Nurofen slapped with $1.7m fine

NUROFEN has been slapped with a $1.7 million penalty for duping consumers into believing painkillers could target specific areas.

The pain continues for Nurofen.

RECKITT Benckiser has been ordered to pay $1.7 million in fines for duping consumers with claims Nurofen could target different kinds of pain.

The penalty is well below the $6 million the Australian Competition and Consumer Commission was seeking.

The penalty decision was handed down by Justice Edelman in the Federal Court on Friday after the drugmaker was found guilty of breaching consumer law in December.

The court found Reckitt Benckiser had made false and misleading claims in marketing its Nurofen Specific Pain range on the packaging and on its website.

It found Nurofen’s Back Pain, Period Pain, Migraine Pain and Tension Headache products were marketed as treating specific kinds of pain, when in fact the products are identical.

The Specific Pain products, which all have the same active ingredient ibuprofen lysine 342mg, were sold at nearly double the price of Nurofen’s standard ibuprofen products.

“The ACCC had submitted that a penalty of at least $6 million was appropriate in order to send a strong deterrence message and due to the longstanding and widespread nature of the conduct and the substantial sales and profit that was made by selling the product,” ACCC Chairman Rod Sims said. “We will carefully consider the judgment.”

In determining the $1.7 million penalty, Justice Edelman found that while consumers potentially suffered a financial loss, the products were still effective at treating the pain they represented.

He also found that while Reckitt Benckiser’s conduct was designed for profit, the profit made was “unquantifiable” and the products did not cause physical harm to consumers.

Mr Sims said the ACCC would be advocating for an increase in the maximum penalty for breaches. “The current maximum penalty of $1.1 million per contravention is arguably inadequate for very large companies,” he said.

Consumer group Choice has also described the penalty as “not painful enough”.

“A $1.7 million fine is nothing compared to the profit Reckitt Benckiser would have made from tricking customers into paying a premium for products that weren’t any more effective than cheaper generic pain relief pills,” Choice spokesman Tom Godfrey said.

“Even the highest available fine under the law would have only been $6 million, which is pocket change for these giant companies.”

In a statement, a Nurofen spokeswoman said the Specific Pain range was intended to “provide easy navigation of pain relief options, particularly within the grocery environment where pharmacy support is not available”.

ACCC chairman Rod Sims.

“In 2015, Nurofen accepted that the representations made on the Nurofen Specific Pain Range web page and packaging may have misled consumers, and at that time Nurofen consented to the Court orders,” she said.

“Nurofen did not intend to mislead consumers, however we recognise that we could have done more to assist our consumers in navigating the Nurofen Specific Pain Range. That is, to show that each of the products in the range is equally effective for the other pains indicated on the Nurofen Specific Pain Range packaging.”

In a penalty hearing earlier this month, lawyers for the drug maker told the court that “rational” consumers would not think a pain-specific product was any more effective than a regular one.

Earlier, the court ordered the products be removed from retail shelves with interim packaging to “clearly disclose to consumers that the products are equally effective for other forms of pain”.

Reckitt Benckiser was also ordered to publish website and newspaper corrective notices, implement a consumer protection compliance program, and pay legal costs for the ACCC.

Last year, Mr Sims told news.com.au the watchdog was seeking the maximum possible penalties of $1.1 million per offence to serve as a deterrent to other large companies like Coles and Woolworths.

“This whole truth in advertising drive requires a few big penalties, to be blunt, so that company directors sit up and take notice — so they focus on what their marketing people are doing,” he said.

“Marketing people have a lot of temptations to cross the line, and they need to understand it’s not good for business or their balance sheet.”

Reckitt Benckiser is also facing a separate class action launched by customers who are seeking millions of dollars in refunds.

One plaintiff in the case, Peter ‘Bastion’ Moore, 51, has been living with HIV for more than two decades and takes more than 30 medications a day and spent up to $600 on Nurofen Specific Pain products over the past few years.

He told news.com.au earlier this month he felt cheated out of his money. “It’s lying. You don’t put a product out there with false advertising,” he said.

“It’s not about the money to me, it’s about the principle. There are too many people that lie in this world to make big bucks and their products do basically nothing.”

Choice’s Tom Godfrey said Nurofen “spent millions formulating this rip-off and should be made to pay”. “Choice first blew the whistle on this con back on 2010,” he said.

“It’s deeply concerning that consumers were duped into purchasing Nurofen’s pain relief products in mistaken belief that they targeted a specific type of pain.

“The fact is whether you purchased the painkillers for back pain, period pain, migraine pain, tension headache, the products contained same amount of active ingredients.

“Instead of relieving specific body pains, Nurofen gave consumers a pain in the hip pocket and potentially put their health at risk.

“If a consumer had multiple pains they could well have been led to believe they needed to take more than one type of targeted pain product at the same time.”

The class action continues on June 7.

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