which, in turn, is calculated to strengthen the written words:
"Added Equal Greater"
appearing on the top of each of the advertisements.
The applicant's product, "Panadol", has a long-standing reputation and a very substantial share of the relevant market.
The grounds advanced to support the argument that the advertising is misleading, deceptive or false, can be summarised as follows:
1. In advertisement (1), the vertical package which has the letters "P a n (obscured) o l" visible under the "Nurofen" front panel could be read, on a cursory perusal, as being a reference to "Panadol". This is said to illustrate that the representations are comparative in nature.
2. The use in advertisements (1) and (2) of the words in quotation marks:
".... single doses of non-prescription ibuprofen are well tolerated and demonstrate a side effect profile that is indistinguishable from that of acetaminophen (paracetamol) and placebo."
This is said to be misleading as a result of the words "single doses", which are said to amount to a half-truth when compared to the expert paper from which the words are quoted. The quote is direct and exact in form but it is said not to convey the whole truth which is that the conclusion is based on tests of a single dose of 200 or 400 mg. Each study evaluated one dose of each agent. No reference to this qualification is made in the advertisements.
3. Again in relation to advertisements (1) and (2) the assurance appears:
"So when your patients need effective everyday pain relief, you can rely on Nurofen."
There is a reference at the foot of each of the three advertisements underneath the face of the "Nurofen" package reading "The everyday alternative".
4. In advertisements (1) and (2), assertions are made to the effect that "Nurofen" (ibuprofen) has been shown to be more effective than "Paracetamol" in headache, muscular pain, sore throat and dental pain.
5. The use of "everyday", it is said, could be read as a reference to the use of "Nurofen" on an everyday basis over a number of days, whereas the words quoted are based only on one dosage and not on the possible eighteen dosages which would be relevant if the tablets are taken in accordance with the instructions on the package for up to a three day period.
6. In advertisement (3), there is reference to "greater profitability" and "The everyday alternative". However, apart from the word "everyday" the other wording did not appear to be complained of except insofar as the advertisement is a reinforcement of the earlier two pages and is an integral part of the three-advertisement pitch to distributors of "Nurofen".
I am informed that the advertisements, which are full page, will appear in sequence, appearing on every second page from advertisement (1) through to (3). In other words, as one turns over the pages of the journal, on the right hand page one is faced with the three consecutive advertisements in the order referred to above.
- Serious Question
The authorities indicate that where comparative advertising is in question, particular care must be exercised to ensure that the products are accurately compared. See Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd (1990) ATPR 41-030; State Government Insurance Commission v JM Insurance Pty Limited (1984) ATPR 40-465. A comparison may be misleading by the omission of material that would be necessary to render the comparison fair. See Hoover (Australia) Pty Ltd v Email Ltd (1991) ATPR 41-149 at 53,116-53,117.
It can be misleading for a corporation which disseminates information not to put forward sufficient information to avoid the possibility that the recipient may be misled. Cf Fraser v NRMA Holdings Ltd (1994) ATPR 41-346 at 42,529-42,530. It can also, in my view, be misleading to make a statement which implies that there is an adequate foundation in scientific knowledge to justify it when taken in its context the scientific statement quoted does not provide a proper foundation. Cf Colgate-Palmolive Pty Ltd v Rexona Pty Ltd (1981) ATPR 40-242; 58 FLR 391; Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) ATPR 40-918; Janssen Pharmaceutical Pty Limited v Pfizer Pty Limited (1986) ATPR 40-654.
The argument of the applicant is that the statement "single doses of non-prescription ibuprofen are well tolerated and demonstrate a side effect profile that is indistinguishable from that of acetaminophen (paracetamol) and placebo" is ambiguous and misleading because the scientific opinion from which the quote is taken, is on the narrow basis of one dosage only and this is not disclosed.
The scientific paper from which the quotation in advertisements (1) and (2) relating to "single doses" is taken, is published in "Pharmacotherapy", Volume 12, Number 5, 1992, page 406. That quotation in full reads as follows:
"These results demonstrate that single doses of nonprescription ibuprofen are well tolerated when administered for the treatment of a variety of painful conditions ... Based on direct comparisons from 2,579 subjects, we conclude that single doses of nonprescription ibuprofen have a side effect profile indistinguishable from that of both acetaminophen and placebo".
