Misleading and deceptive conduct in marketing and packaging: a real pain in the neck for Nurofen

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.[1] 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[2]:

• Each product was coloured differently;
• Each product refers to a different type of pain;
• Displayed a statement saying “Fast targeted relief from pain”;
• Displayed a statement saying “Is fast and effective in the temporary relief of pain associated with…” following the type of targeted pain such as Tension Headache /                           Migraine Pain / Period Pain;
• Instructions of usage for type of pain; and
• Displayed the active ingredient as ibuprofen lysine 342 mg.

 

[1] Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (no 4)[2015] FCA (11 December 2015) 1.

[1] Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (no 4)[2015] 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:

1. Section 18 – which requires anyone in trade or commerce not to engage in conduct that is, or is likely to, mislead and deceive; and

2. Section 33 – requiring persons not to engage in conduct that is liable to mislead the public as to the nature, manufacturing process, the characteristics and the suitability of the purpose of the goods.

 

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:

1. Put yourself in the customer’s position- objectively assess if your customer(s) could fall into error because of your business’s representations and that the correct information is conveyed.
2. Any statements made about your products and services should be substantiated, this means claims of superiority to other products and services should be able to be backed up with evidence.
3. Exaggerated statements such as “the best smoothies in the world” can be viewed as ‘puffery’ because a reasonable person wouldn’t fall into error believing this statement as a fact. However, be cautious with the types of statements made in your industry for consumers who may not be able to differentiate exaggeration from such statements.
4. Do not omit from putting certain information on your advertisements and packaging that may lead consumers to make incorrect conclusions. For example, only displaying hourly rates of weekday services on your website when weekends are charged at a higher rate.
5. Always check your products and services contain up to date and relevant information. For example, when discounts that are no longer available insert an expiry date so consumers understand its for a limited time.