The manufacturer of Nurofen faces millions of dollars in fines, but it will be allowed to sell painkillers marketed as targeting specific types of pain for another 12 months after a court found they were misleading to customers.
The Australian Competition and Consumer Commission took Reckitt Benckiser to the Federal Court in March over products in its Nurofen specific-pain range, which are advertised as being specially formulated to treat either back pain, period pain, migraines or tension headaches
The consumer watchdog argued that in reality, each of the products had exactly the same active ingredient – 342 milligrams of ibuprofen lysine – and that none were any better at treating one type of pain than other products in the range.
Nurofen spokeswoman Montse Pena said the company had not set out to mislead consumers.
“The Nurofen specific-pain range was launched with an intention to help consumers navigate their pain relief options, particularly within the grocery environment where there is no healthcare professional to assist decision making,” she said. “Nurofen has co-operated with the ACCC in relation to these proceedings and will fully comply with the court order made today.”
The interim packaging, which carry the same names and the additional information, is currently before the Therapeutic Goods Administration for approval.
ACCC chairman Rod Sims said the painkillers were being sold at almost double the price of competing products and that the court’s decision was a win for consumers. Sims also said there had even been reports of customers suffering from more than one type of pain buying several products from the range, not realising they were buying an identical product.
“It’s conceivable someone could exceed the daily dose by looking at a packet of Nurofen Back Pain and taking that in accordance with what they should, and doing the same with Nurofen Tension Headache and thereby overdosing,” he said.
The company faces a fine of up to $1.1 million a breach and Sims said the ACCC was examining the judgement to determine how many breaches took place and what penalty it would argue for.
“We think this is a very significant matter and so we’ll be arguing for a penalty that sends an appropriate deterrence message,” he said.
Sticker needed for disclosure
The court found that Reckitt Benckiser had made misleading claims on the products’ packets and on its website and ordered it to remove the products from retail shelves within three months.
The ACCC has agreed to let the company use the same packaging and product names for nine months after that, provided a sticker is attached that discloses that the products are equally effective at treating other types of pain, while it redesigns the products and has them approved by the Therapeutic Goods Administration.
Reckitt Benckiser would not say if it would persevere with the specific pain range after that 12 month period.
Sims said it would be “problematic” if the company did continue selling products marketed as treating a particular type of pain – even with a disclosure – but said it was up to the company to decide what to do next.
The court also ordered the company, which admitted it had engaged in the misleading conduct, to publish corrections on its website and in newspapers, implement a consumer protection compliance program and pay the ACCC’s court costs.