When reference is made to single doses in that paper, the reference is to one 200 or 400 mg ibuprofen dosage and 650 or 1,000 mg of acetaminophen as pointed out at p 403 of the paper.
It is submitted that the advertisements, in substance, indicate that the claims apply in respect of more than what normally would be understood to constitute single doses. The reference to doses, using the plural, is important in this respect. The paper goes on to say (at p 405):
"... A single dose is a common pattern of use - fully 60% of individuals treating a headache with a nonprescription drug require no more than 1 day of dosing..."
An available inference from this statement is that in 40% of cases dosing goes on for more than one day.
In my view, there is a serious question raised, on the material before me, that the statements in advertisements (1) and (2) relating to single doses are misleading in the sense that they could be taken by persons to whom they are and may be directed, including pharmacists, doctors and experienced stockists, to indicate that a series of doses extending up to perhaps several days, is well tolerated and demonstrates the specified side effect profile. In fact, the article only substantiates that claim to the extent of one single dosage of either 200 or 400 mg.
The "Nurofen" package instructs the user that if symptoms persist for more than 3 days, a doctor should be consulted. The necessity to consult a doctor on this warning is only in respect of dosages after 3 days usage, during which time, on the basis of the instructions on the "Nurofen" package, an adult could have taken a series of up to 2 tablet dosages 3 times a day for 3 days which amounts to eighteen 200 mg tablets over that time. The package warning is not to take more than 6 tablets per day. The study, of course, is founded on one dosage of 200 to 400 mg.
The applicant also points out that the words "The everyday alternative" are at least ambiguous. On the one hand they can mean that the product can be taken every day over a number of days as a routine means of relief. This is in the sense of usage every day or daily usage. The respondent, on the other hand, contends that the word "everyday" is intended to denote the nature of the pain and relief sought as being an ordinary or everyday type of pain. Counsel for the respondent points to the wording immediately above the "Nurofen" pack shown in advertisement (1) to the effect that when patients need effective everyday pain relief "Nurofen" can be used.
On a perusal, even by trained pharmacists or other specialists or distributors, the advertisements indicate that "Nurofen" can be used on a daily basis as an alternative to "Paracetamol" with indistinguishable side effects.
In my opinion the advertisements are capable of being misleading or deceptive or amounting to a misrepresentation in the context in which they are made. This is so because the study from which the quotation is taken is based on only one single dose and the quotation when read out of this context could be reasonably understood as a reference to more than one dosage.
The second matter raised, to ground an injunction, is that the advertisements indicate equal tolerability for everyday or regular usage. In view of the medical evidence to which I have been directed and the generality of this claim, I consider that the question of the accuracy of this assertion does raise a serious question but that it is finely balanced and by no means as substantial a case on the evidence presently before me as the applicant's case in respect of the references to "single dosage" read in the context of the quoted study. There are substantial bodies of evidence on this second question to support each opposing viewpoint. This evidence has not been tested in cross-examination. My view as to the lesser strength of this argument has influenced me in reaching the conclusion that interlocutory order 1(b) sought by the applicant should not be made.
Balance of Convenience
The respondent has raised three principal considerations which indicate harm to the respondent which it is said cannot be compensated by damages. These are:
(a) The interim injunction is likely to have the effect of a permanent injunction since it will destroy the momentum the respondent is building in the market;
(b) This is especially so in the crucial period leading up to the rescheduling of "Nurofen" from "S3" to "S2", expected in December 1995, so as to make it more readily available to retail purchasers;
(c) The applicant will remain free to profit from its powerful brand name and its use of statements such as "pure and gentle to the stomach" whereas in contrast, the respondent will be restrained from making statements in the same areas.
There are also references to a number of other factors on balance of convenience which in substance are that the possibility of danger to the public from publication of the statements and consequently from the use of the drugs is minimal having regard to the fact that the statements are only made to health professionals; there would no advertising to the public before approximately December 1995; and that there is adequate warning on the packets.
