Reckitt Benckiser (Australia) Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2018] FCAFC 138
Undesirable business practices; misleading conduct; lack of evidence for claims made.
Facts: Reckitt Benckiser (Reckitt) was the manufacturer of Nurofen, a product for headache relief. Nurofen had ibuprofen as the active ingredient. In its advertisements, Reckitt claimed that Nurofen delivered faster and more effective pain relief for headaches than a rival product, Panadol, which used paracetamol as the active ingredient. Reckitt claimed that there was a scientific foundation for the claim that its product was superior to Panadol.
Issue: Were the representations made in its advertisements by Reckitt either misleading or deceptive, or false, in breach of the provisions of the Australian Consumer Law (ACL)
Decision Reckitt had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of the ACL and had made false representations in contravention of ss 29(1)(a) and (g) of the ACL
Reason: Although there was one scientific study that suggested ibuprofen might be more effective in providing relief from headache pain than paracetamol, the totality of scientific evidence available at the time provided no certainty of this claim and in fact suggested that there was no such proof. In the absence of scientific support of the comparisons made in Reckitt’s advertising, the court found that the claims were in breach of the relevant sections of the ACL.