In March 2015 Reckitt Benckiser (Australia) Pty Ltd (RB), the producer of health, hygiene and home products in Australia came under fire by the Australian Competition and Consumer Commission (ACCC) over their range of range of ‘pain specific’ Nurofen products.
The ACCC commenced legal proceedings against RB following concerns that the Nurofen Pain Specific Range of products were not correctly advertised and had potential to mislead consumers. This kind of medication alluded to the idea that it was different to other pain relievers because of its ‘specific’ pain relief capabilities, although the chemical recipe didn’t change.
The products of concern were Nurofen Migraine Pain, Nurofen Tension Headache, Nurofen Period Pain and Nurofen Back Pain.
ACCC took issue with RB marketing these products to consumers because it suggested that each Nurofen product was specifically formulated to treat a specific type of pain when in fact the products carried the same active ingredient (ibuprofen lysine 342 mg) and was of the same formulation to the more ‘ordinary’ Nurofen products. Further to this deception, between 2012 to 2014 Nurofen displayed on their website a pain indicator table stating “Relieve pain with the right types of pain medication” suggesting the suitability of each product for your needs.
This meant that although the Nurofen products may generally work for pain relief, the products are misleading to consumers who may be led to purchase the Nurofen Specific Pain Range believing a more targeted treatment for their pain would result. The Nurofen Specific Pain Range products were also priced considerably higher than the other pain relievers at the time, which would have added to potential confusion over product quality and pricing.
The Nurofen Pain Specific Range packaging included representations such as:
 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (no 4) FCA (11 December 2015) 1.
 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (no 4) FCA (11 December 2015) 8.
These products were assessed in line with the standards of Australian Consumer Laws (ACL) detailed in Schedule 2 of the Competition and Consumer Act 2010 (Cth). By December 2015 the Federal Court then concluded on the evidence produced by the ACCC that RB was in contravention of:
RB admitted to the contraventions and has since sought to cooperate with the ACCC by ceasing further distribution of the Pain Specific Range and removing these products from Australian shelves. Alongside this RB will need to publish notices, implement consumer protection programs, cover the legal costs of ACCC and pay any pending penalties incurred which are to be decided by the Federal Court at a later date.
This case demonstrates the need for retailers and manufacturers to tread with caution in their related industries and constantly review the way their products are presented to the public. As you can see from above, the price that can be paid is significant even if there was no intention to mislead and no harm eventuated.
Below are 5 Top Tips to ensure that your business’s advertising and product packaging aren’t in breach of the ACL’s prohibition on “misleading and deceptive” conduct:
If you would like to minimise your risk and seek legal advice with regard to your products or services contact our Advisory Team:
Mark North – Director & Practice Leader – Advisory: Corporate and Commercial
P: 6215 9100