If we thought that actions against companies claiming ‘targeted pain relief’ would end with the $6 million dollar penalty issued in the 2016 Nurofen litigation, we would have been wrong.
This time, the ACCC has focussed on Novartis, maker of the pain relief gel Voltaren. The ACCC alleges that between 2010 to the present day, Novartis and another company engaged in misleading and deceptive conduct in the marketing of one of their Voltaren products, Osteo Gel.
The ACCC claims that Osteo Gel’s marketing involved false or misleading representations as it represented that it was specifically formulated for treating osteoarthritis conditions in a way that is superior to the relief that the ‘standard’ Emulgel (another Voltaren product) would provide. This is said to occur in circumstances where Osteo Gel is formulated identically to Emulgel but is about 33% more expensive.
GlaxoSmithKline, more commonly known as GSK, acquired Novartis’ portfolio of Voltaren products in 2016 and as such is one of the named defendants. The press reports that in response, GSK’s position is that Osteo Gel had an easy-to-open cap which made it specifically tailored for use by consumers suffering osteoarthritis.
In 2016, Reckitt Benckiser, the company behind Nurofen was issued a $6 million penalty after the ACCC successfully established misleading and deceptive conduct in relation to its Nurofen Specific Pain products, which conveyed representations that they were specifically formulated to treat a particular type of pain, despite containing the same active ingredient. While the original penalty imposed was $1.7 million, this was increased to $6 million after the ACCC successfully appealed the decision, arguing that a penalty of $1.7 million was a “manifestly inadequate” deterrent to others who might otherwise engage in this conduct
Companies need to be aware that the ACCC has said that it “will continue to advcate for higher penalties” for breaches such as these.