Reading time: 3 minutes

Earlier this year, the Australian Competition and Consumer Commission (ACCC) commenced proceedings in the Federal Court of Australia against Reckitt Benckiser, the maker of Nurofen pain relief products. The proceedings were based on the ACCC’s concerns that Nurofen’s line of “Specific Pain” products were misleading for consumers. This month, the Federal Court handed down its decision.

What Was the Problem?

Reckitt Benckiser made four Nurofen Specific Pain products – one for each of back pain, period pain, migraine and tension headache. Each of these products was packaged and promoted to suggest that it was formulated to target the relevant pain type. In reality, the four products had the same formula and active ingredient. None of the products were any more or less effective in treating a specific type of pain.

The ACCC conducted price sampling before instituting proceedings against Reckitt Benckiser, and found that the Specific Pain products were almost twice as expensive as Nurofen’s general pain products and comparable products of competitors.

The ACCC alleged that the Specific Pain products contravened sections 18 and 33 of the Australian Consumer Law (ACL). Section 18 prohibits businesses from engaging in misleading or deceptive conduct. For more details, see our other article explaining what you need to know about misleading conduct. Section 33 of the ACL prohibits a business from engaging in conduct that might mislead the public about the nature, characteristics or suitability for purpose of goods.

What Was the Outcome?

At trial, Reckitt Benckiser admitted some contraventions of sections 18 and 33. The ACCC did not press other contraventions that it initially alleged against Reckitt Benckiser. The parties agreed to resolve the matter through proposed orders. The Federal Court made orders broadly in the terms proposed by the parties.

What Were the Court’s Orders?

The orders made by the Federal Court included the following elements:

  • A declaration that Reckitt Benckiser had breached the Australian Consumer Law;
  • An injunction restraining Reckitt Benckiser from further breaches for a period of three years;
  • Corrective notice and corrective advertising in a national newspaper alerting consumers about Reckitt Benckiser’s breach. The Federal Court noted that these measures had a protective purpose as well as an educative effect; and
  • Amendments to Reckitt Benckiser’s existing compliance program including: 
    • Appointing a compliance officer, 
    • Establishing a complaints handling system, 
    • Training staff, 
    • Providing compliance documents to the ACCC, and 
    • Implementing ACCC recommendations. 

Although Reckitt Benckiser did not have a bad compliance record and had admitted its contraventions, the Federal Court still considered that the orders relating to the compliance program were necessary.

The Federal Court also ordered Reckitt Benckiser to cease further distribution of the Specific Pain products within four weeks and to remove the products from all retail outlets within three months.

The Federal Court’s orders did not cover the amount of pecuniary penalties that would apply to the contraventions. There will be a further hearing on penalties at a later time.

In a press release from the ACCC, chairman Rod Sims emphasised that the ACCC would closely scrutinise any representations that are difficult for consumers to test.

Questions? Get in touch with LegalVision’s consumer lawyers on 1300 544 755.

Webinars

How to Protect and Enforce Your Trade Mark

Wednesday 11 May | 11:00 - 11:45am

Online
Protect your business’ brand from copycats and competitors. Register for this free webinar to learn how.
Register Now

Corporate Governance 101: Responsibilities for New Directors

Friday 13 May | 11:00 - 11:45am

Online
If you are a new company director, join our free webinar to understand your legal compliance obligations. Register today.
Register Now

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Online
Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

Online
If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Online
Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

Online
If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Online
Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Online
Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer