The Federal Court of Australia has ordered consumer goods giant Reckitt Benckiser to remove its popular Nurofen brand from Australian shelves, after finding the British-based multinational engaged in misleading conduct in contravention of the Australian Consumer Law.
The Federal Court of Australia found that Reckitt Benckiser had made misleading claims on packaging and its website that its Nurofen Back Pain, Nurofen Migraine Pain and Nurofen Tension Headache products were formulated to treat a specific kind of pain, but were found to be identical.
Each ‘specific pain’ product line was found to contain the same active ingredient, 342mg of ibuprofen lysine, despite the different packages each claiming to target a specific type of pain.
The Federal Court of Australia ordered that Reckitt Benckiser remove the Nurofen Specific Pain products from retail shelves within three months, and that the British-based company publish corrective notices on websites and newspapers, implement a consumer protection compliance program, and pay the Australian Competition and Consumer Commission’s (ACCC) costs.
Proceedings into Reckitt Benckiser’s misleading conduct was initiated by the ACCC, which launched legal action against the company earlier this year.
ACCC Chairman Rod Sims said that the national regulator launched the proceedings because of false representations made by Reckitt Benckiser on its products.
“The ACCC took these proceedings because it was concerned that consumers may have purchased these products in the belief that they specifically treated a certain type of pain, based on the representations on the packaging, when this was not the case,” he said.
“Truth in advertising and consumer issues in the health and medical sectors are priority areas for the ACCC, to ensure that consumers are given accurate information when making their purchasing decisions.
“Any representations which are difficult for a consumer to test will face greater scrutiny from the ACCC.”
Misleading and expensive
Mr Sims said the Nurofen Specific Pain products were being sold at almost double the price of those of the brand’s standard ibuprofen products, which were identical to the specific pain line.
“The retail price of the Nurofen Specific Pain Products was significantly higher than that of other comparable analgesic products which also act as general pain relievers,” he said,
“Price sampling conducted by the ACCC before the proceedings were commenced indicated that the Nurofen Specific Pain products were being sold at retail prices almost double that of Nurofen’s standard ibuprofen products and the general pain relief products of its competitors.”
The ACCC has agreed to an interim packaging arrangement with Reckitt Benckiser following the removal of the products from shelves, in which the packaging will clearly disclose to consumers that the specific pain products are equally effective for other forms of pain.
Easier to navigate
Head of regulatory and medical affairs for Reckitt Benckiser in Europe, Aomesh Bhatt, said the company did not set out to mislead consumers with its packaging of the Nurofen Specific Pain brand range, and that the ruling was an “Australia-only issue” with no implications for UK sales.
Speaking on BBC Radio 4’s World at One, Mr Bhatt explained why Reckitt Benckiser chose to market different kinds of specific pain relief when they contained the same core ingredient.
“Consumers want the navigation in a grocery environment, where there’s no healthcare professional to assist in the decision-making,” he said.
“We know that 90% of consumers look for a specific type of product for their individual pain.”
The Federal Court of Australia ruling will not be applicable in other countries such as the UK, where Reckitt Benckiser sells Nurofen Migraine Pain and Nurofen Tension Headache in caplets, as well as Nurofen Express Period pain in soft capsules.
A spokeswoman from the UK’s Medicines and Healthcare Products Regulatory Agency said that specific/informative names were allowed on products to help consumers, but not if they made misleading medical claims.
“For over-the-counter medicines informative names are permitted to help patients select an appropriate product without input from a healthcare professional,” she said.
“Informative names are allowed as an aid for patients to select the appropriate product without input from a doctor or pharmacist but they can’t make misleading medical claims.”
A future court hearing will decide on a possible fine for Reckitt Benckiser.
