Longer Lasting Relief Representation
43 iNova advanced the following three contentions in relation to this representation:
(1) The Longer Lasting Relief Representation was made not just in relation to Difflam Sore Throat Lozenges, but in relation to all Difflam products, because the statement imparting the representation, "LONGER LASTING SORE THROAT RELIEF VS. DIFFLAM**", did not identify or limit the Difflam product being compared, and because the fine print was difficult to read, likely to be obscured and likely to be misunderstood if read. Furthermore, Reckitt Benckiser had not identified any reasonable grounds for making the Longer Lasting Relief Representation in relation to all Difflam products, and the representation should thus be taken to be misleading by the operation of s 4(1) of the ACL.
(2) As the 4 Hours' Representation was misleading or deceptive for the reasons separately submitted, and the Longer Lasting Relief Representation relied on the 4 Hours' Representation, the Longer Lasting Relief Representation was also misleading or deceptive. This aspect of iNova's argument did not warrant further consideration by reason of the adverse conclusion reached above about the 4 Hours' Representation.
(3) As to the corresponding Scientific Basis Representation, the expert opinion expressed by Professor Christie for Reckitt Benckiser, which was to the effect that a comparative study was not necessary to substantiate this representation as the efficacy and duration of relief of the Difflam product had not been demonstrated, was not a rational opinion. This was said to be so because Professor Christie irrationally assumed that Difflam products had no efficacy at all, and therefore that Strepfen did not require a comparative clinical study, despite Difflam products having been a category leader of sore throat treatments in pharmacies for multiple decades. It was submitted that Professor Christie's opinion did not have a logical relationship with his specialised knowledge and, in the event that that opinion was admissible, the Court should give it no weight for its irrationality. Rather, the Court should consider that a comparative clinical study would be a scientifically valid and reliable way to substantiate the Longer Lasting Relief claim, and that the corresponding representation could not be validly made simply on the basis of the medicine labelling on the back of the Difflam packaging, or the absence of trial data for the Difflam product, both of which Reckitt Benckiser and its expert relied upon. In the absence of a comparative study, it was submitted that this representation was again misleading or deceptive by reason of being made without reasonable grounds, so as to engage s 4(1) of the ACL.
44 Reckitt Benckiser accepted that the Strepfen Advertising Materials conveyed the representation that Strepfen lozenges provide longer lasting relief than standard Difflam lozenges, but denied that the materials made a representation that Strepfen lozenges provide longer lasting relief than any Difflam product for the treatment of sore throats, including Difflam Plus varieties and Difflam Concentrate varieties. Reckitt Benckiser submitted in support of that proposition that:
(1) It was clear from the Strepfen Advertising Materials that it was only lozenges that were being compared, as evidenced by the "**" disclaimer, the fact that a package of Strepfen lozenges was displayed on the materials, and the lozenge-reminiscent imagery on the advertisement, including circular images surrounding the statement "Up to 4 hours* relief" and the round blue head of the character promoting the goods. Reckitt Benckiser submitted that a consumer would understand that it was Strepfen lozenges and standard Difflam lozenges that were being compared. It was submitted that, as the advertisements were not television advertisements and were not fast-moving goods in supermarkets, but, rather, medicated products sold in pharmacies, consumers would take greater time to understand the message that was being conveyed. (This submission did not seem to acknowledge the relevant similarity between the electronic billboard advertisement and television advertising, with the former being even more evanescent than the latter.)
(2) There was no evidence of any clinical study that supported the efficacy of Difflam lozenges over a placebo, so as to provide a scientific basis for any claim that Difflam lozenges provided relief for any period of time. It was submitted that the lack of evidence served on this point by iNova should compel the Court to infer that no such evidence exists, and that a head-to-head study between Strepfen and Difflam lozenges was not required to make a comparative claim of Strepfen's superior efficacy. Reckitt Benckiser disputed iNova's claim that this view, which was advanced on the basis of Professor Christie's evidence, was irrational and not based on specialised knowledge, and noted that the expert evidence provided by Professor Carroll for iNova did not suggest that Professor Christie's view was irrational, despite not agreeing with his conclusion.
45 Reckitt Benckiser submitted, on the basis of the foregoing, that a valid comparative claim could be made as to the longer lasting efficacy of Strepfen lozenges over standard Difflam lozenges, for which it asserted there is no evidence as to efficacy. Reckitt Benckiser submitted that it was entitled to take the claim on the Difflam packaging, or at least the lack of a claim for efficacy beyond three hours, as a measure with which to then compare the asserted efficacy of Strepfen.
