Earlier this week, the Federal Court of Australia found the promotion by Reckitt Benckiser of its popular Nurofen branded products as treatments for specific ailments, such as migraines, tension headaches, period and back pain was misleading and deceptive. While the matter was ultimately decided by way of consent, the case does shed some light on issues that courts will consider when assessing misleading product claims.
The Court found Reckitt Benckiser’s conduct in creating ranges for each ailment with specific packaging and publishing a website with a table analysing each product and their suitability to treat the different ailments, falsely represented that each product:
- was specifically formulated to treat the particular type of pain specified on the packaging relevant to that product
- solely or specifically treated the particular type of pain specified on the packaging relevant to that product.
SPECIFIC AILMENT PACKAGING
Most consumers would be familiar with the Nurofen branded products aimed at specific ailments, which have been available since January 2011. The packaging was quite distinctive and had some common characteristics – each product was:
- coloured differently (ie violet for migraines and burgundy for tension headaches etc)
- labelled to identify a different specific ailment
- bore the statement “FAST TARGETED RELIEF FROM PAIN”
- bore a statement that the product “…IS FAST AND EFFECTIVE IN THE TEMPORARY RELIEF OF PAIN ASSOCIATED WITH…” the relevant ailment
- stated, expressly on the front of the pack, that the active ingredient is “ibuprofen lysine 342 mg (equiv ibuprofen 200mg)”.
As the decision was by consent and the representations were admitted, we don’t have any specific guidance from the Court as the basis for these findings. However, in our view, there are some matters that may have been in the minds of the parties and the Court when reaching these findings:
- A reasonable proportion of consumers with the different ailments could reasonably be expected to be in pain when buying the medication (or perhaps be a family member buying for a relative in pain) and would therefore be rushed at the time of purchase. Importantly, this may be in a supermarket where the consumer cannot access professional medical advice. The overall impression created by the packaging would therefore be quite powerful and would likely overcome any fine print qualifications, such as the ingredients list.
- Likewise a reasonable proportion of consumers would not know that the active ingredient that provided the relief sought was “ibuprofen lysine 342 mg (equiv ibuprofen 200mg)”. As such, an ingredient list that named this product would not provide the consumer with any clarity that the four Nurofen products were the same.
- Time and effort had been devoted to distinguishing between the different ailments. They would quite likely be displayed grouped together on a supermarket shelf. The colours and labelling would distinguish one product clearly from the other, thereby inviting the consumer to conclude that there was some difference between them.
- The name of the ailment targeted by each product was stated on the front and at least two of the sides of each packet in large prominent font. The ailment was the next largest phrase after the Nurofen logo. The placement of the words and logo would create a strong connection between that product and the specific ailment in the minds of most consumers.
- The next most prominent phrase used on the packing, was the claim that the product offered “Fast targeted relief from pain”. This phrase was positioned immediately below the targeted ailment in a location that most consumers would read after the name of the ailment. This placement of words would also likely create a strong connection between the product claim and the of treatment that ailment.
- On the back panel of each product, the first and (one of) the largest phrases was “…is fast and effective in the temporary relief of pain associated with…” the relevant ailment, which once again would likely create a strong connection between the product and the treatment of the ailment.
- While not mentioned in the Judgment, in its original media release the ACCC noted that:
“The retail price of the Nurofen Specific Pain Products is significantly above that of other comparable analgesic products that also act as general pain relievers. 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.”
It is likely that the differential pricing of the products, particularly, when combined with the design of the packaging for the product (and the other factors identified above) would contribute to the misleading nature of the conduct as a whole.