Australian Competition and Consumer Commission v Reckitt Benckiser

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 180 of 2015

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

AND: RECKITT BENCKISER (AUSTRALIA) PTY LTD (ACN 003 274 655)

JUDGE: EDELMAN J DATE: 11 DECEMBER 2015 PLACE: HEARD IN SYDNEY (DELIVERED IN BRISBANE VIA video LINK)

Introduction 1 In this proceeding, the applicant, the ACCC, alleged that the respondent, Reckitt Benckiser, contravened the Australian Consumer Law in (i) the packaging of various Nurofen products in the Nurofen Specific Pain Range, and (ii) the website description of those products. 2 The essence of the case against Reckitt Benckiser concerns the packaging and website descriptions of four Nurofen Specific Pain Relief products, respectively for back pain, period pain, migraine, and tension headache. In broad terms, Reckitt Benckiser represented that each Nurofen product was specifically formulated to treat that particular type of pain. In fact, each product contains the same active ingredient and is of the same formulation. None of the four products is any more or less effective than the others in treating any of the particular symptoms. 3 After an adjournment at the commencement of the trial, Reckitt Benckiser admitted various contraventions of ss 18 and 33 of the Australian Consumer Law. The ACCC did not press others. With further co-operation, the parties agreed to the terms of proposed orders, other than those concerning pecuniary penalties. I foreshadowed yesterday that I would make orders broadly in those terms, with some amendments which I explained during the course of the hearing. These are my reasons for making the orders which are broadly in the terms I had indicated.

The breaches by Reckitt Benckiser of ss 18 and 33 of the Australian Consumer Law 4 Nurofen is an over-the-counter medicine for the temporary relief of pain. Its active ingredient is ibuprofen or chemical equivalents of ibuprofen. It has been sold in Australia in pharmacies since the late 1980s and in grocery stores since the early 2000s. 5 Since 2006, Nurofen has been marketed and sold by Reckitt Benckiser. Four of approximately 50 stock keeping Nurofen units are the following products: (1) Nurofen Migraine Pain ibuprofen lysine 342mg tablet blister pack; (2) Nurofen Tension Headache ibuprofen lysine 342mg tablet blister pack; (3) Nurofen Period Pain ibuprofen lysine 342mg tablet blister pack; and (4) Nurofen Back Pain ibuprofen lysine 342mg tablet blister pack. 6 The Australian Register of Therapeutic Goods (ARTG), which registers all Nurofen products, has an approved indication for the four products above as follows: The temporary relief of pain and/or inflammation associated with headache (including migraine and tension headache), dental pain, period pain, arthritis, aches and pains associated with the common cold or flu, backache, sinus pain, muscular and rheumatic pain. Reduces fever.

The packaging representations 7 The characteristics of the packaging of each of these Nurofen Specific Pain Range products include the following matters. These can be seen in graphic form in annexures A, B, C, and D to these reasons. 8 Each product in the Nurofen Specific Pain Range: (1) is coloured differently; (2) refers to a different pain condition; (3) bears the statement "FAST TARGETED RELIEF FROM PAIN"; (4) bears a statement that the product "…IS FAST AND EFFECTIVE IN THE TEMPORARY RELIEF OF PAIN ASSOCIATED WITH…" the relevant pain condition; (5) in the case of Nurofen Migraine Pain and Nurofen Tension Headache, contains an instruction in relation to the usage of the product that is specifically referrable to the symptoms of the relevant pain condition; and (6) states, expressly on the front of the pack, that the active ingredient is "ibuprofen lysine 342 mg (equiv ibuprofen 200mg)". 9 As to the packaging of Nurofen Migraine Pain (Annexure A to these reasons), it (1) is predominantly violet in colour; (2) bears the words "MIGRAINE PAIN" on the main, side and end panels of the packaging; (3) bears the statement "FAST TARGETED RELIEF FROM PAIN"; (4) bears the statement "NUROFEN MIGRAINE PAIN IS FAST AND EFFECTIVE IN THE TEMPORARY RELIEF OF PAIN ASSOCIATED WITH: MIGRAINE HEADACHE"; and (5) contains the instruction "DOSAGE: Take with water at first onset of migraine". 10 As to the packaging of Nurofen Tension Headache (Annexure B to these reasons), it (1) is predominantly burgundy in colour; (2) bears the words "TENSION HEADACHE" on the main, side and end panels of the packaging; (3) bears the statement "FAST TARGETED RELIEF FROM PAIN"; (4) bears the statement "NUROFEN TENSION HEADACHE IS FAST AND EFFECTIVE IN THE TEMPORARY RELIEF OF PAIN ASSOCIATED WITH: TENSION HEADACHE"; and (5) contains the instruction "DOSAGE: Take with water at first sign of tension headache". 11 As to the packaging of Nurofen Period Pain (Annexure C to these reasons), it (1) is predominantly magenta in colour; (2) bears the words "PERIOD PAIN" on the main, side and end panels of the packaging; (3) bears the statement "FAST TARGETED RELIEF FROM PAIN"; and (4) bears the statement "NUROFEN PERIOD PAIN IS FAST AND EFFECTIVE IN THE TEMPRARY RELIEF OF PAIN ASSOCIATED WITH: PERIOD PAIN". 12 As to the packaging of Nurofen Back Pain (Annexure D to these reasons), it (1) is predominantly green in colour; (2) Bears the words "BACK PAIN" on the main, side and end panels of the packaging; (3) bears the statement "FAST TARGETED RELIEF FROM PAIN"; and (4) bears the statement "NUROFEN BACK PAIN IS FAST AND EFFECTIVE IN THE TEMPORARY RELIEF OF PAIN ASSOCIATED WITH: BACK PAIN". 13 It is now common ground that the statements above involved two Packaging Representations. The common ground accords with the preliminary view I had formed prior to this trial and which I am now satisfied is correct. The common ground is that by making the packaging statements described above, Reckitt Benckiser represented that (1) each product in the Nurofen Specific Pain Range is specifically formulated to treat the particular type of pain specified on the packaging relevant to that product; and (2) the product solely or specifically treats the particular type of pain specified on the packaging relevant to that product and not other types of pain. 14 These two Packaging Representations contravene s 18 of the Australian Consumer Law because they are misleading or deceptive or likely to mislead or deceive. The Packaging Representations also infringe s 33 of the Australian Consumer Law because they are liable to mislead the public as to the nature, the characteristics, or the suitability for purpose of the Nurofen Specific Pain Range products. 15 The reason why Packaging Representations for each product in the Nurofen Specific Pain Range infringe ss 18 and 33 is because: (1) each product contains the same active ingredient; (2) the ARTG approved indications for each product is the same; (3) each product is of the same formulation; and (4) no product is any more or less effective than the others in treating any of the symptoms shown on the packaging.

The Nurofen website 16 Between at least December 2012 and May 2014, the Nurofen Website contained a page with the heading "RELIEVE PAIN WITH THE RIGHT TYPES OF PAIN MEDICATION" (Product Comparator Page). 17 The Product Comparator Page can be seen in Annexure E to these reasons. As Annexure E shows, the Product Comparator Page contained: (1) the statements "If you're looking to relieve pain in different parts of your body, it can be hard knowing what's right for you .... With so many different types of pain medication to choose from, let us provide a guiding hand in deciding what product is right for you, your pain and your body"; and (2) a table which listed different types of pain and compared different Nurofen products, including the products in the Nurofen Specific Pain Range, for each type of pain (Product Comparator Table). 18 The Product Comparator Table contained the following: (1) in the first and second columns under the headings "Type of Pain" and "Suffering" (respectively), a list of different types of pain and their descriptions, including: (a) Headaches - mild to moderate headaches; tension headaches; migraine; (b) Back pain - mild to moderate back pain; lower back pain; and (c) Body pain - period pain; muscular pain; body aches; sprains and sporting injuries; arthritic pain; swelling and inflammation. (2) in the fifth, sixth, seventh and eighth columns, the headings "Nurofen Migraine Caplets", "Nurofen Tension Headache Caplets", "Nurofen Back Pain Caplets", and "Nurofen Period Pain Caplets" (respectively); and (3) "tick" symbols where the following columns intersected with the following rows (respectively): (a) "Nurofen Tension Headache Caplets" with Headaches/tension headaches; (b) "Nurofen Back Pain Caplets" with Back pain/mild to moderate back pain/lower back pain; (c) "Nurofen Period Pain Caplets" with Body pain/period pain; and (d) "Nurofen Migraine Caplets" with Migraine. 19 Between at least December 2012 and May 2014, the Nurofen Website contained or displayed a page with the heading "SPECIFIC PAIN RELIEF" (Specific Pain Relief Page). An image of the Specific Pain Relief Page is annexed to these reasons as Annexure F. 20 It is common ground, again correctly, that the Nurofen website involved the same representations for the Nurofen Specific Pain Relief range as the packaging of the four products in that range (see [13] above). Again, those representations infringe ss 18 and 33 of the Australian Consumer Law for the reasons set out at [15] above.

Conclusion and the appropriate relief 21 The orders proposed by the parties, subject to some amendments made during the hearing, are appropriate. The declaratory relief is very closely tailored to the nature of the breaches. It serves to record the Court's disapproval of the contravening conduct, vindicate the Commission's claim, inform consumers of the contravening conduct and deter other corporations from contravention: see Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2006] FCA 1730; [2007] ATPR 42-140 [6] (Nicholson J). 22 The injunctive relief - to restrain further breaches of this nature - is unambiguous. As senior counsel for Reckitt Benckiser cogently submitted, the injunction is appropriately confined to a period of three years for three reasons in combination: (i) the definite period avoids the potential consequences of contempt applying to Reckitt Benckiser indefinitely; (ii) corporate memory of an injunction and its terms will not be indefinite; and (iii) the nature of the breaches and my conclusions and reasons will be readily available for the foreseeable future. 23 The proposed corrective notice and corrective advertising and its terms are also appropriate. They have a clear nexus with the breaches. The corrective notice and advertising serves a protective purpose and an incidental educative effect: Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 238; (2003) 135 FCR 1, 20-22 [48]-[54] (Stone J). It is sufficient to fulfil the function of the notice and advertising, and consistent with other similar authorities, for (1) the corrective advertising to be published in a single widespread national newspaper (the Australian newspaper) since the contravening conduct in this case is national and the publicity effect would not be vastly different from a considerably greater burden imposed on Reckitt Benckiser of advertising in separate newspapers in each State or Territory; and (2) the format of the advertisement, involving a notice which is a third of a page with a 12 point headline and 11 point text is sufficient to bring the matter to the attention of consumers, particularly in circumstances where the notice is published in the first ten pages of the newspaper: Australian Competition and Consumer Commission v Actrol Parts Pty Limited [2015] FCA 312 [42] (Besanko J). 24 As to the order which amends Reckitt Benckiser's existing compliance programme, this will reduce or remove the prospect of any future breach. It might be arguable, and was initially argued by Reckitt Benckiser, that there is no great utility in a compliance order in circumstances in which Reckitt Benckiser (i) has no history of non-compliance with the Australian Consumer Law, and (ii) has admitted the breaches in this case. However, there are four reasons why the orders are appropriate. First, the breaches in this case are not trivial or inconsequential. Secondly, there is no evidence that compliance orders will impose any substantial burden upon Reckitt Benckiser. Thirdly, Reckitt Benckiser has consented to such orders. Fourthly, the addition to Reckitt Benckiser's existing compliance programme serves a prophylactic purpose which is based upon the circumstances of this case: Australian Competition and Consumer Commission v RL Adams Pty Ltd [2015] FCA 1016 [88]. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.

Associate: Dated: 11 December 2015 ANNEXURE A ANNEXURE B ANNEXURE C ANNEXURE D ANNEXURE E ANNEXURE F