ACCC seeing red: Reckitt Benckiser taken to court over multicoloured Nurofen packs

YOU know how drug companies promise pain relief that can target your neck/back/migraine/period pain? The ACCC has had enough.

“This whole truth in advertising drive requires a few big penalties.”

JUST a reminder: no, the pink packet doesn’t actually target period pain.

Drug maker Reckitt Benckiser could be facing millions of dollars in fines for allegedly misleading consumers with its multicoloured Nurofen packs.

RB is being sued by the Australian Competition and Consumer Commission over claims that its four Nurofen Specific Pain products — Nurofen Back Pain, Nurofen Period Pain, Nurofen Migraine Pain, and Nurofen Tension Headache — are each formulated to treat that specific kind of pain, when in fact the products are identical.

In documents filed with the Federal Court this morning, the ACCC alleges the conduct is misleading and deceptive, as the caplets in all four products contain the same active ingredient, ibuprofen lysine 342mg.

The Specific Pain range is sold for retail prices of around double that of Nurofen’s standard ibuprofen products and the standard products of its competitors. Chemist Warehouse, for example, sells a 24-pack of Nurofen Back Pain for $10.99, while a 24-pack of Nurofen 200mg sells for $4.69.

The ACCC alleges that RB made representations on the Nurofen packaging and on its website that each product: was designed and formulated to treat a particular type of pain; had specific efficacy in treating a particular type of pain; and solely treated a particular type of pain.

In fact, each of the four products is registered with the Australian Register of Therapeutic Goods with the same approved indication, covering a wide variety of pain types.

ACCC Chairman Rod Sims said the watchdog takes false or misleading claims about the efficacy of health and medical products very seriously, with truth in advertising and consumer issues in the sector flagged as key priorities for 2015.

“This whole truth in advertising drive requires a few big penalties.”

“Every consumer is a bit vulnerable when it comes to medical issues. We think it’s quite a serious matter, saying there’s a tablet specifically formulated to target a specific pain when that’s not true,” ACCC Chairman Rod Sims told news.com.au.

“It has an effect not just on how much consumers pay — they could be buying more tablets than they need — but also it could be detrimental to their health, if they have a variety of issues and feel they need to take a different tablet for each one.”

Should the allegations be proven, Reckitt Benckiser could be facing fines of up to $1.1 million per offence. “It could amount to quite a severe penalty,” Mr Sims said.

In the Coles fresh bread case, the ACCC also indicated it would be seeking the maximum possible penalty. Asked whether this would be a theme for 2015, Mr Sims said “in a sense, yes”.

“Where we have large companies like Coles, Woolworths and Reckitt Benckiser, we judge that these penalties need to be sizeable and need to be seen to be sizeable so you have the deterrence effect,” he said.

“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. 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.”

In 2013, Reckitt Benckiser was ordered by the Therapeutic Goods Administration to amend two online ads to remove claims that Nurofen goes “straight” to the source of the pain.

In a statement, a Reckitt Benckiser spokesperson said: “Nurofen is aware of the ACCC’s concerns in relation to the Nurofen pain-specific packaging.

“Nurofen disputes any allegation of contravention of consumer law in relation to its pain-specific packaging. All Nurofen packs are approved by the Therapeutic Goods Administration (TGA) and comply with TGA’s regulatory guidelines. Nurofen pain-specific products provide easier navigation of pain-relief options in the grocery environment for consumers who are experiencing a particular type of pain.

“Nurofen is committed to the quality use of medicines and promoting and protecting the health of Australians. As part of this commitment and responsibility, Nurofen works closely with all regulatory bodies to ensure high standards compliance to guidelines. Nurofen will continue to work with regulators to ensure its packaging continues to be fully aligned with all guidelines and requirements and still offer consumers with clear pain relief options for their pain type.

“Nurofen products remain available for sale at all leading retailers.”

The ACCC is seeking declarations, injunctions, an order for the publication of corrective notices, penalties and costs. The matter is listed for a case management conference on 31 March 2015 in the Federal Court of Australia in Sydney.

[e-mail]