46 The notations were different as between the poster and the electronic billboard advertisement. It was no part of Reckitt Benckiser's case at the time of the interlocutory hearing that the comparative representation was not, taken alone, misleading or deceptive, but, rather, that it should not be taken alone. Reckitt Benckiser submitted that, taken as a whole, a reasonable consumer in the more measured environment of a pharmacy, rather than a supermarket, would read the notations with the comparative representation (including the reference to the Benrimoj study report) and not be left with any misleading impression, or otherwise be liable to be deceived.
47 Reckitt Benckiser submitted that, in the absence of a clinical study in evidence to support the efficacy of Difflam, it was, in effect, free to rely upon the findings in the Benrimoj study report to support its asserted four-hour efficacy of Strepfen and compare that to the instruction on the Difflam Sore Throat Lozenges, which made reference to "works for up to 3 hrs".
48 There were at least three fatal flaws in Reckitt Benckiser's argument. More may become apparent, or those listed below may be allayed, upon further evidence, submissions and consideration at a final hearing. The first fatal flaw was that on the poster, the reference in the second, smaller level of notation to "standard Difflam Sore Throat Lozenge pack" did not make it sufficiently clear what was being referred to, either as to content or as to prominence. It did not sufficiently justify or qualify the main representation as to Difflam lozenges generally. The electronic billboard advertisement was better in form but not in substance, with the first level of notation, although larger, only referring to "Difflam Sore Throat Lozenge[s]", and thus not excluding Difflam Plus lozenge varieties.
49 The second fatal flaw in Reckitt Benckiser's argument was that instructions as to how to use a medicine did not, at least in the circumstances of this case at the interlocutory stage, advance a sufficient basis for the representations made. The overall representation was not merely as to differing claims between competing products, but as to a different objective factual situation. Such a claim needed to be clearly spelt out if it was to be understood not merely as a comparison as to usage claims, but as a comparison of actual efficacy, and for there to be a valid basis for such a claim. However, the only basis for the claim was a comparison between the Stepfen claims, albeit with some scientific support, and the standard Difflam lozenge packet instructions for use. On the evidence and submissions before me, this was an inadequate basis for the claims that were made.
50 The third fatal flaw in Reckitt Benckiser's argument was that the products do not appear to be, in fact, sufficiently similar for it to have made the comparison in question without making more of the relevant differences between the products clear as well. That was especially so when regard was had to the more limited class of Stepfen users. Without further information, this representation was not informing consumer choice, but, rather, distorting it.
51 I also rejected a submission by senior counsel for Reckitt Benckiser that the audience for the representation was confined to Difflam lozenge users who could also safely take Strepfen Intensive lozenges. That qualification was not contained in the representations or notations. It would only become apparent upon reading the additional warnings on the Strepfen Intensive lozenge pack and comparing it with the less extensive warning on the Difflam Sore Throat Lozenge pack and whatever warning was on the other two Difflam lozenge packs. It is highly unlikely that any consumer was going to be comparing the warnings on at least two, and up to four, different lozenge packs before making a purchase decision.
52 The question then arose as to whether the Longer Lasting Relief Representation remained prima facie misleading or deceptive when due regard was given to the two tiers of notations at the bottom of the poster and at the bottom of the electronic billboard advertisement. That is, did they sufficiently modify what was otherwise communicated to consumers so that the effect of any otherwise misleading representation was reversed or erased? In that regard, see Butcher, especially per the majority, Gleeson CJ, Hayne and Heydon JJ, at [39] (read with [51] and [71]-[72]) and per McHugh J in dissent as to the result at [152]. The thrust of the comparative representation, as inadequately and insufficiently corrected by the in-store poster disclaimer and not corrected at all by the electronic billboard advertisement disclaimer, was that Stepfen had longer lasting efficacy than all Difflam lozenges, whilst relying for that assertion only upon claims made in standard Difflam lozenge packet use instructions. I was therefore comfortably satisfied that there insufficient modification of the primary representation I found to be made out.
53 It follows that I was satisfied on the evidence before me that the Longer Lasting Relief Representation had been established to be misleading or deceptive to a sufficiently strong prima facie standard to constitute a sound arguable case pending final determination.