An Australian judge has ruled that New Zealand’s AFT Pharmaceuticals made “misleading or deceptive” claims in adverts for its Maxigesic pain relief drug.
The 52-page judgment, handed down by Mr Justice Gleeson in the Federal Court of Australia on 18 October, found that AFT’s claims about Maxigesic did not have “an adequate scientific foundation” and that the company “engaged in conduct that was liable to mislead the public.”
Both AFT and UK pharma company Reckitt Benckiser market and sell over-the-counter (OTC) painkillers in Australia. AFT’s Maxigesic contains 500mg of paracetamol and 150mg of ibuprofen in a single tablet, with a maximum daily dosage of eight tablets. Reckitt’s Nuromol, meanwhile, contains 500mg of paracetamol and 200mg of ibuprofen, with a maximum daily dosage of three tablets.
Reckitt claimed that three AFT publications, in the form of a print advertisement, a “dose information card” and a pamphlet, misrepresented that Maxigesic provides stronger, more effective pain relief than other paracetamol/ibuprofen combinations, including Nuromol.
The publications contained phrases such as “Maxigesic delivers stronger pain relief than other paracetamol/ibuprofen combinations” and Maxigesic is “the only paracetamol/ibuprofen combination to provide more effective pain relief than a full daily OTC dose of paracetamol or ibuprofen.”
Reckitt claimed the publications violated Australian Consumer Law under the Competition and Consumer Act 2010 through deceptive conduct.
AFT filed cross-claims against Reckitt stating that four print adverts for Nuromol, along with two television adverts, were deceptive in their representations of the drug’s dosage and comparisons with Maxigesic.
After lengthy expert testimony, the court concluded that the Maxigesic print advert and card contained “misleading representations that the Maxigesic goods were of a particular quality, namely, able to provide the stronger and more effective pain relief referred to in the representations.”
Gleeson J also stated that Reckitt did not identify “an adequate foundation in science for the Nuromol superiority representation.”
“I have not made any contravention finding in relation to the Nuromol superiority representation,” he said regarding this, adding that additional findings as to its nature will be needed.
Counsel for Reckitt Benckiser (Australia) PTY Limited
- HWL Ebsworth Lawyers
Partners Craig Powell and Neil Wallman, senior associate Johnathon De La Hoyde
David Studdy SC from Tenth Floor Chambers with Alastair Vincent from Third Floor Wentworth Chambers
Counsel for AFT Pharmaceuticals (AU) PTY Limited
- Corrs Chambers Westgarth
Partner David Fixler, lawyers James Beavis and Kristin Churley
Philip Crutchfield QC from Victorian Bar with Luke Merrick from List G Barristers