The Federal Court of Australia has caused a major headache for Reckitt Benckiser (Australia) Pty Ltd, finding that it engaged in misleading and deceptive conduct in the packaging and online information about a range of Nurofen products.

The conduct

Since 2006, Reckitt Benckiser has manufactured the following Nurofen products:

  • Nurofen Migraine Pain;
  • Nurofen Tension Headache;
  • Nurofen Period Pain; and
  • Nurofen Back Pain.

The packaging of each product is coloured differently, refers to a different pain condition, bears the statement ‘fast and targeted relief from pain’ and states that the product ‘…is fast and effective in the temporary relief of pain associated with [a particular condition]’. In the case of Nurofen Migraine Pain and Nurofen Tension Headache, the packaging contains an instruction in relation to the usage of the product that is specifically referrable to the symptoms of the relevant pain condition.

The Court found, following last-minute admissions made by Reckitt Benckiser after the commencement of the trial, that the packaging of those products conveyed representations that they were specifically formulated to treat a particular type of pain, and solely or specifically treated that particular type of pain.

By making those representations, Reckitt Benckiser breached both s 18 (misleading or deceptive conduct) and s 33 (conduct liable to mislead the public as to the nature, purpose or suitability of goods) of the Australian Consumer Law (ACL), because each product contained the same active ingredient in the same formulation, had the same ‘approved indications’ on the Australian Register of Therapeutic Goods (ARTG), and because no product is any more or less effective than the others in treating a particular type of pain.

Reckitt Benckiser was also found to have breached s 18 and s 33 of the ACL through the following information on its website:

  • a page with the heading ‘relieve pain with the right types of pain medication’; and
  • a page with the heading ‘specific pain relief.’

Orders

By consent, the Court ordered that Reckitt Benckiser:

  • be restrained for 3 years from selling, marketing or promoting any of the relevant products;
  • take steps to stop any further shipment, distribution or sale of the products within four weeks;
  • take steps to remove all the products from retail outlets within 3 months;
  • publish a corrective notice on its website within 14 days and in The Australian within 21 days;
  • ensure that its consumer protection law compliance program meet specified standards, and maintain the program for 3 years.

Pecuniary penalties are to be decided by the court at a later date. It remains to be seen whether Reckitt Benckiser will try to seek some pain relief by conferring with the ACCC and agreeing to penalties to jointly submit to the court. The longstanding ability for regulators and parties to submit agreed penalties to the Court was unanimously reinstated by the High Court earlier this month. For more information, read our blog post here.

Implications

It is interesting to note that, while Reckitt Benckiser eventually admitted the representations found by the Court, it appears that this was not always the case. Reckitt Benckiser was quoted in the media as recently as March stating that the four products were marketed differently to allow for ‘easier navigation of pain-relief options’. Moreover, it appears that it was only after an adjournment at the beginning of the trial that Reckitt Benckiser admitted the ACCC’s allegation that the packaging represented that the products solely or specifically treated the particular type of pain stated.

The ACCCs prosecution follows on from Nurofen being awarded a CHOICE Shonky award in 2010, a determination by the Therapeutic Goods Association in 2012 that the use in a TV commercial of the statement that Nurofen “goes straight to the source of the pain” was misleading, and a story undertaken by The Checkout team in 2013.

While it may be strictly true that the products are suitable for the type of relief specified on the product’s packaging (as per the ARTG indications) that does not mean that all representations conveyed by the packaging are necessarily true. Businesses should carefully consider all representations potentially conveyed by their product packaging and advertising and, if they are in doubt, seek appropriate legal advice.

We will keep you updated on the penalty imposed once it is imposed by the Court.