The Federal Court found that the manufacturer of Nurofen had breached the Australian Consumer Law in a decision that emphasises the importance of an adequate scientific basis when engaging in comparative advertising of a scientific nature.
GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2)  FCA 1
- On 8 January 2018, the Federal Court found that the manufacturer of Nurofen had breached the Australian Consumer Law (ACL) by making false or misleading representations in an advertising campaign comparing the benefits of Nurofen over Panadol: GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2)  FCA 1.
- The applicants, GlaxoSmithKline Australia Pty Ltd and GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (together, Glaxo) market and sell the pain relief medication Panadol, the active ingredient of which is paracetamol. The respondent, Reckitt Benckiser (Australia) Pty Limited (Reckitt), markets and sells the pain relief medication Nurofen, the active ingredient of which is ibuprofen.
- From August to December 2015, Reckitt commenced a comparative advertising campaign throughout Australia and across different media in which it compared Nurofen and ibuprofen with Panadol and paracetamol. The representations made during this campaign included that:
- Nurofen gives faster pain relief and is more effective than Panadol and paracetamol for common headaches;
- Nurofen is better than Panadol and paracetamol for the treatment of common headaches; and
- Nurofen performs in a superior manner to Panadol and paracetamol in delivering pain relief for common headaches.
- Glaxo alleged that at no time during the campaign was there any current adequate foundation in scientific knowledge for any of Reckitt’s representations. Reckitt’s advertising material relied on a single clinical study which suggested that Nurofen provided faster and more effective pain relief than Panadol for common headaches. However, the results of that clinical study were not replicated in two other studies that existed at the time of Reckitt’s campaign which compared the speed and efficacy of treatment between ibuprofen and paracetamol: , . Subsequent meta-analyses (, ) which also existed at the time of Reckitt’s campaign concluded that there was no basis for supporting the alleged superiority of ibuprofen over paracetamol.
- Justice Foster held that Reckitt had engaged in misleading or deceptive conduct by claiming that Nurofen provides faster and more effective relief from pain caused by common headaches than Panadol when only one clinical study supported such a claim and the balance of scientific knowledge did not support a claim of superiority: , . His Honour allowed the parties time to consider his judgment and draft appropriate orders.
- In making his judgment, his Honour noted the following:
- “[W]here claims are made of a scientific nature, proof that there is no scientific foundation or no adequate scientific foundation for those claims may be sufficient to establish that the claims are misleading”: .
- The relevant target consumers included a broad cross-section of the Australian public, in which there is a strong brand awareness of both Nurofen and Panadol. Consumers included those who purchase such products for themselves, those who purchase such products for others, as well as pharmacists who are in a position to influence customers with respect to purchasing such products for the treatment of headache pain: , , , . “Although the level of engagement in respect of such products will not generally be high, most consumers will not purchase such products on impulse but will devote some thought to the decision which they ultimately make. Consumers are likely to be influenced by advertising of the type undertaken by Reckitt in the present case”: .
- This case highlights the importance of ensuring that there is an adequate scientific basis when engaging in comparative advertising of a scientific nature. It also sends a strong message to pharmaceutical companies that they must comply with the ACL when selling to Australian consumers.