertising” but also consumer protection in the health and medical sector and has instituted proceedings against Reckitt Benckiser Australia Pty Ltd (“Reckitt Benckiser”), filing a Fast Track application in the Federal Court of New South Wales. The proceedings have garnered a great deal of media attention with support from consumer groups such as CHOICE.
Reckitt Benckiser supplies and markets a range of consumer over the counter treatments, including the well-known “Nurofen” pain relief medication. The Nurofen collection includes a suite of products which are marketed by the company as the “Nurofen Specific Pain Range,” and comprises:
- Nurofen Migraine Pain;
- Nurofen Tension Headache;
- Nurofen Period Pain; and
- Nurofen Back Pain.
The ACCC alleges that the company:
- engaged in misleading and deceptive conduct in marketing and supplying the Nurofen Specific Pain Range (section 18 of the ACL);
- made false and misleading representations with respect to the performance, characteristics, uses and/or benefits of each of the Nurofen Specific Pain Range products (section 29(g) of the ACL); and
- engaged in conduct that is liable to mislead the public as to the nature, the characteristics and/or the suitability for the purpose of the Nurofen Specific Pain Range (section 29(g) of the ACL),
through representations on its website and on packaging, which suggest that each product in the Nurofen Specific Pain Range was specifically formulated for the treatment of a particular type of pain (i.e. back pain, period pain), when in fact, each of the four products in the Nurofen Specific Pain Range, contains the exact same active ingredient in an identical quantity and none of the products in the Nurofen Specific Pain Range is any more or less effective at treating any of the ‘pain types.’
In its application the ACCC, notably refers to the fact that each of the Nurofen Specific Pain Range products is:
- packaged in a different coloured box;
- refers to a different (aforementioned) pain condition; and
- includes a statement that the relevant product “is fast and effective in the temporary relief of pain associated with… [the applicable aforementioned pain condition].”
Comparative Claims
Reckitt Benckiser’s website also previously made comparative claims through the display of a product comparison table of the Specific Pain Range. The company has since amended the page. The table included a list of different symptoms for each condition i.e. Back Pain – “mild to moderate back pain, lower back pain,” or Headaches – “mild to moderate headaches, tension headaches, migraine” and displayed a corresponding product for each type of pain. Picture below (sourced from ACCC website):
The company’s website also included the following statements:
“If you’re looking to relieve pain in different parts of your body, it can be hard knowing what’s right for you…With so many different types of pain medication to choose from, let us provide a guiding hand in deciding what product is right for you, your pain and your body.”
“…Nurofen has developed a range of products to target and relieve pain. If you’re looking for back pain relief or relief from period pain, tension headaches and migraines, you can find the right product for you from the list below…”
In its media release, the ACCC refers to the premium price charged by Reckitt Benckiser in relation to the Nurofen Specific Pain Range, which are sold at approximately double the cost of Nurofen’s standard pain medication and competing products in the market. According to the consumer group CHOICE, Australians spent around $629 million on over-the-counter pain medication in 2013. We know the ACCC will not shy away from seeking larger financial penalties in order to deter companies from activities, which it believes fall foul of the law. In fact, Rod Sims has recently said that “Some companies think they have a lot to gain from breaching our competition and consumer law; they should have much to lose as well.” It is likely that such penalties will be sought in cases such as the one against Reckitt Benckiser.
The ACCC is seeking from the Court declarations an injunction, an order for the publication of corrective notices by Reckitt Benckiser, pecuniary penalties and that the company implement a consumer protection compliance program.
