Nurofen manufacturer experiences headache over misleading conduct

Stephen Booth, Rita Khodeir

 

Nurofen has been a well-loved and trusted pain relief brand…until now. The manufacturer of the brand, Reckitt Benckiser, faces millions in fines following the outcome of proceedings in the Federal Court over products in its Nurofen specific-pain range.

The range promises to target specific sites of pain and is branded accordingly. However, in the Federal Court proceedings, Reckitt Benckiser conceded that its promotion of four Nurofen products was misleading. 

In fact, the active ingredient – 342mg ibuprofen lysine - was the same in all of them, and is no more effective at treating the particular type of pain described on its packaging than a product advertised for general use.

Claims permitted for the active ingredient by the Therapeutic Goods Administration include treatment of headaches, dental pain, arthritis, aches and pains associated with the common cold or flu, sinus pain, muscular and rheumatic pain, and reducing fever.

The Federal Court found that because none of the four products is any more or less effective than the others in treating any of the particular symptoms, consumers were therefore likely to be misled into paying a premium price for a product which didn’t deliver as advertised.  The Australian Competition and Consumer Commission (ACCC) which was responsible for instigating the Court proceedings was also concerned that consumers could not easily check the claims made, and so the claims required greater scrutiny.

This decision indicates the subtlety which can be part of a misleading or deceptive conduct issue. The claims made for each of the four Nurofen products were accurate, to the extent that the product would treat the particular type of pain mentioned, but it was misleading to suggest that the products had some specific virtue in treating particular types of pain such as a migraine, when in fact it was equally good for a range of other pains.

In other words, the promotional material claimed a special benefit which the product did not have. The lesson for businesses in this is that you need to take a very broad view of what a claim might mean, and think laterally as to how it might be perceived (by consumers, competitors, and the ACCC), as well as the overall impression that might be given to a consumer. There would have been no problem saying "Nurofen is good for migraine, and a lot of other types of pain too, such as ...", but giving the appearance of being different from other pain killers, when it wasn't, is proving costly for Reckitt Benckiser, with the products to be relabelled in the interim, and withdrawn by mid-March.

This incident will cause Nurofen headaches in more than one area. A company the size of Nurofen could potentially recover from any monetary fine imposed. However, time will tell whether Nurofen’s well known brand reputation will recover from this experience. It serves as a timely reminder that short term gain arising from a promotional campaign can easily be overshadowed by long term brand damage and loss of good will.

If your business needs assistance with product claims including misleading and deceptive conduct, and the impact on your intellectual property, please contact:

Stephen Booth, Principal
Phone: +61 9895 9222
Email: sbooth@colemangreig.com.au

Rita Khodeir, Senior Associate
Phone: +61 9895 9250
Email: rkhodeir@colemangreig.com.au