It is said that the granting of an interlocutory injunction would itself harm the public because they will increasingly ask their doctors and pharmacists about the product once the rescheduling has taken effect and the product is more readily available. Also it is said that health professionals will be unable to advise the public properly over the next several months and the respondent will be unable to clear up misconceptions some health professionals may have.
It is also said that similar statements have been publicly made and open to complaint since at least 1992 to the knowledge of the applicant.
Clean Hands
One further matter raised as a discretionary consideration, by the respondent, is that the applicant has "unclean hands" because this application breaches s 46 of the Act in that the applicant, by seeking injunctive relief, is taking wrongful advantage of its market power for the purpose of increasing its market share. I am not persuaded that any proper foundation has been laid for this assertion. As the applicant points out no restraint is sought on the sale and truthful advertising of the respondent's product.
Loss of Momentum
One consideration relied on by the respondent is that it will lose momentum in its advertising campaign. The respondent will not be prevented from advertising altogether. I am not convinced that this consideration should be given sufficient weight either alone or in conjunction with other matters raised to refuse the granting of an injunction in respect of the advertisements in question.
The Public
Although the advertisements are not published directly to the public, they may well have an indirect effect on members of the public.
The advertisements are calculated to inform and influence pharmacists and medical professionals. By informing and influencing these persons it is obvious that they in turn may pass on the information so as to influence customers and users of the products. There is a probability that the claims will filter through to the general public and that they may act on the advice of their pharmacists and other medical professionals. Therefore, it cannot categorically be said that the public will not be influenced or affected as a result of the publications.
Health
As the evidence stands, I am not satisfied that a serious question arises on the material before me to the effect that "Nurofen" could have any adverse impact on public health. I therefore give no weight to this consideration on the balance of convenience issue.
The Present Case
On the present state of the evidence, I am satisfied that there is a serious question to be tried. I think that it reasonably can be argued that the advertisements taken together are capable of being misleading or deceptive to the intended addressees. I am cognisant of the decision of Hillyer J in Sterling Pharmaceuticals (NZ) Ltd v Boots Co (NZ) Ltd (No.2) [1991] 2 NZLR 634 where his Honour refused to grant an interim injunction on the basis that the question before him, which was not identical to the question raised in these proceedings, was finely balanced and that the balance of convenience in all the circumstances of that case favoured the preservation of the status quo. He placed some emphasis on the
fact that the statement complained of had been published since 1985 without any complaint, until a letter in June 1990.
In the present case the exact quotation, from the paper, in the advertisements in question, commenced only from August 1995, although it is said that somewhat similar advertisements and claims had been made in the early period dating from 1989. However, the question before me relates to the misleading nature of the specified advertisements, when compared with the substance of the study, and I do not think there has been delay, inaction or acquiescence in the present case such as would warrant the refusal of an interlocutory injunction.
The grant of the proposed injunction will not prevent the respondent from advertising its product or extolling its asserted virtues. It only prevents such advertising being capable of misleading likely addressees.
The decision of Lockhart J in Sterling Pharmaceuticals Pty Limited v Boots Company (Australia) Pty Limited (1992) 34 FCR 287 does not bear on the present application. That decision was to stand out of the list for eight months an earlier claim by the present applicant pending a decision in the New Zealand litigation referred to earlier. The claim was subsequently settled. His Honour considered that resolution of the New Zealand proceedings should determine the result of substantially similar issues in the Australian proceedings and
he pointed to the manifest undesirability of a multiplicity of proceedings in relation to similar issues.
Accordingly, I propose to grant an interlocutory injunction in this matter, upon the applicant giving the usual undertaking as to damages, in terms of order 1 (a) as set out above. I also propose to make order 2, as set out, and to give the directions sought. The costs of this application should be the applicant's costs in the proceedings.
I certify that this and
the preceding sixteen (16)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 23 August 1995
Counsel for Applicant: Mr D K Catterns QC
Solicitors for Applicant: Freehill Hollingdale & Page
Counsel for Respondent: Mr J T Gleeson
Solicitors for Respondent: Minter Ellison
Date of Hearing: 17, 18 August 1995
Date Judgment Delivered: 23 August 1995